[Federal Register Volume 61, Number 222 (Friday, November 15, 1996)]
[Rules and Regulations]
[Pages 58461-58469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29165]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

[Docket No. 960805216-6307-03; I.D. 071596E]
RIN 0648-AH06


Fisheries of the Northeastern United States; Amendment 9 to the 
Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this rule to implement the approved provisions of 
Amendment 9 to the Fishery Management Plan (FMP) for the Summer 
Flounder, Scup, and Black Sea Bass Fisheries. This rule includes the 
initially disapproved quota measure, that has been revised and 
resubmitted by the Mid-Atlantic Fishery Management Council (Council). 
This rule implements management measures for the black sea bass fishery 
in order to reduce fishing mortality and allow the stock to rebuild.

EFFECTIVE DATE: December 16, 1996.

ADDRESSES: Copies of Amendment 9, the resubmitted portion of Amendment 
9, the final environmental impact statement (FEIS), 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 S. New Street, 
Dover, DE 19904-6790.
    Comments regarding burden-hour estimates for collection-of-
information requirements contained in this final rule should be sent to 
Dr. Andrew A. Rosenberg, Regional Administrator, 1 Blackburn Drive, 
Gloucester, MA 01930, and the Office of Information and Regulatory 
Affairs, Office of Management and Budget (OMB), Washington, D.C. 20502 
(Attention: NOAA Desk Officer).

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

SUPPLEMENTARY INFORMATION:

Background

    This final rule implements approved measures contained in Amendment 
9 to the FMP, which was prepared by the Council in consultation with 
the Atlantic States Marine Fisheries Commission (Commission) and the 
New England and South Atlantic Fishery Management Councils. Amendment 9 
revises the summer flounder (Paralichthys dentatus) and scup 
(Stenotomus chrysops) FMP to include management measures for the black 
sea bass (Centropristis striata) fishery pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act, as amended (Magnuson-
Stevens Act). The management unit for this fishery is black sea bass in 
U.S. waters of the western Atlantic Ocean from 35 deg.15.3' N. lat., 
the latitude of Cape Hatteras Light, NC, northward to the U.S.-Canada 
border. Background concerning the development of Amendment 9 was 
provided in the notice of proposed rulemaking (August 21, 1996, 61 FR 
43217), and is not repeated here. The public comment period on the 
proposed rule for all management measures except the commercial quota 
provisions ended on October 7, 1996.
    On July 19, 1996, NMFS, on behalf of the Secretary of Commerce 
(Secretary), after a preliminary evaluation as authorized by section 
304(a)(1)(A)(ii) of the Magnuson-Stevens Act, disapproved the provision 
that would have implemented a state by state commercial quota for black 
sea bass in 1998. The measure was found to be incompatible with the 
Magnuson-Stevens Act and other applicable law.
    The Council was informed that final approval of Amendment 9 was 
contingent upon the timely resubmission of a commercial quota measure 
that remedied the deficiencies of the disapproved measure. If the 
revised/resubmitted commercial quota provision could not be approved 
prior to Day 95 of the review period for the remaining measures of 
Amendment 9, Amendment 9 was at risk of disapproval due to 
inconsistency with national standard 1 of the Magnuson-Stevens Act. The 
Council, pursuant to section 304(b)(3)(A) of the Magnuson-Stevens Act, 
revised the measure and resubmitted a coastwide quarterly quota with 
trip limits that is fully described in the notice of proposed 
rulemaking published on September 6, 1996 (61 FR

[[Page 58462]]

47106). That notice provided a public comment period that concluded on 
September 26, 1996. No comments were received on the proposed revision. 
The revised/resubmitted quota measure was approved by NMFS on behalf of 
the Secretary on October 11, 1996. The remaining measures contained in 
Amendment 9 were approved by NMFS on behalf of the Secretary on October 
17, 1996. The regulations implementing Amendment 9, including the quota 
measure contained in the resubmission, are being published together in 
this final rule.
    Successful implementation of the commercial quota measure in 1998 
will require the involved states to assist NMFS in monitoring 
commercial landings and to close state waters to fishing when quarterly 
quotas are attained. Since the FMP is a joint fishery management plan, 
the Commission will also have to take complementary action. The fact 
that the management unit bifurcates the State of North Carolina will 
mean that the State must establish monitoring and State waters closures 
to coincide with the boundary of the management unit. If the states, 
particularly North Carolina, are unable to implement necessary measures 
by 1998, a regulatory amendment will be necessary to modify the quota 
monitoring and implementation process to ensure effective 
implementation of the measure.

Amendment 9 Measures

    This final rule implements a moratorium on new entrants into the 
commercial black sea bass fishery, imposes restrictions on the size of 
vessels allowed as a replacement for a moratorium eligible vessel, 
requires charter/party vessel, dealer, and operator permits, and 
establishes reporting and recordkeeping requirements. This rule also 
implements the following measures, which may be adjusted annually 
through the review process specified in Amendment 9: Minimum fish 
sizes, minimum mesh size for otter trawl vessels possessing a catch in 
excess of a specified threshold level, a maximum roller size, and pot 
and trap gear requirements. Modifications to recreational measures 
including season, possession limit, and minimum size may also be 
implemented if the Council deems them necessary in its annual review 
process. A coastwide harvest limit will be specified annually, 
beginning in 1998, at a level that will reduce the exploitation rate to 
the level specified in the rebuilding schedule. This coastwide harvest 
limit will be subdivided into a commercial quota and a recreational 
harvest limit.
    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. The Council may establish 
special management zones (SMZs) at the request of an individual issued 
a permit by the U.S. Army Corps of Engineers for an artificial reef. 
Such SMZs would be implemented by regulatory amendment.

