[Federal Register Volume 61, Number 107 (Monday, June 3, 1996)]
[Proposed Rules]
[Pages 27851-27862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13701]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 625

[Docket No. 960520141-6141-01; I.D. 042696A]
RIN 0648-AH05


Summer Flounder and Scup Fisheries; Amendment 8

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 issues this proposed rule and request for comments to

[[Page 27852]]

implement those provisions of Amendment 8 to the Fishery Management 
Plan (FMP) for the Summer Flounder and Scup Fisheries not initially 
disapproved. The amendment would implement management measures for the 
scup fishery in order to reduce fishing mortality and to allow the 
stock to rebuild.

DATES: Public comments must be received on or before July 18, 1996.

ADDRESSES: Comments on this proposed rule should be sent to Dr. Andrew 
A. Rosenberg, Director, Northeast Regional Office, NMFS, One Blackburn 
Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on Summer Flounder and Scup Plan.''
    Comments regarding burden-hour estimates for collection-of-
information requirements contained in this proposed rule should be sent 
to the Northeast Regional Director at the address above and the Office 
of Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Washington, D.C. 20502 (Attention: NOAA Desk Officer).
    Copies of Amendment 8, the final environmental impact statement 
(FEIS), the initial regulatory flexibility analysis (IRFA), the 
regulatory impact review, and other supporting documents are available 
upon request from David R. Keifer, Executive Director, Mid-Atlantic 
Fishery Management Council, Room 2115, Federal Building, 300 South New 
Street, Dover, DE 19901.

FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy 
Analyst, 508-281-9221.

SUPPLEMENTARY INFORMATION:

Background

    The Mid-Atlantic Fishery Management Council (Council) began the 
development of an FMP for scup in 1978. Although preliminary 
development work was done, the plan was not completed. In January 1990, 
the Council and the Atlantic States Marine Fisheries Commission 
(Commission) began to develop a management plan for scup as an 
amendment to the summer flounder FMP. However, its development was 
delayed by a series of amendments to the FMP, and work on a separate 
scup plan was not resumed until 1993.
    The Council accelerated its work on scup measures after the release 
in March 1995 of the Plenary Report of the 19th Stock Assessment 
Workshop (19th SAW). The 19th SAW report established that the scup 
spawning stock biomass was at a record low level and warned that 
recruitment failure in a single year could collapse the fishery. The 
Council and the Commission adopted a scup FMP for NMFS review at their 
meeting in November 1995. Subsequently, NMFS requested that the scup 
regulations be incorporated into the Summer Flounder FMP, as an 
amendment, to reduce the number of separate regulations issued by the 
Federal government. As a result, scup management measures are submitted 
as Amendment 8 to the Summer Flounder and Scup FMP.
    At that same November meeting, the Council also voted to request 
emergency implementation on January 1, 1996, of some of the management 
measures contained in the proposed scup FMP to provide some immediate 
protection to the stock. The efforts of the Council and NMFS to prepare 
and review the required documents associated with emergency action were 
delayed by the government shutdown from December 21, 1995, through 
January 7, 1996, and by additional shutdowns due to severe winter 
weather. An emergency interim rule implemented regulations on March 22, 
1996 (March 27, 1996, 61 FR 13452) that imposed minimum fish size 
requirements of 9 inches (22.9 cm) total length (TL) for the commercial 
fishery, and 7 inches (17.8 cm) TL for the recreational fishery, and a 
minimum codend mesh size of 4 inches (10.2 cm) diamond for trawl 
vessels possessing 4,000 or more lb (1,814 or more kg) of scup. These 
emergency regulations remain in effect through June 25, 1996, at which 
time they would be extended for an additional 90 days at the request of 
the Council.
    Amendment 8 was prepared by the Council and Commission, in 
consultation with the New England and South Atlantic Fishery Management 
Councils. A notice of availability for the proposed amendment was 
published in the Federal Register on May 7, 1996. Copies of Amendment 8 
are available from the Council upon request (see ADDRESSES). The 
amendment revises the summer flounder (Paralichthys dentatus) FMP to 
include management measures for the scup fishery pursuant to the 
Magnuson Fishery Conservation and Management Act, as amended (Magnuson 
Act).
    The management unit for this fishery is scup (Stenotomus chrysops) 
in U.S. waters of the western Atlantic Ocean from 35 deg.15.3' N. 
latitude, the latitude of Cape Hatteras Light, NC, northward to the 
U.S.-Canadian border. Implementing regulations are authorized by the 
Magnuson Act and are found at 50 CFR part 625, subparts C and D.

Status of the Stocks

    Scup are currently overexploited and at a low biomass level. The 
status of this stock is fully explained in the emergency interim rule 
(March 27, 1996, 61 FR 13452) and, for the sake of brevity, is not 
repeated here. Overfishing for scup in Amendment 8 is defined in the 
FMP as fishing in excess of Fmax. Fmax is the biological 
reference point corresponding to an exploitation rate of 19 percent, 
and the level of fishing mortality (F) that produces maximum yield per 
recruit.

Disapproved Measures

    NMFS, on behalf of the Secretary of Commerce, disapproved six 
measures proposed in Amendment 8 upon preliminary evaluation of the 
amendment as authorized in section 304(a)(1)(A)(ii) of the Magnuson 
Act. Thus, they are not included in this proposed rule. These 
provisions would have conferred moratorium permit eligibility upon 
vessels that were re-rigging on January 26, 1993, and landed scup prior 
to the implementation of Amendment 8; require vessels to keep scup 
catches of less than 4,000 lb (1,814 kg) (the level at which the 
minimum codend mesh requirement is triggered) in 100-lb (45.4-kg) 
containers to enhance enforcement; require NMFS to accept state dealer 
permits in lieu of the required Federal permit; require NMFS to deny 
access to the exclusive economic zone (EEZ) to vessels from states that 
do not implement recreational measures equivalent to those specified in 
Amendment 8; defer to state regulations to define scup pot requirements 
for the residents of that state; and require any landings in excess of 
the recreational harvest limit to be subtracted from the harvest limit 
of the following year. These provisions have been determined to be 
inconsistent with the national standards of the Magnuson Act or other 
applicable law.
    As worded, the open-ended moratorium eligibility criterion would 
allow any vessel that could demonstrate ``re-rigging''--i.e., being 
made ``capable of catching scup''--on January 26, 1993, to qualify for 
a moratorium permit if it could demonstrate a landing of scup prior to 
the implementation date of this amendment. While the re-rigging 
provision reasonably addresses a fairness issue, the protracted aspect 
of the landing requirement is inconsistent with national standard 4. 
The landing requirement of this criterion allows a re-rigging vessel 
over 3 years to land scup in order to qualify for a moratorium permit. 
This fact is not reasonably calculated to promote conservation in

[[Page 27853]]

