[Federal Register Volume 63, Number 42 (Wednesday, March 4, 1998)]
[Rules and Regulations]
[Pages 10561-10569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5476]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 970606131-8033-02; I.D. 041497C]
RIN 0648-AG25


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Coastal Migratory Pelagic Resources of the Gulf of Mexico and South 
Atlantic; Amendment 8

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement the approved measures 
in Amendment 8 to the Fishery Management Plan for the Coastal Migratory 
Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). These 
measures revise the earned income requirement for a commercial vessel 
permit for king or Spanish mackerel, establish a moratorium on the 
issuance of commercial vessel permits for king mackerel, extend the 
management area for cobia to include the exclusive economic zone (EEZ) 
off the states of Virginia through New York, specify allowable gear in 
the fisheries for coastal migratory pelagic resources, allow the 
retention of up to five cut-off king mackerel in excess of an 
applicable commercial trip limit, and add to the management measures 
that may be established or modified by the FMP's framework procedure. 
In addition, NMFS clarifies that a Federal vessel permit is not 
required for the use of a sea bass pot north of Cape Hatteras, NC; 
clarifies what constitutes commercial fishing for the purpose of 
obtaining a commercial vessel permit; revises the definition of 
``charter vessel'' to conform to a new definition of charter fishing in 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act); and makes explicit the authority of NMFS to reopen a 
fishery that has been closed prematurely, i.e., prior to a quota having 
been reached. The intended effects of this rule are to protect king and 
Spanish mackerel from overfishing and maintain healthy stocks while 
still allowing catches by important commercial and recreational 
fisheries and to clarify and correct the regulations.
DATES: This rule is effective April 3, 1998, except that changes to 
Sec. 622.4 are effective March 4, 1998.

ADDRESSES: Copies of the final regulatory flexibility analysis (FRFA) 
may be obtained from the Southeast Regional Office, NMFS, 9721 
Executive Center Drive N., St. Petersburg, FL 33702.
    Comments regarding the collection-of-information requirements 
contained in this rule should be sent to Edward E. Burgess, Southeast 
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, 
FL 33702, and to the Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Washington, DC 20503 (Attention: 
NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Mark Godcharles, 813-570-5305.

SUPPLEMENTARY INFORMATION: The fisheries for coastal migratory pelagic 
resources are managed under the FMP. The FMP was prepared jointly by 
the Gulf of Mexico Fishery Management Council and the South Atlantic 
Fishery Management Council (Councils) and is implemented under the 
authority of the Magnuson-Stevens Act by regulations at 50 CFR part 
622.
    On June 23, 1997, NMFS published a proposed rule to implement the 
measures in Amendment 8 and additional measures proposed by NMFS (62 FR 
33800). The background and rationale for those measures are contained 
in the preamble to the proposed rule and are not repeated here. On July 
23, 1997, NMFS partially approved Amendment 8. Two measures were not 
approved, namely, the removal of the current prohibition on the use of 
a drift gillnet in a directed fishery for coastal migratory pelagic 
fish north of Cape Lookout, NC, and revisions of the FMP's definitions 
of overfishing and overfished.

Drift Gillnets in Directed Fisheries North of Cape Lookout

    NMFS disapproved the proposal to authorize the use of drift 
gillnets in directed fisheries for coastal migratory pelagic species 
north of Cape Lookout, NC, because Amendment 8 does not contain any 
rationale for such use. Specifically, Amendment 8 describes neither 
impacts on existing harvesters under the current prohibition on the use 
of this gear nor any benefits that would result from approving its use. 
Under section 303(a)(1) of the Magnuson-Stevens Act, an FMP must 
contain, among other things, the conservation and management measures 
that are necessary and appropriate for the conservation and management 
of the fishery. In addition, E.O. 12866 specifies that NMFS should 
promulgate only such regulations that are required by law, necessary to 
interpret the law, or are made necessary by compelling public need and 
must base its decisions regarding appropriate regulations on the best 
reasonably obtainable information concerning the need for, and 
consequences of, the intended regulations. Finally, the Administrative 
Procedure Act requires NMFS to incorporate in a final rulemaking a 
concise statement of its basis and purpose. Lacking information on the 
need for and consequences of the proposal to authorize the use of drift 
gillnets in directed fisheries for coastal migratory pelagic species 
north of Cape Lookout, NC, NMFS disapproved this measure.

Definitions of Overfishing and Overfished

    NMFS disapproved the revised FMP definitions of overfishing/
overfished for all coastal migratory pelagic species because they were 
found to be inconsistent with the Magnuson-Stevens Act definitions of 
overfishing and overfished, and with national standards 1 and 2. 
Specifically, reducing the overfished threshold from 30 percent to the 
20 percent level of the spawning potential ratio (SPR) would allow the 
Councils to recommend a higher level of fishing mortality, which could 
jeopardize the capacity of the fisheries to produce maximum sustainable 
yield (MSY) on a continuing basis. Retention of the overfished 
threshold at the 30 percent SPR level, in combination with the 
Magnuson-Stevens Act mandate to rebuild an overfished stock within a 
definite time period if it falls below that threshold, will provide a 
more risk-averse management strategy for attaining MSY on a continuing 
basis than would be the case with the 20-

[[Page 10562]]

 percent SPR overfished threshold. Currently, the Mackerel Stock 
Assessment Panel's best estimate of MSY is 30 percent SPR, the FMP 
defines long-term optimum yield (OY) as MSY, and stock assessment 
scientists advise that the best estimate of OY for mackerels ranges 
between 30-percent and 40-percent SPR. With disapproval of the proposed 
overfishing/overfished definitions, Gulf group king mackerel is still 
considered to be overfished; therefore, the rebuilding requirements of 
section 304(e) of the Magnuson-Stevens Act still apply to this stock.