Resubmitted Measure

    This final rule will also implement, beginning in 1998, a 
commercial quarterly quota with trip limits that will be allocated to 
the commercial black sea bass fishery for the coastal states from Maine 
through North Carolina. The quarterly allocations and the associated 
percentages of the total quota are: January-March (38.64 percent), 
April-June (29.26 percent), July-September (12.33 percent), and 
October-December (19.77 percent). Any black sea bass landed for sale by 
a vessel possessing a black sea bass moratorium permit will count 
towards the quota, regardless of where the fish were harvested. Any 
black sea bass harvested north of Cape Hatteras and landed for sale by 
a vessel without a moratorium permit and fishing exclusively in state 
waters will be counted towards the quota by the state in which it is 
landed pursuant to the Fishery Management Plan for the Black Sea Bass 
Fishery adopted by the Commission. A series of prohibitions and 
management measures have been proposed to address the original concerns 
with regard to monitoring and enforcement of the commercial quota in 
the State of North Carolina.

Comments and Responses

    One written comment was received from a fishery participant 
concerning Amendment 9. No comments were received concerning the 
resubmitted measure.
    Comment: The commenter expressed concern for the resource and 
recommended increasing the minimum fish size to 12 inches (30.5 cm).
    Response: The minimum fish size implemented under this rule is 9 
inches (22.9 cm) total length (TL) and can be adjusted annually through 
the Monitoring Committee review process. Fifty percent of the black sea 
bass are sexually mature at 7.7 inches (19.5 cm) TL, so the minimum 
size should allow for increases in the spawning stock biomass while 
allowing more fish to spawn. The Council and Commission considered 
alternative size limits, but felt that larger limits could impose 
significant economic burdens on the industry. The plan allows them, 
however, to reexamine the minimum size on an annual basis if 
anticipated stock benefits are not realized.

Changes From the Proposed Rules

    This final rule incorporates changes made to the proposed rules for 
both Amendment 9 and the resubmitted quota measure. Unless otherwise 
noted, the changes specified below reference the proposed rule for 
Amendment 9.
    In Sec. 648.4, paragraph (a)(6) is no longer reserved for future 
use due to the approval of Amendment 8 to the FMP which regulates the 
scup fishery.
    Section 648.4(a)(7)(i)(C) in the resubmission proposed rule was 
incorporated into Sec. 648.4(b) for ease of reference, and the phrases 
``upon the receipt of'' and ``written'' were added to clarify that the 
request for reissuance of a black sea bass moratorium permit must be 
received in writing from the vessel's owner.
    In Sec. 648.4(a)(7)(i)(A) (1) and (2), the phrase ``in the 
management unit'' was added to clarify that in order to qualify for a 
commercial black sea bass moratorium permit, documented landings must 
be of black sea bass from 35 deg.15.3' N. lat., the latitude of Cape 
Hatteras Light, NC, northward to the U.S.-Canada border.
    In Sec. 648.12, subpart H (scup) is added to the list of species 
that may be exempted from the requirements of that part for the purpose 
of conducting experimental fishing beneficial to the management of the 
scup resource, as the final rule published on August 23, 1996 (61 FR 
43420) made that subpart effective.
    In Sec. 648.14, paragraphs (a)(80) through (a)(82) have been 
renumbered as (a)(90) through (a)(92), as the approval of the 
regulations implementing Amendment 8 to the FMP that regulates the scup 
fishery included prohibitions in paragraphs (80) through (88), 
inclusively. Also, paragraphs (a)(93) through (a)(95) are added to 
clarify restrictions.
    Section 648.140(b)(2) in the resubmission proposed rule was 
modified by adding the phrase ``for all moratorium vessels'' to clarify 
that a trip limit established by the Monitoring Committee will apply to 
all commercial vessels that are in possession of a Federal moratorium 
permit, regardless of gear type or vessel size.
    Section 648.140(d)(2) in the resubmission proposed rule has been 
revised to clarify that a state will be required to close their ports 
to landings of black sea bass in the event the quota is attained, 
pursuant to the fishery

[[Page 58463]]

management plan adopted by the Commission.
    Under NOAA Administrative Order 205-11, 7.01, dated December 17, 
1990, the Under Secretary for Oceans and Atmosphere has delegated to 
the Assistant Administrator for Fisheries, NOAA, the authority to sign 
material for publication in the Federal Register.

Classification

    The Regional Administrator, Northeast Region, NMFS, determined that 
Amendment 9 is necessary for the conservation and management of the 
black sea bass fishery and that it is consistent with the Magnuson-
Stevens Act and other applicable law.
    The Council prepared an FEIS for Amendment 9; a notice of 
availability was published by the Environmental Protection Agency on 
August 16, 1996 (61 FR 42608). The Assistant Administrator for 
Fisheries, NOAA (AA) determined, upon review of the FEIS and public 
comments, that the rule is environmentally preferable to the status 
quo. This rule would reduce exploitation, increase long-term yields, 
and, thus, reduce the risk of stock collapse in the black sea bass 
fishery.
    This rule has been determined to not be significant for purposes of 
E.O. 12866.
    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 (PRA) unless that collection of information 
displays a currently valid OMB control number.
    This rule contains new collection-of-information requirements 
subject to the PRA. These collection-of-information requirements have 
been approved by OMB, and the OMB control numbers and public reporting 
burden are listed as follows:
    1. Dealer employment data (6 minutes per response), under OMB # 
0648-0018.
    2. Operator permits (1 hour per response), vessel moratorium 
permits (30 minutes per response), moratorium permit appeals (30 
minutes per response), party and charter boat permits (30 minutes per 
response), dealer/processor permits (5 minutes per response), and 
experimental fishing exemptions (2 hours per response) under OMB # 
0648-0202.
    3. Vessel/party charter boat logbooks (5 minutes per response) 
under OMB # 0648-0212.
    4. Dealer reporting responses (2 minutes per response) under OMB # 
0648-0229.
    5. Gear marking (1 minute per trap or pot) under OMB # 0648-0305.
    6. Vessel marking (45 minutes per vessel) under OMB # 0648-0306.
    The estimated response time includes the time needed 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).
    A reinitiation of a section 7 consultation under the Endangered 
Species Act was completed on February 29, 1996, on the summer flounder, 
scup and black sea bass fisheries. The opinion concludes that the 
effects of the three fisheries, along with associated NMFS management 
actions, may adversely affect listed or proposed species, but are not 
likely to jeopardize their continued existence and will not result in 
the destruction or adverse modification of designated critical habitat.
    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 the management measures 
contained in Amendment 9 would not have a significant economic impact 
on a substantial number of small entities. The Assistant General 
Counsel for Legislation and Regulation of the Department of Commerce 
further certified to the Chief Counsel for Advocacy of the Small 
Business Administration, that the revised/resubmitted commercial quota 
measure would not have a significant economic impact on a substantial 
number of small entities during the 1997 fishing year. The reasons for 
that determination were discussed in the resubmission proposed rule 
published in the Federal Register on September 6, 1996 (61 FR 47106). 
As a result, Regulatory Flexibility Analyses were not prepared for 
either action.