light of the severely overfished nature of the stock, and would allow 
more vessels into the fishery than would otherwise enter if a vessel 
owner were forced to demonstrate an intent to participate in the 
fishery by landing scup within a more reasonable time frame after re-
rigging occurs.
    The provision that would require fishing vessels using small mesh 
to box scup catches of less than 4,000 lb (1,814 kg) in standard 100-lb 
(45.4-kg) totes was proposed to facilitate enforcement of the mesh 
provisions. Potentially, a vessel could have up to 40 of these 
containers on board, while vessels possessing over 4,000 lb (1,814 kg) 
would not have to box their catch. Boxing up to 40 totes could prove 
infeasible for small vessels. There is nothing in the administrative 
record regarding the impact of this measure on the industry. This 
measure could be challenged as being arbitrary and capricious, and, 
therefore, may violate the Administrative Procedure Act (APA).
    The measure that would require NMFS to recognize state dealer 
permits in lieu of Federal dealer permits, if the permits contain the 
necessary information and are forwarded to NMFS by the appropriate 
state, was proposed as a way of easing the administrative burden on 
dealers. However, as proposed, this measure could not be implemented 
effectively without imposing significant costs. The measure would 
require changes to state dealer permit requirements, and extensive 
modifications to both the state and Federal computer systems, to make 
them comparable in order for the measure to be implemented in a manner 
that would not undermine the data collection system in the Northeast 
Region. Thus, at this time, the measure is not consistent with national 
standard 7.
    The provision that would require NMFS to prohibit the landing of 
scup from the EEZ by recreational vessels (party, charter, and private) 
of any state not in compliance with the recreational possession limit, 
size limits, and season was disapproved, because it discriminates 
between residents of different states and is inconsistent with national 
standard 4. The measure would penalize recreational harvesters by 
denying them access to fish in any portion of the EEZ based on the 
inaction of their state of residency.
    The provision that would adopt the definition of scup pot or trap 
in the state regulations that apply to a vessel's principal port of 
landing is problematic from a number of perspectives. First, not all 
coastal states have a definition of a scup pot or trap. As the 
specified escape vent requirement is dependent upon a defined pot or 
trap, some fishermen would be subject to the escape vent requirement, 
while others landing principally in a state without a defined pot or 
trap would not. This inequitable provision is thus inconsistent with 
national standard 4, and is also not in accordance with the amendment's 
objective to reduce fishing mortality on immature scup.
    Second, the administrative record provides no rationale for using 
the definition of scup pot or trap at a vessel's principal port of 
landing, as opposed to its home port, as a basis for imposing an escape 
vent requirement. Significant enforcement concerns arise from this 
provision and should have been addressed in the administrative record. 
For example, traps pulled, or vessels boarded, at sea to monitor 
compliance with the escape vent requirement would not identify a 
principal port of landing with the certainty necessary to prosecute an 
alleged violation. The FMP contains no definition of principal port of 
landing and even if the term were defined, verification of the 
principal port of landing would be unreasonably cumbersome. Therefore, 
the failure of the administrative record to discuss the rationale for 
the definition could cause adoption of this provision to violate the 
APA.
    The provision that would deduct the annual recreational harvest in 
excess of the specified limit from the limit for the following year 
would base the deductions on the results of the Marine Recreational 
Fishery Statistics Survey (MRFSS). This measure impacts the annual 
allocation of the recreational sector of the fishery with no clear 
conservation benefit, in violation of national standard 4. The MRFSS is 
an excellent fishery management tool for the purpose for which it was 
designed, that is, giving an overall projection of recreational catch 
from the recreational fishery from Maine to Texas. However, the survey 
was not intended to be used as a basis for calculating an overage in 
the recreational fishery that would then be deducted from the quota 
established for the subsequent year. The survey variability becomes 
problematic, and this problem is further exacerbated if the fishery is 
managed on a regional quota basis as is a possibility in the scup 
fishery. In addition, the survey variability could affect residents of 
different states unevenly with respect to quota overages. These 
problems make the provision inconsistent with national standard 4.
    Likewise, because the survey is based on contacts with recreational 
fishermen, it reflects a sampling variability in addition to variations 
in the stock. The effects of this sampling variability render its use 
to calculate overages inconsistent with national standard 6. In failing 
to account for these variations, the use of the survey affects the 
overall ability of the entire scup quota management process to achieve 
on a continuing basis, the optimum yield from this fishery. This raises 
concern regarding its consistency with national standard 1. Finally, it 
would take a significant expenditure of funds to reduce the survey 
variability, especially as the geographic area for which estimates are 
made is reduced, to render it consistent with national standard 2. This 
conflicts with national standard 7.
    The Council may resubmit proposed measures under section 
304(b)(3)(A) of the Magnuson Act that NMFS disapproved during 
preliminary evaluation. Such measures should address the deficiencies 
described by NMFS.

Additional Concerns

    NMFS has concerns about the enforceability of the 4,000-lb (1,814-
kg) threshold for triggering the minimum mesh requirement. The public 
is encouraged to submit comments about the feasibility of determining 
whether catches exceed the threshold level. NMFS is also concerned 
about the proposed minimum sizes for escape vents in scup pots or 
traps. The Council specified a minimum size of 3.1 inches (7.9 cm) in 
diameter for circular vents, a minimum size of 2.25 inches (5.7 cm) on 
each side for square vents, and an ``equivalent'' minimum size for 
rectangular vents. NMFS seeks public comments on the proposed minimum 
size specification for rectangular vents because the meaning of 
``equivalent'' is unclear.

Proposed Measures

Vessel, Dealer, and Operator Permits

    The Council proposes to establish a moratorium on commercial vessel 
permits for the directed fishery for scup. Any owner or operator of a 
vessel desiring to fish for scup within the EEZ for sale, or transport, 
or delivery for sale, of any scup taken within the EEZ would have to 
obtain a permit from NMFS for that purpose. Vessel owners would be 
required to demonstrate past participation in the fishery to obtain a 
commercial moratorium permit. The Council proposes to limit moratorium 
permits to vessels with documented

[[Page 27854]]

landings of scup for sale between January 26, 1988, and January 26, 
1993.
    The owner or operator of a party or charter boat (vessel for hire) 
desiring to fish for scup within the EEZ would have to obtain a 
charter/party boat permit from NMFS for that purpose. A party or 
charter boat could have both a charter/party boat permit and a 
commercial moratorium permit to catch and sell if the vessel meets the 
commercial vessel qualification requirements set forth in Amendment 8. 
However, such a vessel could not fish under any existing commercial 
rules if it were carrying passengers for a fee.
    An operator of a vessel with any permit issued under this FMP would 
be required to have a Federal operator permit. The operator permits 
issued to operators in the Northeast multispecies, American lobster, 
Atlantic sea scallops and/or Atlantic mackerel, squids, and butterfish 
fisheries, would satisfy this requirement. The operator would be held 
accountable for violations of the fishing regulations and could be 
subject to a permit sanction. During the permit sanction period, the 
operator could not work in any capacity aboard a federally permitted 
fishing vessel.
    Any dealer of scup would be required to have a NMFS dealer permit 
under the FMP. A dealer of scup would be defined as a person or firm 
that receives scup for a commercial purpose from the owner or operator 
of a vessel issued a moratorium permit pursuant to this FMP, other than 
solely for transport on land.

Reporting and Recordkeeping

    The Council intends to institute recordkeeping and reporting 
requirements for scup that are identical to those required by the 
Atlantic Mackerel, Squid, and Butterfish, the Summer Flounder, the 
Northeast Multispecies, and the Atlantic Sea Scallop Fishery Management 
Plans. The logbooks in use for those fisheries would be used to meet 
this requirement, so vessels or dealers reporting under those FMPs 
would not be subject to any additional reporting burdens, if a given 
vessel also harvested scup.
    Commercial logbooks would be submitted on a monthly basis by 
Federal moratorium and charter/party boat permit holders in order to 
monitor the fishery.
    Dealers with permits issued pursuant to the FMP would submit weekly 
reports showing all species purchased in pounds, and the name and 
permit number of the vessels from which the species were purchased. 
Buyers that do not purchase directly from vessels would not be required 
to submit reports under this provision.

Minimum Fish Sizes

    Amendment 8 would establish minimum fish sizes that could be 
adjusted annually by the FMP Monitoring Committee (Monitoring 
Committee). The initial minimum fish sizes would be 9 inches (22.9 cm) 
TL for the commercial fishery and 7 inches (17.8 cm) TL for the 
recreational fishery.

Minimum Mesh Size

    The minimum mesh-size requirement for otter trawl vessels 
possessing a threshold catch of 4,000 lb or more (1,814 kg or more) of 
scup would be a minimum codend mesh size of 4.0 inches (10.2 cm) 
diamond mesh, inside measure, applied throughout the codend for at 
least 75 continuous meshes forward of the terminus of the net or, if 
the net is not long enough for such a measurement, the terminal \1/3\ 
of the net, measured from the terminus of the codend to the head rope. 
The minimum net mesh size and the threshold level could be adjusted 
annually, following the Monitoring Committee process set forth in the 
amendment.

Maximum Roller Size

    Amendment 8 would prohibit owners or operators of vessels issued 
moratorium permits from using roller rig trawl gear equipped with 
rollers greater than 18 inches (45.7 cm) in diameter. Maximum roller 
size could be changed annually following the Monitoring Committee 
process set forth in the amendment.