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: November 7, 1996.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 15 CFR chapter IX and 50 
CFR chapter VI are amended as follows:

15 CFR Chapter IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:

    Authority: 44 U.S.C. 3501 et seq.

    2. In Sec. 902.1, in paragraph (b), the table is amended by adding, 
in numerical order, the following entries to read as follows:


Sec. 902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

------------------------------------------------------------------------
    CFR part or section where the                                       
 information collection requirement     Current OMB control number (all 
             is located                    numbers begin with 0648-)    
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
50 CFR                                                                  
                                                                        
                  *        *        *        *        *                 
648.5...............................  -0202                             
648.7...............................  -0018, -0212, and                 
                                      -0229                             
648.8...............................  -0306                             
648.144.............................  -0305                             
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------

50 CFR Chapter VI

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    4. In Sec. 648.1, paragraph (a) is revised to read as follows:


Sec. 648.1  Purpose and scope.

    (a) This part implements the fishery management plans (FMP) for the 
Atlantic mackerel, squid, and butterfish fisheries (Atlantic Mackerel, 
Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon FMP); the 
Atlantic sea scallop fishery (Atlantic Sea Scallop FMP (Scallop FMP)); 
the Atlantic surf clam and ocean quahog fisheries (Atlantic Surf Clam 
and Ocean Quahog FMP); the Northeast multispecies fishery (NE 
Multispecies FMP); and the summer flounder, scup and the black sea bass 
fisheries (Summer Flounder,

[[Page 58464]]

Scup and Black Sea Bass FMP). These FMPs and the regulations in this 
part govern the conservation and management of fisheries of the 
northeastern United States.
* * * * *
    5. In Sec. 648.2, definitions for ``Black Sea Bass Monitoring 
Committee,'' ``Black sea bass pot or black sea bass trap,'' are added, 
in alphabetical order, and the definition for ``Council'' is revised to 
read as follows:


Sec. 648.2  Definitions.

* * * * *
    Black Sea Bass 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 his designee chairs 
the Committee.
    Black sea bass pot or black sea bass trap means any such gear used 
in catching and retaining black sea bass.
* * * * *
    Council means the New England Fishery Management Council (NEFMC) 
for the Atlantic sea scallop and the NE multispecies fisheries, or the 
Mid-Atlantic Fishery Management Council (MAFMC) for the Atlantic 
mackerel, squid, and butterfish; the Atlantic surf clam and ocean 
quahog; and the summer flounder, scup and black sea bass fisheries.
* * * * *
    6. In Sec. 648.4, paragraph (a)(7) is added, and paragraph (b) is 
revised to read as follows:


Sec. 648.4  Vessel permits.

    (a) * * *
    (7) Black sea bass vessels. Beginning June 1, 1997, any vessel of 
the United States that fishes for or retains black sea bass in or from 
the EEZ north of 35 deg.15.3' N. lat., the latitude of Cape Hatteras 
Light, NC, must have been issued and carry on board a valid black sea 
bass moratorium permit, except for vessels other than party or charter 
vessels that observe the possession limit established pursuant to 
Sec. 648.145.
    (i) Moratorium permits--(A) Eligibility. A vessel is eligible to 
receive a permit to fish for and retain black sea bass in excess of the 
possession limit established pursuant to Sec. 648.145 in the EEZ north 
of 35 deg.15.3' N. lat., the latitude of Cape Hatteras Light, NC, if it 
meets any of the following criteria:
    (1) The vessel landed and sold black sea bass in the management 
unit between January 26, 1988, and January 26, 1993; or
    (2) The vessel was under construction for, or was being rerigged 
for, use in the directed fishery for black sea bass on January 26, 
1993, provided the vessel landed black sea bass in the management unit 
for sale prior to January 26, 1994.
    (3) The vessel is replacing a vessel of substantially similar 
harvesting capacity that qualifies under the criteria in paragraphs 
(a)(7)(i)(A) (1) or (2) of this section, and both the entering and 
replaced vessels are owned by the same person. Vessel permits issued to 
vessels that leave the fishery may not be combined to create larger 
replacement vessels.
    (B) Application/renewal restrictions. No one may apply for an 
initial black sea bass moratorium permit after:
    (1) December 15, 1997; or
    (2) The owner retires the vessel from the fishery.
    (C) Qualification restriction. Unless the Regional Director 
determines to the contrary, no more than one vessel may qualify at any 
one time for a black sea bass moratorium permit based on that or 
another vessel's fishing and permit history. If more than one vessel 
owner claims eligibility for a black sea bass moratorium permit based 
on one vessel's fishing and permit history, the Regional Director will 
determine who is entitled to qualify for the permit according to 
paragraph (a)(7)(i)(D) of this section.
    (D) 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. If the fishing and permit history of the vessel is transferred, 
the transferee/buyer must comply with the requirements of paragraph (h) 
of this section for the continuation of a moratorium permit for his or 
her benefit.
    (E) Replacement vessels. To be eligible for a moratorium permit 
under this section, the replacement vessel must be of substantially 
similar harvesting capacity as the vessel that initially qualified for 
the moratorium permit, and both vessels must be owned by the same 
person. Vessel permits issued to vessels that leave the fishery may not 
be combined to create larger replacement vessels.
    (F) Appeal of denial of permit. (1) 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 (a)(7)(i)(A) (1) 
or (2) 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.
    (2) The appeal may be presented, at the option of the applicant, at 
a hearing before an officer appointed by the Regional Director.
    (3) The hearing officer shall make a recommendation to the Regional 
Director.
    (4 ) The decision on the appeal by the Regional Director is the 
final decision of the Department of Commerce.
    (ii) Party and charter boat permit. The owner of any party or 
charter boat must obtain a permit to fish for or retain black sea bass 
in or from U.S. waters of the western Atlantic Ocean from 35 deg.15.3' 
N. lat., the latitude of Cape Hatteras Light, NC, northward to the 
U.S.-Canada border, while carrying passengers for hire.
    (b) Permit conditions. Vessel owners who apply for a fishing vessel 
permit under this section must agree as a condition of the permit that 
the vessel and the vessel's fishing activity, 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, unless exempted from such requirements under this part. All such 
fishing activities, catch, and gear will remain subject to all 
applicable state requirements. Except as otherwise provided in this 
part, if a requirement of this part and a management measure required 
by a state or local law differ, any vessel owner permitted to fish in 
the EEZ for any species managed under this part must comply with the 
more restrictive requirement. Owners and operators of vessels fishing 
under the terms of a summer flounder moratorium or black sea bass 
moratorium permit must also agree not to land summer flounder or black 
sea bass, respectively, in any state after the Regional Director has 
published a notification in the Federal Register stating that the 
commercial quota for that state or period has been harvested, and that 
no commercial quota is available for the respective species. A state 
not receiving an allocation of summer flounder or black sea bass is 
deemed to have no commercial quota available. Owners and operators of 
vessels fishing under the terms of a scup moratorium permit

[[Page 58465]]

must also agree not to land scup after the Regional Director has 
published a notification in the Federal Register stating that the 
commercial quota has been harvested. Owners or operators fishing for 
surf clams and ocean quahogs within waters under the jurisdiction of 
any state that requires cage tags are not subject to any conflicting 
Federal minimum size or tagging requirements. If a surf clam and ocean 
quahog requirement of this part differs from a surf clam and ocean 
quahog management measure required by a state that does not require 
cage tagging, any vessel owners or operator permitted to fish in the 
EEZ for surf clams and ocean quahogs must comply with the more 
restrictive requirement while fishing in state waters. However, 
surrender of a surf clam and ocean quahog vessel permit by the owner by 
certified mail addressed to the Regional Director allows an individual 
to comply with the less restrictive state minimum size requirement, as 
long as fishing is conducted exclusively within state waters. If the 
commercial black sea bass quota for a period is harvested, and the 
coast is closed to the possession of black sea bass north of 
35 deg.15.3' N. lat., any vessel owners that hold valid commercial 
permits for both the black sea bass and the NMFS, Southeast Region 
Snapper/Grouper fisheries, may surrender their moratorium Black Sea 
Bass permit by certified mail addressed to the Regional Director and 
fish pursuant to their Snapper/Grouper permit, as long as fishing is 
conducted exclusively in waters, and landings are made, south of 
35 deg.15.3' N. lat. A moratorium permit for the black sea bass fishery 
that is voluntarily relinquished or surrendered will be reissued upon 
the receipt of the vessel owner's written request after a minimum 
period of 6 months from the date of cancellation.
* * * * *
    7. In Sec. 648.5, paragraph (a) is revised to read as follows:


Sec. 648.5  Operator permits.

    (a) General. Any operator of a vessel fishing for or possessing sea 
scallops in excess of 40 lb (18.1 kg), NE multispecies, and, as of 
January 1, 1997, mackerel, squid, or butterfish, or scup, and, as of 
June 1, 1997, black sea bass, harvested in or from the EEZ, or issued a 
permit for these species under this part, must have been issued under 
this section, and carry on board, a valid operator's permit. An 
operator permit issued pursuant to part 649 of this chapter satisfies 
the permitting requirement of this section. This requirement does not 
apply to operators of recreational vessels.
* * * * *
    8. In Sec. 648.6, paragraph (a) is revised to read as follows:


Sec. 648.6  Dealer/processor permits.

    (a) General. All NE multispecies, sea scallop, summer flounder, 
surf clam and ocean quahog dealers, and surf clam and ocean quahog 
processors must have been issued under this section, and have in their 
possession, a valid permit for these species. As of January 1, 1997, 
all mackerel, squid, and butterfish dealers and all scup dealers, and, 
as of June 1, 1997, all black sea bass dealers must have been issued 
under this section, and have in their possession, a valid permit for 
these species.
* * * * *
    9. In Sec. 648.7, the first sentence in paragraph (a)(1)(i), 
paragraph (a)(2)(i), the heading and first sentence of paragraph 
(b)(1)(i), the first sentence of paragraph (b)(1)(iii) and paragraph 
(f)(3) are revised to read as follows:


Sec. 648.7  Recordkeeping and reporting requirements.