Pot and Trap Gear Requirements

    Scup pots and traps would be required to have a circular escape 
vent with a minimum diameter of 3.1 inches (7.9 cm) or a square escape 
vent with a minimum of 2.25 inches (5.7 cm) for each side (or an 
equivalent rectangular escape vent). The escape vent provision would be 
implemented at the start of the first calendar year following approval 
of Amendment 8, so that fishermen would not be required to pull their 
pots and add vents in the middle of the season. Scup pots and traps 
would be required to have hinges and fasteners on one panel or door 
made of degradable materials.
    The escape vent requirement could be adjusted annually following 
the Monitoring Committee process set forth in the amendment.

Seasonal and Area Closures

    Gear-specific seasonal and area closures could be implemented upon 
the recommendation of the Monitoring Committee, if required to reduce 
discards in the commercial fishery and prevent quota overruns.

Commercial Quota and Recreational Harvest Limit

    In the second year of implementation of the amendment, a coastwide 
harvest limit would be specified at a level that would reduce the 
exploitation rate to the level specified in the rebuilding schedule. 
This harvest limit would be allocated 78 percent to the commercial 
fishery, via a coastwide commercial quota, and 22 percent to the 
recreational fishery, via a recreational harvest limit. The coastwide 
harvest limit will be set annually following the Monitoring Committee 
process set forth in the amendment.
    The Council and the Commission may, in the future, alter the system 
to distribute and manage the annual commercial quota. Coastwide, 
regional, and state-by-state quotas may be considered in combination 
with different fractions of the fishing year.

Recreational Measures

    Beginning in the second year of implementation of the amendment, 
recreational landings would be compared to annual target harvest levels 
to determine if modifications to the recreational season, possession 
limit, and minimum size limit are required in the following year in 
order for the fishery to remain within specified harvest limits.

Classification

    Section 304(a)(1)(D)(ii) of the Magnuson Act, as amended, requires 
NMFS to publish regulations proposed by a Council within 15 days of 
receipt of the amendment and proposed regulations. At this time, NMFS 
has not determined whether the measures in Amendment 8 that these rules 
would implement are 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 an FEIS for Amendment 8, a copy of which may 
be obtained from the Council (see ADDRESSES). The Council has 
determined that this rule, if implemented, would be consistent to the 
maximum extent practicable with the approved coastal management 
programs of the Atlantic states. New Hampshire, Massachusetts, Rhode 
Island, Connecticut, New Jersey, Pennsylvania, Delaware, and North 
Carolina agreed with this determination.

[[Page 27855]]

Maine, New York, and Virginia did not respond, and their concurrence is 
inferred.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration, that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. Amendment 8, as indicated in the regulatory impact 
review prepared by the Council, may reduce gross revenues of some 
vessels by more than 5 percent, or increase operating costs by more 
than 5 percent as a result of increases in compliance costs. However, 
it is unlikely that these impacts would affect more than 20 percent of 
the small entities engaged in this fishery because of the large 
assortment of other species also harvested by most vessels that harvest 
scup. In addition, most of the industry already use the proposed 4-inch 
(10.2-cm) mesh size and would not be affected by the regulation. 
Therefore, this rule would not have a significant impact on a 
substantial number of small entities.
    This proposed rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA). Mandatory dealer 
reporting and the reporting of annual employment data under the Annual 
Processed Products Reports have been approved by OMB under control 
numbers 0648-0229, and 0648-0018, respectively. Dealer reporting 
responses are estimated to take 2 minutes and employment data responses 
6 minutes. The proposed rule also contains new requirements that have 
been submitted to OMB for approval. These requirements and their 
estimated response times are: Vessel permits and permit appeals at 30 
minutes per response, operator permits at 1 hour per response, observer 
notification requirement at 2 minutes per response, vessel marking (3 
locations) at 15 minutes per marking, and requests for an experimental 
fishing exemption at 1.9 hours.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection of information subject to the 
requirements of the PRA unless that collection of information displays 
a currently valid OMB control number.
    The response estimates shown 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 any of these burden 
estimates or any other aspect of the collection of information to NMFS 
and OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 625

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 28, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 625 is 
proposed to be amended as follows:

PART 625--SUMMER FLOUNDER AND SCUP FISHERIES

    1. The authority citation for part 625 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. The part heading is revised as set forth above and the headings 
for subparts A and B are revised to read, ``Subpart A--General 
Provisions, Summer Flounder'', and ``Subpart B--Management Measures, 
Summer Flounder'', respectively.
    3. Subparts C and D, are revised to read as follows:

Subpart C--General Provisions, Scup

Sec.
625.31  Purpose and scope.
625.32  Definitions.
625.33  Relation to other laws. 625.34 Vessel permits.
625.35  Operator permit.
625.36  Dealer permit.
625.37  Recordkeeping and reporting requirements.
625.38  Vessel identification.
625.39  Prohibitions.
625.40  Facilitation of enforcement.
625.41  Penalties.

Subpart C--General Provisions, Scup


Sec. 625.31   Purpose and scope.

    The regulations in this part govern the conservation and management 
of scup in U.S. waters north of 35 deg.15.3' N. lat., (Cape Hatteras 
Light, NC), to the U.S./Canadian border.


Sec. 625.32  Definitions.

    In addition to the definitions in the Magnuson Act and Sec. 620.2 
of this chapter, the terms used in this part have the following 
meanings:
    Dealer means any person who receives scup for a commercial purpose 
from the owner or operator of a vessel issued a moratorium permit under 
Sec. 625.33 other than solely for transport on land.
    Fishery Management Plan (FMP) means the Fishery Management Plan for 
the Summer Flounder and Scup Fisheries and any amendments thereto.
    Fishing commercially means retaining scup in excess of the 
possession limit specified in Sec. 625.54.
    Fishing year means the 12-month period beginning on January 1, and 
ending on December 31.
    Scup means the species Stenotomus chrysops.
    Scup Monitoring Committee (Monitoring Committee) means a committee 
made up of staff representatives of the Mid-Atlantic, New England, and 
South Atlantic Fishery Management Councils, the Northeast Regional 
Office of NMFS, the Northeast Fisheries Science Center, and Commission 
representatives. The Council Executive Director or a designee chairs 
the Committee.
    Total length (TL) means the straight-line distance from the tip of 
the snout to the end of the tail (caudal fin) while the fish is lying 
on its side.


Sec. 625.33  Relation to other laws.

    (a) The relation of this part to other laws is set forth in 
Sec. 620.3 of this chapter and paragraph (b) of this section.
    (b) Nothing in these regulations supersedes more restrictive state 
management measures.
    (c) Additional regulations governing fishing for scup by foreign 
vessels in the EEZ are set forth in 50 CFR Part 611, subparts A and C.


Sec. 625.34  Vessel permits.

    (a) General--(1) Requirement. Subject to the eligibility 
requirements specified in paragraphs (b) and (c) of this section, the 
owner of a vessel of the United States, including a party or charter 
vessel, must obtain a permit issued under this part to fish for or 
retain scup in the EEZ.
    (2) Exemption. Any vessel, other than a party or charter boat, that 
observes the possession limit, multiplied by the number of persons on 
board, in Sec. 625.55 is exempt from the permit requirement.
    (3) Condition. Vessel owners who apply for a fishing vessel permit 
under this section must agree, as a condition of the permit, that the 
vessel's fishing activities, catch, and pertinent gear (without regard 
to whether such fishing occurs in the EEZ or landward of the EEZ, and 
without regard to where such fish or gear are possessed, taken or 
landed) will be subject to all requirements of this part. All such 
fishing activities, catch, and gear will remain subject to all 
applicable state requirements. If a requirement of this part differs 
from a management measure required by state law, any vessel owner 
permitted to fish in the EEZ must comply with the more restrictive