    (a) * * *
    (1) * * *
    (i) Summer flounder, scallop, NE multispecies, and, as of January 
1, 1997, mackerel, squid or butterfish, and scup dealers, and, as of 
June 1, 1997, black sea bass dealers, must provide: 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. * * *
* * * * *
    (2) * * *
    (i) Summer flounder, scallop, NE multispecies, and, as of January 
1, 1997, mackerel, squid, or butterfish and scup, and, as of June 1, 
1997, black sea bass dealers must complete the ``Employment Data'' 
section of the Annual Processed Products Reports; completion of the 
other sections of that form is voluntary. Reports must be submitted to 
the address supplied by the Regional Director.
* * * * *
    (b) * * *
    (1) * * *
    (i) Owners of vessels issued a moratorium permit for summer 
flounder, mackerel, squid, or butterfish, scup or black sea bass, or a 
permit for sea scallop or multispecies. The owner or operator of any 
vessel issued a moratorium permit for summer flounder, or, as of 
January 1, 1997, mackerel, squid, or butterfish, or scup, or as of June 
1, 1997, black sea bass, or a permit for sea scallops, or NE 
multispecies, 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. * * *
* * * * *
    (iii) Owners of party and charter boats. The owner of any party or 
charter boat issued a summer flounder or scup permit other than a 
moratorium permit and carrying passengers for hire shall maintain on 
board the vessel, and submit, an accurate daily fishing log report for 
each charter or party fishing trip that lands summer flounder or scup, 
unless such a vessel is also issued a moratorium permit for summer 
flounder, a permit for sea scallop, or NE multispecies, or, as of 
January 1, 1997, a permit for mackerel, squid or butterfish, or a 
moratorium permit for scup, or, as of June 1, 1997, a permit for black 
sea bass, in which case a fishing log report is required for each trip 
regardless of species retained. * * *
* * * * *
    (f) * * *
    (3) At-sea purchasers, receivers, or processors. All persons 
purchasing, receiving, or processing any summer flounder, or, as of 
January 1, 1997, mackerel, squid, or butterfish, or scup, or, as of 
June 1, 1997, black sea bass at sea for landing at any port of the 
United States must submit information identical to that required by 
paragraph (a)(1) or (a)(2) of this section, as applicable, and provide 
those reports to the Regional Director or designee on the same 
frequency basis.
    10. In Sec. 648.11, the first sentence in paragraph (a), and 
paragraph (e) are revised to read as follows:


Sec. 648.11  At-sea sea sampler/observer coverage.

    (a) The Regional Director may request any vessel holding a permit 
sea scallop; or NE multispecies; or a moratorium permit for summer 
flounder, or, as of January 1, 1997, mackerel, squid, or butterfish, or 
scup, or as of June 1, 1997, black sea bass fisheries to carry a NMFS-
approved sea sampler/observer. * * *
* * * * *
    (e) The owner or operator of a vessel issued a summer flounder 
moratorium permit, or as of January 1, 1997, a scup moratorium permit 
or, as of June 1, 1997, a black sea bass moratorium permit, if 
requested by the sea sampler/observer also must:
    (1) Notify the sea sampler/observer of any sea turtles, marine 
mammals, summer flounder, scup, or black sea

[[Page 58466]]

bass, or other specimens taken by the vessel.
    (2) Provide the sea sampler/observer with sea turtles, marine 
mammals, summer flounder, scup, or black sea bass, or other specimens 
taken by the vessel.
* * * * *
    11. Section 648.12 is revised to read as follows:


Sec. 648.12  Experimental fishing.

    The Regional Director may exempt any person or vessel from the 
requirements of subparts B (Atlantic mackerel, squid, and butterfish), 
D (sea scallop), E (surf clam and ocean quahog), F (NE multispecies), G 
(summer flounder), H (scup), or I (black sea bass), of this part for 
the conduct of experimental fishing beneficial to the management of the 
resources or fishery managed under that subpart. The Regional Director 
shall consult with the Executive Director of the Council regarding such 
exemptions for the Atlantic mackerel, squid, and butterfish, the summer 
flounder, the scup, and the black sea bass fisheries.
    12. In Sec. 648.14, paragraph (a)(8) is revised, paragraphs (a)(90) 
through (a)(95) are added, paragraph (u) is redesignated as paragraph 
(w), and paragraphs (u), (v), and (w)(7) are added to read as follows:


Sec. 648.14  Prohibitions.

    (a) * * *
    (8) Assault, resist, oppose, impede, harass, intimidate, interfere 
with or bar by command, impediment, threat, or coercion either a NMFS-
approved observer, sea sampler, or other NMFS-authorized employee 
aboard a vessel or in a dealer/processor establishment, conducting his 
or her duties aboard a vessel or in a dealer/processor establishment, 
or an authorized officer conducting any search, inspection, 
investigation, or seizure in connection with enforcement of this part.
* * * * *
    (90) Possess in or harvest from the EEZ from 35 deg.15.3' N. lat., 
the latitude of Cape Hatteras Light, NC, northward to the U.S.-Canada 
border, black sea bass either in excess of the possession limit 
established pursuant to Sec. 648.145 or before or after the time period 
established pursuant to Sec. 648.142, unless the person is operating a 
vessel issued a moratorium permit under Sec. 648.4 and the moratorium 
permit is on board the vessel and has not been surrendered, revoked, or 
suspended;
    (91) Fish for, catch, or retain 100 lb or more (45.4 kg or more) of 
black sea bass in or from the EEZ from 35 deg.15.3' N. lat., the 
latitude of Cape Hatteras Light, NC, northward to the U.S.-Canada 
border, unless the vessel meets the gear restrictions of Sec. 648.144.
    (92) Purchase or otherwise receive for commercial purposes black 
sea bass caught in the EEZ from 35 deg.15.3' N. lat., the latitude of 
Cape Hatteras Light, North Carolina, northward to the U.S.-Canada 
border, by other than a vessel with a moratorium permit not subject to 
the possession limit established pursuant to Sec. 648.145 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.
    (93) Possess or use rollers used in roller rig or rock hopper trawl 
gear that do not meet the minimum size requirement of Sec. 648.144 if 
the person possesses black sea bass harvested in or from the EEZ from 
35 deg.15.3' N. lat., the latitude of Cape Hatteras Light, NC, 
northward to the U.S.-Canada border.
    (94) Possess or use pot and trap gear not meeting the requirements 
of Sec. 648.144 if the person possesses black sea bass harvested in or 
from the EEZ from 35 deg.15.3' N. lat., the latitude of Cape Hatteras 
Light, NC, northward to the U.S.-Canada border.
    (95) Purchase or otherwise receive for commercial purposes black 
sea bass landed for sale by a moratorium vessel in any state, or part 
thereof, north of 35 deg.15.3' N. lat., after the effective date of the 
notification published in the Federal Register stating that the 
commercial quarterly quota has been harvested and the EEZ is closed to 
the harvest of black sea bass.
* * * * *
    (u) In addition to the general prohibitions specified in 
Sec. 600.725 of this chapter and in paragraph (a) of this section, it 
is unlawful for any person owning or operating a vessel issued a black 
sea bass permit (including a moratorium permit) to do any of the 
following:
    (1) Possess 100 lb (45.4 kg) or more of black sea bass, unless the 
vessel meets the minimum mesh requirement specified in Sec. 648.144(a).
    (2) Possess black sea bass in other than a box specified in 
Sec. 648.145(c) if fishing with nets having mesh that does not meet the 
minimum mesh-size requirement specified in Sec. 648.144(a).
    (3) Land black sea bass for sale in any state, or part thereof, 
north or south of 35 deg.15.3' N. lat., after the effective date of the 
notification published in the Federal Register stating that the 
commercial quarterly quota has been harvested and the EEZ is closed to 
the harvest of black sea bass.
    (4) Fish with or 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. 648.144, unless the nets or netting are stowed in accordance with 
Sec. 648.23(b).
    (5) Fish with or possess rollers used in roller rig or rock hopper 
trawl gear that do not meet the requirements specified in 
Sec. 648.144(a)(5).
    (6) Fish with or possess pots or traps that do not meet the 
requirements specified in Sec. 648.144(b).
    (7) Sell or transfer to another person for a commercial purpose, 
other than transport on land, any black sea bass, unless the transferee 
has a valid black sea bass dealer permit.
    (8) 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 black sea bass moratorium permit.
    (9) Possess, retain or land black sea bass harvested in or from the 
EEZ in excess of the commercial trip limit established pursuant to 
Sec. 648.140.
    (10) Land black sea bass for sale in any state south of North 
Carolina.
    (11) Possess black sea bass harvested in or from the EEZ north or 
south of 35 deg.15.3' N. lat. after the effective date of the 
notification published in the Federal Register stating that the 
commercial quarterly quota has been harvested and the EEZ is closed to 
the harvest of black sea bass.
    (v) It is unlawful for the owner and operator of a party or charter 
boat issued a black sea bass permit (including a moratorium permit), 
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 black sea bass in excess of the possession limit 
established pursuant to Sec. 648.145.
    (2) Fish for black sea bass other than during a season specified 
pursuant to Sec. 648.142.
    (3) Sell black sea bass or transfer black sea bass to another 
person for a commercial purpose.
    (w) * * *
    (7) Black sea bass. All black sea bass possessed on board a party 
or charter boat issued a permit under Sec. 648.4(a)(7)(ii) are deemed 
to have been harvested from U.S. waters of the western Atlantic Ocean 
from 35 deg.15.3' N. lat., the latitude of Cape Hatteras Light, NC, 
northward to the U.S.-Canada border.
    13. Subpart I is added to part 648 to read as follows:

[[Page 58467]]

Subpart I--Management Measures for the Black Sea Bass Fishery

Sec.
648.140  Catch quotas and other restrictions.
648.141  Closure.
648.142  Time restrictions.
648.143  Minimum sizes.
648.144  Gear restrictions.
648.145  Possession limit.
648.146  Special management zones.

Subpart I--Management Measures for the Black Sea Bass Fishery


Sec. 648.140  Catch quotas and other restrictions.