[[Page 27856]]

requirement. Owners and operators of vessels fishing under the terms of 
a moratorium permit issued pursuant to paragraph (b) of this section 
must also agree, as a condition of the permit, not to land scup in any 
state if the Regional Director has determined there is no longer 
commercial quota available.
    (b) Moratorium permit. (1) A vessel is eligible for a moratorium 
permit to fish for and retain scup in excess of the possession limit in 
Sec. 625.55 if it meets any of the following criteria:
    (i) The vessel landed and sold scup between January 26, 1988, and 
January 26, 1993; or
    (ii) The vessel is replacing a vessel of substantially similar 
harvesting capacity that involuntarily left the scup fishery during the 
moratorium, and both the entering and replaced vessels are owned by the 
same person. Vessel permits issued to vessels that involuntarily leave 
the fishery may not be combined to create larger replacement vessels.
    (iii) Vessels that are judged unseaworthy by the U.S. Coast Guard 
for reasons other than lack of maintenance may be replaced by a vessel 
of substantially similar harvesting capacity.
    (2) Restriction. No one may apply for the permit specified in 
paragraph (b)(1) of this section more than 12 months after the 
effective date of these regulations, or the events specified under 
paragraphs (h)(1) and (2) of this section. This section does not affect 
annual permit renewals.
    (3) Appeal of denial of permit. (i) Any applicant denied a 
moratorium permit may appeal to the Regional Director within 30 days of 
the notice of denial. Any such appeal shall be in writing. The only 
ground for appeal is that the Regional Director erred in concluding 
that the vessel did not meet the criteria in paragraph (b)(1)(i) of 
this section. The appeal shall set forth the basis for the applicant's 
belief that the Regional Director's decision was made in error.
    (ii) The appeal may be presented, at the option of the applicant, 
at a hearing before an officer appointed by the Regional Director.
    (iii) The hearing officer shall make a recommendation to the 
Regional Director.
    (iv) The decision on the appeal by the Regional Director is the 
final decision of the Department of Commerce.
    (c) Party and charter boat permit. Any party or charter boat is 
eligible for a permit to fish, other than a moratorium permit, if it is 
carrying passengers for hire, and is then subject to the possession 
limits specified in Sec. 625.56.
    (d) Vessel Permit Application. (1) An application for a permit 
under this section must be submitted and signed by the owner of the 
vessel on an appropriate form obtained from the Regional Director at 
least 30 days prior to 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. If the applicant fails to correct the deficiency within 30 
days following the date of notification, the application will be 
considered abandoned. Applicants for moratorium permits shall provide 
information with the application sufficient for the Regional Director 
to determine if the vessel meets the eligibility requirements. Dealer 
weighout forms and notarized statements from marine architects or 
surveyors or shipyard officials will be considered acceptable forms of 
proof.
    (2) Information requirements. In addition to applicable information 
required to be provided by paragraph (d)(1) of this section, an 
application for a permit under this section 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 valid 
copy of the vessel's U.S. Coast Guard documentation or, if 
undocumented, the vessel's state registration number and a copy of the 
current state registration; home port and principal port of landing; 
overall length; gross tonnage; net tonnage; engine horsepower; year the 
vessel was built; type of construction and type of propulsion; 
approximate fish hold capacity; type of fishing gear used by the 
vessel; number of crew; permit category; if the owner is a corporation, 
a copy of the Certificate of Incorporation 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 Partnership 
Agreement and the names and addresses of all partners; if there is more 
than one owner, names of all owners having owned more than a 25-percent 
interest; the name and signature of the owner or the owner's authorized 
representative; permit number of any current or, if expired, previous 
Federal fishery permit issued to the vessel; a copy of charter/party 
boat license and number of passengers the vessel is licensed to carry 
(charter and party boats); and any other information required by the 
Regional Director to manage the fishery.
    (e) Fees. The Regional Director may charge a fee to recover 
administrative expenses of issuing a permit required under this 
section. The amount of the fee is calculated in accordance with the 
procedures of the NOAA Finance Handbook (available from the Regional 
Director) for determining administrative costs of each special product 
or service. The fee may not exceed such costs and is specified with 
each application form. The appropriate fee must accompany each 
application; if it does not, the application will be considered 
incomplete for purposes of paragraph (g) of this section. Any fee paid 
by an insufficiently funded commercial instrument shall render any 
permit issued on the basis thereof null and void.
    (f) Issuance. (1) Except as provided in subpart D of 15 CFR part 
904, the Regional Director will issue a permit under this section 
within 30 days of receipt of the application unless:
    (i) The applicant has failed to submit a complete application as 
described in paragraph (f) of this section. An application is complete 
when all requested forms, information, documentation, and fees, if 
applicable, have been received;
    (ii) The application was not received by the Regional Director by 
the deadlines set forth in paragraph (b)(3) of this section; or
    (iii) The applicant has failed to comply with all applicable 
reporting requirements of Sec. 625.37 during the 12 months immediately 
preceding the date of application.
    (2) Upon receipt of an incomplete application, or an application 
from a person who has not complied with all applicable reporting 
requirements of Sec. 625.37(b) during the 12 months immediately 
preceding the application, the Regional Director will notify the 
applicant of the deficiency. If the applicant fails to correct the 
deficiency within 30 days of the Regional Director's notification, the 
application will be considered abandoned.
    (g) Expiration. Except as provided in paragraph (b)(1)(ii) of this 
section, a permit expires:
    (1) When the owner retires the vessel from the fishery;
    (2) Upon the renewal date specified on the permit; or
    (3) When the ownership of the vessel changes. However, the Regional 
Director may authorize the continuation of a moratorium permit for the 
scup fishery if the new owner so requests. Applications for permit 
continuations must be addressed to the Regional Director.
    (h) Duration. A permit is valid until it is revoked, suspended, or 
modified under 15 CFR Part 904, or until it otherwise expires or 
ownership changes or the applicant has failed to report any

[[Page 27857]]

change in the information on the permit application to the Regional 
Director as specified in paragraph (k) of this section.
    (i) Replacement. Replacement permits for an otherwise valid permit 
may be issued by the Regional Director when requested in writing by the 
owner or authorized representative, stating the need for replacement, 
the name of the vessel, and the Federal fisheries permit number 
assigned. An application for a replacement permit will not be 
considered a new application. An appropriate fee may be charged for 
issuance of the replacement permit.
    (j) Transfer. Permits issued under this part are not transferable 
or assignable. A permit will be valid only for the fishing vessel and 
owner for which it is issued.
    (k) Change in application information. Any change in the 
information specified in paragraph (d)(2) of this section must be 
submitted by the applicant in writing to the Regional Director within 
15 days of the change. If the written notice of the change in 
information is not received by the Regional Director within 15 days, 
the permit is null and void.
    (l) Alteration. Any permit that has been altered, erased, or 
mutilated is invalid.
    (m) Display. The permit must be maintained in legible condition and 
displayed for inspection upon request by any authorized officer.
    (n) Sanctions. Procedures governing enforcement-related permit 
sanctions and denials are found at Subpart D of 15 CFR part 904.


Sec. 625.35  Operator permit.