    (a) Annual review. The Black Sea Bass Monitoring Committee will 
review the following data, subject to availability, on or before August 
15 of each year to determine the allowable levels of fishing and other 
restrictions necessary to result in a target exploitation rate of 48 
percent for black sea bass in 1998, 1999, and 2000; a target 
exploitation rate of 37 percent in 2001 and 2002; and a target 
exploitation rate of 23 percent (based on Fmax) in 2003 and 
subsequent years: Commercial and recreational catch data; current 
estimates of fishing mortality; stock status; recent estimates of 
recruitment; virtual population analysis results; levels of 
noncompliance by fishermen or individual states; impact of size/mesh 
regulations; 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; impact of gear other 
than otter trawls, pots and traps on the mortality of black sea bass; 
and any other relevant information.
    (b) Recommended measures. Based on this review, the Black Sea Bass 
Monitoring Committee will recommend to the Demersal Species Committee 
of the Council and the Commission the following measures to assure that 
the target exploitation rate specified in paragraph (a) of this section 
is not exceeded:
    (1) A commercial quota allocated to quarterly periods set from a 
range of (0) to the maximum allowed to achieve the specified target 
exploitation rate specified in paragraph (a) of this section. 
Implementation of this measure will begin in 1998.
    (2) A commercial trip limit for all moratorium vessels set from a 
range of (0) to the maximum allowed to assure that the quarterly quota 
is not exceeded.
    (3) Commercial minimum fish size.
    (4) Minimum mesh size in the codend or throughout the net and the 
catch threshold that will require compliance with the minimum mesh 
requirement.
    (5) Escape vent size.
    (6) A recreational possession limit set from a range of (0) to the 
maximum allowed to achieve the target exploitation rate specified in 
paragraph (a) of this section. Implementation of this measure will 
begin in 1998.
    (7) Recreational minimum fish size.
    (8) Recreational season. This measure may be adjusted beginning in 
1998.
    (9) Restrictions on gear other than otter trawls and pots or traps.
    (c) Annual fishing measures. The Demersal Species Committee shall 
review the recommendations of the Black Sea Bass Monitoring Committee. 
Based on these recommendations and any public comment, the Demersal 
Species Committee shall make its recommendations to the Council with 
respect to the measures necessary to assure that the target 
exploitation rate specified in paragraph (a) of this section is not 
exceeded. The Council shall review these recommendations and, based on 
the recommendations and public comment, make recommendations to the 
Regional Director with respect to the measures necessary to assure that 
the target exploitation rate specified in paragraph (a) of this section 
is 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 a proposed rule in the 
Federal Register by October 15 to implement a commercial quota and a 
recreational harvest limit, and additional management measures for the 
commercial fishery, and will publish a proposed rule in the Federal 
Register by February 15 to implement additional management measures for 
the recreational fishery, if he or she determines that such measures 
are necessary to assure that the target exploitation rate specified in 
paragraph (a) of this section is not exceeded. After considering public 
comment, the Regional Director will publish a final rule in the Federal 
Register to implement the measures necessary to assure that the target 
exploitation rate specified in paragraph (a) of this section is not 
exceeded.
    (d) Distribution of annual quota. (1) Beginning January 1, 1998, a 
commercial quota will be allocated by quarterly periods based upon the 
following percentages:

                    Quarterly Commercial Quota Shares                   
------------------------------------------------------------------------
                                                                Share   
                          Quarter                             (percent) 
------------------------------------------------------------------------
January-March..............................................        38.64
April-June.................................................        29.26
July-September.............................................        12.33
October-December...........................................        19.77
------------------------------------------------------------------------

    (2) All black sea bass landed for sale in the states from North 
Carolina through Maine by a vessel with a moratorium permit issued 
under Sec. 648.4(a)(7) shall be applied against that quarter's 
commercial quota, regardless of where the black sea bass were 
harvested. All black sea bass harvested north of 35 deg.15.3' N. lat., 
and landed for sale in the states from North Carolina through Maine by 
any vessel without a moratorium permit and fishing exclusively in state 
waters will be counted against the quota by the state in which it is 
landed pursuant to the Fishery Management Plan for the Black Sea Bass 
Fishery adopted by the Commission. The Regional Director will determine 
the date on which the quarterly quota will be harvested and the EEZ 
north of 35 deg.15.3' N. lat. closed. The Regional Director will 
publish a notice in the Federal Register advising that, upon that date, 
no vessel may possess black sea bass in the EEZ north of 35 deg.15.3' 
N. lat. during a closure, nor may vessels issued a moratorium permit 
land black sea bass during the closure. Individual states will have the 
responsibility to close their ports to landings of black sea bass 
during a closure pursuant to the Fishery Management Plan for the Black 
Sea Bass Fishery adopted by the Commission. Any overages of the 
commercial quarterly quota landed will be deducted from that quarter's 
quota for the following year.


Sec. 648.141  Closure.

    EEZ closure. The Regional Director shall close the EEZ to fishing 
for black sea bass by commercial vessels issued a moratorium permit for 
the remainder of the calendar year by publishing notification in the 
Federal Register if he or she determines that the action or inaction of 
one or more states will cause the applicable target exploitation rate 
specified in Sec. 648.140(a) to be exceeded. The Regional Director may 
reopen the EEZ if earlier action or inaction by a state has been 
remedied by that state without causing the applicable specified target 
exploitation rate to be exceeded.


Sec. 648.142  Time restrictions.

    Vessels that are not eligible for a moratorium permit under 
Sec. 648.4(a)(6)

[[Page 58468]]

and fishermen subject to the possession limit may fish for black sea 
bass from January 1 through December 31. Beginning in 1998, this time 
period may be adjusted pursuant to the procedures in Sec. 648.140.


Sec. 648.143  Minimum sizes.

    (a) The minimum size for black sea bass is 9 inches (22.9 cm) total 
length for all vessels issued a permit under Sec. 648.4(a)(7) and for 
all other vessels which fish for or retain black sea bass in or from 
U.S. waters of the western Atlantic Ocean from 35 deg.15.3' N. lat., 
the latitude of Cape Hatteras Light, North Carolina, northward to the 
U.S.-Canada border. The minimum size may be adjusted for commercial 
and/or recreational vessels pursuant to the procedures in Sec. 648.140.
    (b) The minimum size in this section applies to the whole fish or 
any part of a fish found in possession (e.g., fillets), except that 
party or charter vessels possessing valid state permits authorizing 
filleting at sea may possess fillets smaller than the size specified if 
skin remains on the fillet and all other state requirements are met.


Sec. 648.144  Gear restrictions.