    (a) General. Any operator of a vessel issued a valid Federal scup 
permit under this part, or any operator of a vessel fishing for scup in 
the EEZ or in possession of scup in or harvested from the EEZ, must 
have and carry on board a valid operator's permit issued under this 
part. An operator permit issued pursuant to parts 649, 650, 651, or 655 
shall satisfy the permitting requirements of this section.
    (b) Operator permit application. Applicants for a permit under this 
section must submit a completed permit application on an appropriate 
form obtained from the Regional Director. The application must be 
signed by the applicant and submitted to the Regional Director at least 
30 days prior to 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.
    (c) Condition. Vessel operators who apply for an operator's permit 
under this section must agree as a condition of this permit that the 
operator and vessel's fishing, catch, and pertinent gear (without 
regard to whether such fishing occurs in the EEZ or landward of the 
EEZ, and without regard to where such fish or gear are possessed, 
taken, or landed), are subject to all requirements of this part while 
fishing in the EEZ or aboard a vessel permitted under Sec. 625.34. The 
vessel and all such fishing, catch, and gear will remain subject to all 
applicable state or local requirements. Further, such operators must 
agree as a condition of this permit that, if the permit is suspended or 
revoked pursuant to 15 CFR part 904, the operator cannot be aboard any 
fishing vessel issued a Federal Fisheries Permit or any vessel subject 
to Federal fishing regulations while the vessel is at sea or engaged in 
offloading. If a requirement of this part and a management measure 
required by state or local law differ, any operator issued a permit 
under this part must comply with the more restrictive requirement.
    (d) Information requirements. An applicant must provide at least 
all the following information and any other information required by the 
Regional Director: Name, mailing address, and telephone number; date of 
birth; hair color; eye color; height; weight; social security number 
(optional) and signature of the applicant. The applicant must also 
provide two recent (no more than 1 year old) color passport-size 
photographs.
    (e) Fees. The Regional Director may charge a fee to recover the 
administrative expense of issuing a permit required under this section. 
The amount of the fee is calculated in accordance with the procedures 
of the NOAA Finance Handbook for determining the administrative costs 
of each special product or service. The fee may not exceed such costs 
and is specified on each application form. The appropriate fee must 
accompany each application; if it does not, the application will be 
considered incomplete for purposes of paragraph (f) of the section. Any 
fee paid by an insufficiently funded commercial instrument shall render 
any permit issued on the basis thereof null and void.
    (f) Issuance. Except as provided in Subpart D of 15 CFR part 904, 
the Regional Director shall issue an operator's permit within 30 days 
of receipt of a completed application if the criteria specified herein 
are met. Upon receipt of an incomplete or improperly executed 
application, the Regional Director will notify the applicant of the 
deficiency in the application. If the applicant fails to correct the 
deficiency within 30 days following the date of notification, the 
application will be considered abandoned.
    (g) Expiration. A Federal operator permit will expire upon the 
renewal date specified in the permit.
    (h) Duration. A permit is valid until it is revoked, suspended or 
modified under 15 CFR part 904, or otherwise expires, or the applicant 
has failed to report a change in the information on the permit 
application to the Regional Director as specified in paragraph (k) of 
this section.
    (i) Replacement. Replacement permits, for otherwise valid permits, 
may be issued by the Regional Director when requested in writing by the 
applicant, stating the need for replacement and the Federal operator 
permit number assigned. An applicant for a replacement permit must also 
provide two recent color passport-size photos of the applicant. An 
application for a replacement permit will not be considered a new 
application. An appropriate fee may be charged.
    (j) Transfer. Permits issued under this part are not transferable 
or assignable. A permit is valid only for the person to whom it is 
issued.
    (k) Change in application information. Notice of a change in the 
permit holder's name, address, or telephone number must be submitted in 
writing to, and received by, the Regional Director within 15 days of 
the change in information. If written notice of the change in 
information is not received by the Regional Director within 15 days, 
the permit is void.
    (l) Alteration. Any permit that has been altered, erased, or 
mutilated is invalid.
    (m) Display. Any permit issued under this part must be maintained 
in legible condition and displayed for inspection upon request by any 
authorized officer.
    (n) Sanctions. Vessel operators with suspended or revoked permits 
may not be aboard a federally permitted fishing vessel in any capacity 
while the vessel is at sea or engaged in offloading. Procedures 
governing enforcement-related permit sanctions and denials are found at 
Subpart D of 15 CFR part 904.
    (o) Vessel owner responsibility. Vessel owners are responsible for 
ensuring that their vessels are operated by an individual with a valid 
operator's permit issued under this section.


Sec. 625.36  Dealer permit.

    (a) General. Any dealer must have a valid permit issued under this 
part in their possession.
    (b) Dealer application. Applicants for a permit under this section 
must submit

[[Page 27858]]

a completed application on an appropriate form provided by the Regional 
Director. The application must be signed by the applicant and submitted 
to the Regional Director at least 30 days before the date upon 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.
    (c) Information requirements. Applications must contain at least 
the following information and any other information required by the 
Regional Director: Company name, place(s) of business, mailing 
address(es) and telephone number(s); owner's name; dealer permit number 
(if a renewal); and name and signature of the person responsible for 
the truth and accuracy of the report. If the dealer is a corporation, a 
copy of the Certificate of Incorporation must be included with the 
application. If the dealer is a partnership, a copy of the Partnership 
Agreement and the names and addresses of all partners must be included 
with the application.
    (d) Fees. The Regional Director may charge a fee to recover the 
administrative expense of issuing a permit required under this section. 
The amount of the fee is calculated in accordance with the procedures 
of the NOAA Finance Handbook for determining administrative costs of 
each special product or service. The fee may not exceed such costs and 
is specified with each application form. The appropriate fee must 
accompany each application; if it does not, the application will be 
considered incomplete for purposes of paragraph (b)(3) of this section. 
Any fee paid by an insufficiently funded commercial instrument shall 
render any permit issued on the basis thereof null and void.
    (e) Issuance. Except as provided in subpart D of 15 CFR part 904, 
the Regional Director will issue a permit at any time during the 
fishing year to an applicant unless the applicant has failed to submit 
a completed application. An application is complete when all requested 
forms, information, and documentation have been received and the 
applicant has submitted all applicable reports specified in 
Sec. 625.37(a). Upon receipt of an incomplete or improperly executed 
application, the Regional Director will notify the applicant of the 
deficiency in the application. If the applicant fails to correct the 
deficiency within 30 days following the date of notification, the 
application will be deemed abandoned.
    (f) Expiration. A permit will expire upon the renewal date 
specified in the permit.
    (g) Duration. A permit is valid until it is revoked, suspended or 
modified under 15 CFR part 904, or otherwise expires, or ownership 
changes, or the applicant has failed to report any change in the 
information on the permit application to the Regional Director.
    (h) Replacement. Replacement permits, for otherwise valid permits, 
may be issued by the Regional Director when requested in writing by the 
applicant, stating the need for replacement and the Federal dealer 
permit number assigned. An application for a replacement permit shall 
not be considered a new permit. An appropriate fee may be charged.
    (i) Transfer. Permits issued under this part are not transferable 
or assignable. A permit is valid only for the person to whom, or other 
business entity to which, it is issued.
    (j) Change in application information. Within 15 days after a 
change in the information contained in an application submitted under 
this section, a written report of the change must be submitted to, and 
received by, the Regional Director. If written notice of the change in 
information is not received by the Regional Director within 15 days, 
the permit is void.
    (k) Alteration. Any permit that is altered, erased, or mutilated is 
invalid.
    (l) Display. Any permit, or valid duplicate thereof, issued under 
this part must be maintained in legible condition and displayed for 
inspection upon request by any authorized officer.
    (m) Federal versus state requirements. If a requirement of this 
part differs from a fisheries management measure required by state law, 
any dealer issued a Federal dealer permit must comply with the more 
restrictive requirement.
    (n) Sanctions. Procedures governing enforcement-related permit 
sanctions and denials are found at subpart D of 15 CFR Part 904.


Sec. 625.37  Recordkeeping and reporting requirements.

    (a) Dealers--(1) Weekly report. Dealers must send by mail to the 
Regional Director, or official designee, on a weekly basis on forms 
supplied by or approved by the Regional Director, a report of fish 
purchases. If authorized in writing by the Regional Director, dealers 
may submit reports electronically or through other media. The following 
information and any other information required by the Regional 
Director, must be provided in the report: Name and mailing address of 
dealer; dealer number; name and permit number of the vessels from which 
fish are landed or received; dates of purchases; pounds by species; 
price by species; and port landed. If no fish are purchased during the 
week, a report so stating must be submitted. All report forms must be 
signed by the dealer or other authorized individual.
    (2) Annual report. All persons required to submit reports under 
paragraph (a)(1) of this section are required to complete the 
``Employment Data'' section of the Annual Processed Products Reports; 
completion of the other sections on that form is voluntary. Reports 
must be submitted to the address supplied by the Regional Director.
    (3) Inspection. Upon the request of an authorized officer, or by an 
employee of NMFS designated by the Regional Director to make such 
inspections, the dealer must make immediately available for inspection 
copies of the required reports that have been submitted, or should have 
been submitted, and the records upon which the reports were based.
    (4) Record retention. Copies of reports, and records upon which the 
reports were based, must be retained and be available for review for 1 
year after the date of the last entry on the report. The dealer must 
retain such reports and records at his/her principal place of business.
    (5) Submitting reports. Reports must be received, or postmarked if 
mailed, within 3 days after the end of each reporting week. Each dealer 
will be sent forms and instructions, including the address to which to 
submit reports, shortly after receipt of a dealer permit.
    (6) At-sea activities. All persons purchasing, receiving, or 
processing any scup at sea, harvested in or from the EEZ, for landing 
at any port of the United States must submit information identical to 
that required by paragraphs (a)(1) and (2) of this section and provide 
those reports to the Regional Director or designee on the same 
frequency basis.
    (b) Vessel owners--(1) Fishing log reports. The owner of any vessel 
issued a Federal scup permit under Sec. 625.34 must maintain on board 
the vessel, and submit, an accurate daily fishing log report for all 
fishing trips regardless of species fished for or taken, on forms 
supplied by or approved by the Regional Director. If authorized in 
writing by the Regional Director, vessel owners may submit reports 
electronically. At least the following information, and any other 
information required by the Regional Director, must be provided: Vessel 
name, U.S. Coast Guard documentation number (or state registration 
number if undocumented);

[[Page 27859]]

permit number; date/time sailed; date/time landed; trip type; number of 
crew; number of anglers (if a charter or party trip); gear fished; 
quantity and size of gear; mesh/ring size; chart area fished; average 
depth; latitude/longitude (or loran station and bearings); total hauls 
per area fished; average tow time duration; pounds by species of all 
species landed or discarded; dealer permit number (if a commercial 
trip); dealer name; date sold; port and state landed; and vessel 
operator's name, signature, and operator permit number.
    (2) When to fill in the log. Fishing log reports must be filled in, 
except for information required but not yet ascertainable, before 
offloading has begun. All information in paragraph (b)(1) of this 
section must be filled in for each fishing trip before starting the 
next fishing trip.
    (3) Inspection. Upon the request of an authorized officer or an 
employee of NMFS designated by the Regional Director to make such 
inspections, at any time during or after a trip, owners and operators 
must make immediately available for inspection the fishing log reports 
currently in use or to be submitted.
    (4) Record retention. Copies of the fishing log reports must be 
retained and available for review for 1 year after the date of the last 
entry on the report.
    (5) Submitting reports. Fishing log reports must be received or 
postmarked, if mailed, within 15 days after the end of the reporting 
month. Each owner will be sent forms and instructions, including the 
address to which to submit reports, shortly after receipt of a Federal 
Fisheries Permit. If no fishing trip is made during a month, a report 
so stating must be submitted.


Sec. 625.38  Vessel identification.

    (a) Vessel name. Each fishing vessel owner subject to this part 
must affix permanently the vessel's name on the port and starboard 
sides of the bow and, if possible, on its stern if the vessel is over 
25 feet (7.6 m) in length.
    (b) Official number. Each fishing vessel owner subject to this 
section must display its official number on the port and starboard 
sides of the vessel's deckhouse or hull, and on an appropriate weather 
deck, so as to be visible from above by enforcement vessels and 
aircraft if the vessel is over 25 feet (7.6 m) in registered length. 
The official number is the U.S. Coast Guard documentation number, or 
the vessel's state registration number for vessel not required to be 
documented under title 46 of the United States Code.
    (c) Numerals. Except as provided in paragraph (e) of this section, 
the official number must be permanently affixed in block arabic 
numerals in contrasting color at least 18 inches (45.7 cm) in height 
for fishing vessels over 65 feet (19.8 m) in length, and at least 10 
inches (25.4 cm) in height for all other vessels over 25 feet (7.6 m) 
in length.
    (d) Duties of owner. Any vessel owner subject to this part will:
    (1) Keep the vessel's name and official number clearly legible and 
in good repair.
    (2) Ensure that no part of the vessel, its rigging, its fishing 
gear, or any other object obstructs the view of the official number 
from any enforcement vessel or aircraft.
    (e) Nonpermanent marking. Vessels carrying recreational fishing 
parties on a per capita basis or by charter must use markings that meet 
the above requirements, except for the requirement that they be affixed 
permanently to the vessel. The nonpermanent markings must be displayed 
in conformity with the above requirements when the vessel is fishing 
for scup.


Sec. 625.39  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 scup permit under Sec. 625.34, or issued 
an operator permit under Sec. 625.35, to do any of the following:
    (1) Land or possess at sea any scup, or parts thereof, that fail to 
meet the minimum fish size specified in Sec. 625.54.
    (2) Fail to affix and maintain markings as required by Sec. 625.38;
    (3) Possess scup in excess of the threshold amount specified in 
Sec. 625.53, unless the vessel meets the minimum mesh requirement 
specified in Sec. 625.53(a);
    (4) Fail to keep scup separate from other species if fishing with 
nets having mesh that does not meet the minimum mesh-size requirement 
specified in Sec. 625.53(a);
    (5) Land scup for sale in any state after the effective date 
published in the Federal Register notifying permit holders that 
commercial quota is no longer available;
    (6) Possess nets or netting that do not meet the minimum mesh 
requirement or that are modified, obstructed or constricted, if subject 
to the minimum mesh requirement specified in Sec. 625.53(a), unless the 
nets or netting are stowed in accordance with Sec. 625.53;
    (7) Fish with nets or netting that do not meet the minimum mesh 
requirement or that are modified, obstructed or constricted while in 
possession of scup in excess of the threshold amount specified in 
Sec. 625.53;
    (8) Sell or transfer to another person for a commercial purpose, 
other than transport on land, any scup, unless the transferee has a 
dealer permit issued under Sec. 625.36;
    (9) Carry passengers for hire, or carry more than three crew 
members for a charter boat or five crew members for a party boat, while 
fishing commercially pursuant to a moratorium permit issued pursuant to 
Sec. 625.34;
    (10) Refuse to embark a sea sampler if requested by the Regional 
Director;
    (11) Sell any scup that fail to meet the minimum fish size 
specified in Sec. 625.54(a);
    (12) Use a scup pot or trap that does not have the hinges and 
fasteners made of degradable materials as specified in Sec. 625.53;
    (13) Use a scup trap or pot that does not have a minimum escape 
vent of the size specified in Sec. 625.53;
    (14) Use roller rig trawl gear equipped with rollers greater than 
the size specified in Sec. 625.53; or
    (15) Possess scup in, or harvested from the EEZ in an area closed, 
or before or after a season established under Sec. 625.53.
    (b) It is unlawful for the owner or operator of a party or charter 
boat issued a permit (including a moratorium permit) pursuant to 
Sec. 625.34, when the boat is carrying passengers for hire or carrying 
more than three crew members if a charter boat or more than five 
members if a party boat, to:
    (1) Possess scup in excess of the possession limit established 
pursuant to Sec. 625.55;
    (2) Possess scup smaller than the minimum size limit for 
recreational fishermen established pursuant to Sec. 625.54(b);
    (3) Fish for scup other than during a season specified pursuant to 
Sec. 625.53;
    (4) Refuse to embark a sea sampler if requested by the Regional 
Director; or
    (5) Sell scup or transfer scup to another person for a commercial 
purpose.
    (c) It is unlawful for any person to do any of the following:
    (1) Possess scup in or harvested from the EEZ either in excess of 
the possession limit specified under Sec. 625.55 or before or after the 
time period specified under Sec. 625.53, unless the person is operating 
a vessel issued a moratorium permit under Sec. 625.34, and the 
moratorium permit is on board the vessel and has not been surrendered, 
revoked, or suspended;
    (2) Possess scup in or harvested from the EEZ in an area closed, or 
before or after a season established under Sec. 625.53;

[[Page 27860]]

    (3) Possess in or harvest from the EEZ scup that do not meet the 
minimum size specified in Sec. 625.54(b);
    (4) If subject to the permitting requirements in Secs. 625.34, 
625.35 or 625.36, to offload, cause to be offloaded, sell or buy any 
scup, whether on land or at sea, as an owner, operator, dealer, buyer 
or receiver in the scup fishery, without accurately preparing and 
submitting in a timely fashion the documents required by Sec. 625.37;
    (5) Purchase or otherwise receive, except for transport, scup from 
the owner or operator of a vessel issued a moratorium permit under 
Sec. 625.34 unless in possession of a valid permit issued under 
Sec. 625.36;
    (6) If subject to the permitting requirements of Sec. 625.36, to 
purchase or otherwise receive for commercial purposes scup caught by 
other than a vessel with a moratorium permit, unless the vessel has not 
been issued a permit under this part and is fishing exclusively within 
the waters under the jurisdiction of any state;
    (7) If subject to the permitting requirements of Sec. 625.36, to 
purchase or otherwise receive for a commercial purpose scup landed in 
any state after the effective date published in the Federal Register 
notifying permit holders that commercial quota is no longer available 
in that state;
    (8) Make any false statement, oral or written, to an authorized 
officer, concerning the catching, taking, harvesting, landing, 
purchase, sale, possession, or transfer of any scup;
    (9) Fail to report to the Regional Director within 15 days any 
change in the information contained in a permit application;
    (10) Assault, resist, oppose, impede, harass, intimidate, or 
interfere with or bar by command, impediment, threat, coercion or 
refusal of reasonable assistance of an observer or sea sampler 
conducting his or her duties aboard a vessel; or
    (11) Violate any other provision of this part, the Magnuson Act, or 
any regulation or permit issued under the Magnuson Act.
    (d) All scup possessed on board a party or charter boat issued a 
permit under Sec. 625.34(c) are deemed to have been harvested from the 
EEZ.
    (e) It is unlawful for any person to violate any terms of a letter 
authorizing experimental fishing pursuant to Sec. 625.57 or to fail to 
keep such letter on board the vessel during the time period of the 
experimental fishing.