    (a) Trawl gear restrictions--(1) General. (i) Otter trawlers whose 
owners are issued a black sea bass moratorium permit and that land or 
possess 100 lb or more (45.4 kg or more) of black sea bass per trip, 
must fish with nets that have a minimum mesh size of 4.0 inches (10.2 
cm) diamond or 3.5 inches (8.9 cm) square (inside measure) 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 center of the head 
rope, excluding any turtle excluder device extension.
    (ii) Mesh sizes shall be measured pursuant to the procedure 
specified in Sec. 648.104(a)(2).
    (2) Net modifications. No vessel subject to this part shall 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; except that, one splitting strap and 
one bull rope (if present) consisting of line or rope no more than 3 
inches (7.6 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 than 0.75 inches (1.9 cm) 
in diameter extending the length of the net from the belly to the 
terminus of the codend along 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.
    (3) Mesh obstruction or constriction. (i) 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 (a)(2) of this section, 
that obstructs the meshes of the net in any manner, or otherwise causes 
the size of the meshes of the net while in use to diminish to a size 
smaller than the minimum established pursuant to paragraph (a)(1)(i) of 
this section.
    (ii) No person on any vessel may possess or fish with a net capable 
of catching black sea bass in which the bars entering or exiting the 
knots twist around each other.
    (4) Stowage of nets. Otter trawl vessels subject to the minimum 
mesh-size requirement of paragraph (a)(1)(i) of this section may not 
have ``available for immediate use'' any net or any piece of net that 
does not meet the minimum mesh size requirement, or any net, or any 
piece of net, with mesh that is rigged in a manner that is inconsistent 
with the minimum mesh size requirement. A net that is stowed in 
conformance with one of the methods specified in Sec. 648.23(b) and 
that can be shown not to have been in recent use, is considered to be 
not ``available for immediate use.''
    (5) Roller gear. Rollers used in roller rig or rock hopper trawl 
gear shall be no larger than 18 inches (45.7 cm) in diameter.
    (b) Pot and trap gear restrictions--(1) Escape vents. All black sea 
bass traps or pots must have an escape vent placed in a lower corner of 
the parlor portion of the pot or trap which complies with one of the 
following minimum sizes: 1.125 inches (2.86 cm) by 5.75 inches (14.61 
cm); or a circular vent 2 inches (5.08 cm) in diameter; or a square 
vent with sides of 1.5 inches (3.81 cm), inside measure. These 
dimensions may be adjusted pursuant to the procedures in Sec. 648.140.
    (2) Gear marking. The owner of a vessel issued a black sea bass 
moratorium permit must mark all black sea bass pots or traps with the 
vessel's USCG documentation number or state registration number.
    (3) Degradable panels. Black sea bass pots or traps must have the 
hinges and fasteners of one panel or door 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; or
    (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.
    (4) Ghost panels. Black sea bass traps or pots must contain a panel 
affixed to the trap or pot with degradable fasteners as specified in 
paragraph (b)(3) of this section and which measures at least 3.0 inches 
(7.62 cm) by 6.0 inches (15.24 cm).
    (5) Lathe spacing. Pots or traps constructed of wooden lathes must 
have spacing of a least 1.125 inches (2.8575 cm) between one set of 
lathes in the parlor portion of the trap.


Sec. 648.145  Possession limit.

    A possession limit will be established pursuant to the procedures 
in Sec. 648.140 to assure that the recreational harvest limit is not 
exceeded.
    (a) If whole black sea bass are processed into fillets, an 
authorized officer will convert the number of fillets to whole black 
sea bass at the place of landing by dividing fillet number by two. If 
black sea bass are filleted into a single (butterfly) fillet, such 
fillet shall be deemed to be from one whole black sea bass.
    (b) Black sea bass 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 black sea bass on board by the 
number of persons aboard, other than the captain and the 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.
    (c) Owners or operators of otter trawl vessels issued a moratorium 
permit under Sec. 648.4(a)(6) 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 Sec. 648.144(a)(4), may not 
retain 100 lb or more (45.4 kg or more) of black sea bass. Black sea 
bass on board these vessels shall be stored so as to be readily 
available for inspection in a standard 100-lb (45.4-kg) tote.


Sec. 648.146  Special management zones.

    The recipient of a Corps of Engineers permit for an artificial 
reef, fish

[[Page 58469]]

attraction device, or other modification of habitat for purposes of 
fishing may request that an area surrounding and including the site be 
designated by the Council as a special management zone (SMZ). The SMZ 
will prohibit or restrain the use of specific types of fishing gear 
that are not compatible with the intent of the artificial reef or fish 
attraction device or other habitat modification. The establishment of 
an SMZ will be effected by a regulatory amendment pursuant to the 
following procedure:
    (a) A SMZ monitoring team comprised of members of staff from the 
Mid-Atlantic FMC, NMFS Northeast Region, and NMFS Northeast Fisheries 
Science Center will evaluate the request in the form of a written 
report considering the following criteria:
    (1) Fairness and equity.
    (2) Promotion of conservation.
    (3) Avoidance of excessive shares.
    (4) Consistency with the objectives of Amendment 9 to the Fishery 
Management Plan for the Summer Flounder, Scup and Black Sea Bass 
fisheries, the Magnuson-Stevens Act, and other applicable law.
    (5) The natural bottom in and surrounding potential SMZs.
    (6) Impacts on historical uses.
    (b) The Council Chairman may schedule meetings of Industry Advisors 
and/or the Scientific and Statistical Committee to review the report 
and associated documents and to advise the Council. The Council 
Chairman may also schedule public hearings.
    (c) The Council, following review of the SMZ monitoring teams's 
report, supporting data, public comments, and other relevant 
information, may recommend to the Regional Director that a SMZ be 
approved. Such a recommendation will be accompanied by all relevant 
background information.
    (d) The Regional Director will review the Council's recommendation. 
If the Regional Director concurs in the recommendation, he or she will 
publish a proposed rule in the Federal Register in accordance with the 
recommendations. If the Regional Director rejects the Council's 
recommendation, he or she shall advise the Council in writing of the 
basis for the rejection.
    (e) The proposed rule shall afford a reasonable period for public 
comment. Following a review of public comments and any information or 
data not previously available, the Regional Director will publish a 
final rule if he or she determines that the establishment of the SMZ is 
supported by the substantial weight of evidence in the administrative 
record and consistent with the Magnuson-Stevens Act and other 
applicable law.
[FR Doc. 96-29165 Filed 11-14-96; 8:45 am]
BILLING CODE 3510-22-P