Sec. 625.40   Facilitation of enforcement

    See Sec. 620.8 of this chapter.


Sec. 625.41   Penalties.

    See Sec. 620.9 of this chapter.

Subpart D--Management Measures, Scup

625.50  Catch quotas and other restrictions.
625.51  Closure.
625.52  Season and area restrictions.
625.53  Gear restrictions.
625.54  Minimum fish sizes.
625.55  Possession limit.
625.56  At-sea observer coverage.
625.57  Experimental fishery.
625.58  Protection of threatened and endangered sea turtles.

Subpart D--Management Measures, Scup


Sec. 625.50   Catch quotas and other restrictions.

    (a) Annual review. The Scup Monitoring Committee will review the 
following data on or before August 15 of each year to determine the 
allowable levels of fishing and other restrictions necessary to result 
in an exploitation rate of 47 percent in the second, third, and fourth 
years following Amendment 8 implementation, 33 percent in the fifth and 
sixth years following Amendment 8 implementation, and 19 percent in the 
seventh year following Amendment 8 implementation and thereafter.
    (1) As a basis for establishing these specifications and 
restrictions, the Monitoring Committee will review available data 
pertaining to the following:
    (i) Commercial and recreational catch data.
    (ii) Current estimates of fishing mortality.
    (iii) Stock status.
    (iv) Recent estimates of recruitment.
    (v) Virtual population analysis results.
    (vi) Levels of noncompliance by fishermen or individual states.
    (vii) Impact of size/mesh regulations.
    (viii) Sea sampling and winter trawl survey data, or, if sea 
sampling data are unavailable, length frequency information from the 
winter trawl survey and mesh selectivity analyses.
    (ix) Impact of gear other than otter trawls on the mortality of 
scup.
    (x) Any other relevant information.
    (b) Recommended measures. Based on this review, the Monitoring 
Committee will recommend to the Demersal Species Committee of the 
Council and the Commission the following measures it determines are 
necessary to assure that the exploitation rate specified in paragraph 
(a) of this section is not exceeded:
    (1) The coastwide commercial quota will be set from a range of 0 to 
the maximum allowed to achieve the exploitation rate specified in 
paragraph (a) of this section.
    (2) Commercial minimum fish size.
    (3) Minimum mesh size.
    (4) The recreational possession limit will be set from a range of 0 
to 50 scup to achieve the exploitation rate specified in paragraph (a) 
of this section.
    (5) The recreational minimum fish size will be set from a range of 
7 inches (17.8 cm) total length to 10 inches (25.4 cm) total length.
    (6) Recreational season.
    (7) Restrictions on gear other than otter trawls.
    (8) Season and area closures in the commercial fishery.
    (c) Annual fishing measures. The Demersal Species Committee shall 
review the recommendations of the Scup Monitoring Committee. Based on 
these recommendations and any public comment, the Demersal Species 
Committee shall make its recommendations to the Council; the Council 
shall review these recommendations. Based on these recommendations, and 
any public comment, the Council shall make recommendations to the 
Regional Director with respect to the measures necessary to assure that 
the exploitation rates specified in paragraph (a) of this section are 
not exceeded. Included in the recommendation will be supporting 
documents, as appropriate, concerning the environmental and economic 
impacts of the proposed action. The Regional Director will review these 
recommendations and any recommendations of the Commission. After such 
review, the Regional Director will publish in the Federal Register a 
proposed rule on or before October 15 to implement a coastwide 
commercial quota and recreational harvest limit and additional 
management measures for the commercial fishery, and will publish in the 
Federal Register a proposed rule on or before February 15 to implement 
additional management measures for the recreational fishery, if he/she 
determines that these measures are necessary to assure that the 
exploitation rates specified in paragraph (a) of this section are not 
exceeded. After considering public comment on each proposed rule, the 
Regional Director will publish a final rule in the Federal Register to 
implement the annual measures.
    (d) Additional quota measures. The commercial quota will be 
implemented as a coastwide quota. The Council and Commission may revise 
the system to distribute and manage the annual commercial quota 
allocations in accordance with the procedures set forth in this 
section. Vessel trip limits,

[[Page 27861]]

as well as coastwide, regional and state-by-state quotas may be 
considered in combination with different fractions of the fishing year. 
Any modification to the coastwide quota system shall be published as a 
proposed rule with a 45-day public comment period in the Federal 
Register. After considering public comment on the proposed rule, a 
final rule shall be published in the Federal Register to implement the 
modification.


Sec. 625.51  Closure.

    (a) EEZ Closure. The Regional Director will monitor the coastwide 
commercial quota based on dealer reports, state data, and other 
available information and shall determine the date when the commercial 
quota is harvested. The Regional Director shall close the EEZ to 
fishing for scup by commercial vessels for the remainder of the 
calendar year by publishing an announcement in the Federal Register 
advising that, effective upon a specific date, the commercial quota has 
been harvested, and notifying vessel and dealer permit holders that no 
commercial quota is available for landing scup.


Sec. 625.52  Season and area restrictions.

    If the Council determines through its annual review process that 
seasonal restrictions or area closures are necessary for the commercial 
or recreational sectors to achieve the exploitation rate specified or 
to attain other FMP objectives, such measures will be enacted through 
the procedure specified in Sec. 625.50.


Sec. 625.53  Gear restrictions.

    (a) Trawl vessel gear restrictions. (1) Otter trawlers whose owners 
are issued a scup moratorium permit under Sec. 625.34 and that possess 
4,000 or more lb (1,814 or more kg) of scup, must fish with nets that 
have a minimum mesh size of 4 inches (10.2 cm) diamond mesh applied 
throughout the codend for at least 75 continuous meshes forward of the 
terminus of the net or, for codends with less than 75 meshes, the 
minimum-mesh-size codend must be a minimum of one-third of the net, 
measured from the terminus of the codend to the head rope, excluding 
any turtle excluder device extension.
    (2) Owners or operators of otter trawlers issued a scup moratorium 
permit under Sec. 625.34 and fishing with, or possessing on board, nets 
or pieces of net that do not meet the minimum mesh requirements and 
that are not stowed in accordance with this section, may not retain 
4,000 or more lb (1,814 or more kg) of scup. Scup on board these 
vessels shall be stored separately and kept readily available for 
inspection.
    (3) Mesh-size measurement. Mesh sizes are measured by a wedge-
shaped gauge having a taper of 2 cm to 8 cm and a thickness of 2.3 
millimeters inserted into the meshes under a pressure or pull of 5 
kilograms. The mesh size will be the average of the measurement of any 
series of 20 consecutive meshes for nets having 75 or more meshes, and 
10 consecutive meshes for nets having fewer than 75 meshes. The mesh in 
the regulated portion of the net will be measured at least five meshes 
away from the lacings, running parallel to the long axis of the net.
    (4) Net modification. The owner or operator of a fishing vessel 
subject to this part shall not use any device, gear, or material, 
including, but not limited to, nets, net strengtheners, ropes, lines, 
or chafing gear, on the top of the regulated portion of a trawl net. 
However, one splitting strap and one bull rope (if present), consisting 
of line or rope no more than 3 inches (7.2 cm) in diameter, may be used 
if such splitting strap and/or bull rope does not constrict in any 
manner the top of the regulated portion of the net, and one rope no 
greater that 0.75 inches (1.9 cm) in diameter extending the length of 
the net from the belly to the terminus of the codend along each of the 
following: The top, bottom, and each side of the net. ``Top of the 
regulated portion of the net'' means the 50 percent of the entire 
regulated portion of the net that (in a hypothetical situation) will 
not be in contact with the ocean bottom during a tow if the regulated 
portion of the net were laid flat on the ocean floor. For the purpose 
of this paragraph, head ropes shall not be considered part of the top 
of the regulated portion of a trawl net. A vessel shall not use any 
means or mesh configuration on the top of the regulated portion of the 
net, as defined in Sec. 625.53(e), if it obstructs the meshes of the 
net or otherwise causes the size of the meshes of the net while in use 
to diminish to a size smaller than the minimum specified in 
Sec. 625.53(a).
    (5) Mesh obstruction or constriction. (i) The owner or operator of 
a fishing vessel may not use any mesh configuration, mesh construction, 
or other means on or in the top of the net, as defined in paragraph (3) 
of this section, if it obstructs the meshes of the net in any manner.
    (ii) No owner or operator of a fishing vessel may use a net capable 
of catching scup in which the bars entering or exiting the knots twist 
around each other.
    (6) Stowage of nets. The owner or operator of an otter trawl vessel 
retaining 4,000 or more lb (1,814 or more kg) of scup and subject to 
the minimum mesh requirement may not have available for immediate use 
any net, or any piece of net, not meeting the minimum mesh size 
requirement, or mesh that is rigged in a manner that is inconsistent 
with the minimum mesh size. A net that conforms to one of the following 
specifications and that can be shown not to have been in recent use is 
considered to be not ``available for immediate use:''
    (i) A net stowed below deck, provided:
    (A) It is located below the main working deck from which the net is 
deployed and retrieved.
    (B) The towing wires, including the ``leg'' wires, are detached 
from the net.
    (C) It is fan-folded (flaked) and bound around its circumference.
    (ii) A net stowed and lashed down on deck, provided:
    (A) It is fan-folded (flaked) and bound around its circumference.
    (B) It is securely fastened to the deck or rail of the vessel.
    (C) The towing wires, including the leg wires, are detached from 
the net.
    (iii) A net that is on a reel and is covered and secured, provided:
    (A) The entire surface of the net is covered with canvas or other 
similar material that is securely bound.
    (B) The towing wires, including the leg wires, are detached from 
the net.
    (C) The codend is removed from the net and stored below deck.
    (iv) Nets that are secured in a manner approved by the Regional 
Director, provided that the Regional Director has reviewed the 
alternative manner of securing nets and has published that alternative 
in the Federal Register.
    (7) The minimum net mesh set forth in paragraph (a)(1) of this 
section may be changed following the procedures in Sec. 625.50.
    (b) Scup pots or traps restrictions--(1) Degradable hinges. The 
owner or operator of fishing vessels issued a scup moratorium permit 
under Sec. 625.34 that are fishing with scup pots or traps, must fish 
with traps or pots that have degradable hinges and fasteners made of 
one of the following degradable materials:
    (i) Untreated hemp, jute, or cotton string of \3/16\ inches (4.8 
mm) diameter or smaller;
    (ii) Magnesium alloy, timed float releases (pop-up devices) or 
similar magnesium alloy fasteners; or
    (iii) Ungalvanized or uncoated iron wire of 0.094 inches (2.4 mm) 
diameter or smaller.

[[Page 27862]]

    (2) Escape Vents. (i) The owners or operators of fishing vessels 
issued a scup moratorium permit under Sec. 625.34 that are fishing with 
scup pots or traps, must fish with traps or pots that have a circular 
escape vent with a minimum of 3.1 inches (7.9 cm) in diameter, or a 
square escape vent with a minimum of 2.25 inches (5.7 cm) for each 
side, or an equivalent rectangular escape vent.
    (ii) The minimum escape vent size set forth in paragraph (b)(2) of 
this section may be revised following the procedures in Sec. 625.50.


Sec. 625.54  Minimum fish sizes.

    (a) The minimum size for scup is 9 inches (22.9 cm) TL for all 
vessels issued a moratorium permit under Sec. 625.34; if such a vessel 
is also issued a charter and party boat permit and is carrying 
passengers for hire, or carrying more than three crew members if a 
charter boat, or more than five crew members if a party boat, then the 
minimum size specified in paragraph (b) of this section applies.
    (b) The minimum size for scup is 7 inches (17.8 cm) TL for all 
vessels that do not qualify for a moratorium permit, or for party and 
charter vessels that are issued a moratorium permit but are fishing 
with passengers for hire, or carrying more than three crew members if a 
charter boat, or more than five crew members if a party boat.
    (c) The minimum size applies to whole fish or any part of a fish 
found in possession, e.g., fillets. These minimum sizes may be adjusted 
pursuant to the procedures in Sec. 625.50.


Sec. 625.55  Possession limit.

    (a) Pursuant to the procedures in Sec. 625.50, the Regional 
Director may limit the number of scup that may be possessed in or 
harvested from the EEZ by persons aboard vessels that have not been 
issued a valid moratorium permit.
    (b) If whole scup are processed into fillets, an authorized officer 
will convert the number of fillets to whole scup at the place of 
landing by dividing fillet number by 2. If scup are filleted into a 
single (butterfly) fillet, such fillet shall be deemed to be from one 
whole scup.
    (c) Scup harvested by vessels subject to the possession limit with 
more than one person aboard may be pooled in one or more containers. 
Compliance with the daily possession limit will be determined by 
dividing the number of scup aboard by the number of persons on board 
other than the captain and crew. 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.


Sec. 625.56  At-sea observer coverage.

    (a) The Regional Director may require observers for any vessel 
holding a permit issued under Sec. 625.34.
    (b) Owners of vessels selected for observer coverage must notify 
the appropriate Regional Director or Center Director, as specified by 
the Regional Director, before commencing any fishing trip that may 
result in the harvest of scup. Notification procedures will be 
specified in selection letters to vessel owners.
    (c) An owner or operator of a vessel on which a NMFS-approved 
observer is embarked must:
    (1) Provide accommodations and food that are equivalent to those 
provided to the crew.
    (2) Allow the observer access to and use of the vessel's 
communications equipment and personnel upon request for the 
transmission and receipt of messages related to the observer's duties.
    (3) Allow the observer access to and use of the vessel's navigation 
equipment and personnel upon request to determine the vessel's 
position.
    (4) Allow the observer free and unobstructed access to the vessel's 
bridge, working decks, holding bins, weight scales, holds, and any 
other space used to hold, process, weigh, or store fish.
    (5) Allow the observer to inspect and copy any records associated 
with the catch and distribution of fish for that trip.


Sec. 625.57  Experimental fishery.

    (a) The Regional Director, in consultation with the Executive 
Director of the Council, may exempt any person or vessel from the 
requirements of this part for the conduct of experimental fishing 
beneficial to the management of the scup resource or fishery.
    (b) The Regional Director may not grant such exemption unless he/
she determines that the purpose, design, and administration of the 
exemption is consistent with the objectives of the FMP, the provisions 
of the Magnuson Act, and other applicable law, and that granting the 
exemption will not:
    (1) Have a detrimental effect on the scup resource and fishery;
    (2) Cause any quota to be exceeded; or
    (3) Create significant enforcement problems.
    (c) Each vessel participating in any exempted experimental fishing 
activity is subject to all provisions of this FMP except those 
necessarily relating to the purpose and nature of the exemption. The 
exemption will be specified in a letter issued by the Regional Director 
to each vessel participating in the exempted activity. This letter must 
be carried on board the vessel seeking the benefit of such exemption.


Sec. 625.58  Protection of threatened and endangered sea turtles.

    This section supplements existing regulations issued to regulate 
incidental take of sea turtles under authority of the Endangered 
Species Act under 50 CFR parts 217 and 227. In addition to the measures 
required under those parts NMFS will investigate the extent of take in 
flynet gear and if deemed appropriate, may develop and certify a Turtle 
Excluder Device (TED) for that gear.

[FR Doc. 96-13701 Filed 5-29-96; 1:02 pm]
BILLING CODE 3510-22-W