Unauthorized Gear and Directed Fishery

    As used in this rule, unauthorized gear is any gear not 
specifically authorized in a directed fishery for a species, migratory 
group, and/or geographical area. ``Directed fishery'' is not defined. 
Nevertheless, the specification of authorized gear in a ``directed 
fishery'' is included in this rule as a statement of the Councils' 
intent. Conformance with that intent will be accomplished by 
enforcement of the limitations on possession of species, by migratory 
group and/or geographical area, when specific unauthorized gear is on 
board a vessel. For example, as specified at Sec. 622.41(c)(2)(i), a 
vessel with a long gillnet on board in the Gulf, Mid-Atlantic, or South 
Atlantic EEZ may not have on board any coastal migratory pelagic fish. 
Specific possession limitations at Sec. 622.41(c)(2)(ii) and (iii) 
apply to vessels with other unauthorized gear on board in specified 
areas and/or for species of migratory pelagic fish.

Comments and Responses

    Ninety-nine individuals and two government agencies provided 
written comments on Amendment 8 and the proposed rule. Comments in 
opposition focused on the moratorium for issuing new commercial permits 
for king mackerel, the exclusion of gillnets as an authorized gear for 
Atlantic group king mackerel south of Cape Lookout, NC, the restriction 
of the incidental catch by unauthorized gear to the bag limit, the 
revision of the earned income qualifications to obtain vessel permits 
for commercial king and Spanish mackerel fishing, and the exclusion of 
spearfishing gear as authorized gear in the directed fishery for cobia.
    About 75 percent of the responses expressed support for Amendment 
8. Seventy-three individuals submitted comments, mainly on form 
letters, that supported the exclusion of gillnets as an authorized gear 
for directed fishing for Atlantic group king mackerel off the Florida 
east coast. Implementation of that measure, they believe, would 
eliminate illegal drift gillnet fishing for king mackerel occurring in 
that area. Six commenters, including the Florida Marine Fisheries 
Commission and the U.S. Fish and Wildlife Service, supported all 
proposals in Amendment 8. Two commenters each supported the revised 
earned income requirements to obtain commercial mackerel permits and 
the allowance for five cut-off (damaged) king mackerel above 
established commercial trip limits. Single responses were received from 
individuals supporting provisions to transfer king mackerel permits 
during the moratorium, to restrict the incidental catch of Atlantic 
group king mackerel by unauthorized gear to the bag limit, and to allow 
possession above the commercial trip limits of five cut-off (damaged) 
king mackerel. Specific comments and NMFS responses are discussed 
below.

Revised Earned Income Requirements

    Comment: Three individuals opposed revising the earned income 
requirement for a commercial king or Spanish mackerel permit because 
they would be unable to qualify for a permit if the revisions were 
approved.
    Response: NMFS finds that increasing the earned income requirement 
from 10 to 25 percent of earned income, or at least $10,000, derived 
from sale of fish or from charter fishing is necessary to differentiate 
clearly between fishermen subject to the bag limits and those subject 
to the commercial quotas. Such clarification is necessary to limit 
harvest of commercial mackerel quotas to fishermen who are primarily 
dependent on commercial or charter fishing for their livelihoods. Under 
the revised earned income or gross sales requirement, some fishermen 
who currently qualify for permits based on sales of small amounts of 
fish will be unable to qualify for a commercial permit and will be 
restricted to the bag limits.
    A recent analysis of commercial mackerel permit files by NMFS 
indicates that approximately 57 vessel owners, or about 2 percent of 
the commercial mackerel permit holders, do not currently meet the 
revised earned income requirement. However, if a fisherman in the 
future meets the revised earned income requirement, he or she may apply 
for and obtain a commercial Spanish mackerel permit and may obtain a 
commercial king mackerel permit if the moratorium criteria are met.
    Comment: One person commented that the income requirement should be 
50 percent of earned income.
    Response: The Councils rejected, as too restrictive, an alternative 
that would have required at least 50 percent of earned income, or 
$20,000, be derived from sale of fish or from charter fishing in 1 of 
the 3 calendar years preceding the application to qualify for a 
commercial vessel permit for king or Spanish mackerel. Some long-time 
commercial fishermen, faced with increasingly restrictive state and 
Federal fishing regulations, would have been ineligible under that 
alternative.
    Comment: One individual commented that an exception to the income 
requirements should be available to fishermen over age 62 or to 
retirees.
    Response: In Amendment 8, the Councils considered an alternative 
that would have grandfathered into the fishery fishermen age 62 or 
older who had held a mackerel permit for longer than 10 years. However, 
that option also had a minimum threshold income from the sale of fish 
of $5,000. The Councils rejected this alternative because some part-
time and recreational fishermen would still be able to meet the minimum 
threshold income level and, thus, the desired reduction in the number 
of current permit holders would not have been realized. Under the 
current regulations, no qualifying income exceptions exist for 
fishermen over age 62 or for retirees. Such actions may be considered 
in future amendments.

Moratorium on Commercial Permits for King Mackerel

    Comment: Eighteen commenters opposed the use of the control date, 
i.e., October 16, 1995, to determine eligibility for retaining a permit 
to commercially fish for king mackerel under the quotas. Most stated 
that current permit holders should continue to maintain their king 
mackerel permit even if it was initially issued after the control date. 
Some opposed the provision that will allow individuals to renew expired 
permits while those currently holding permits that were issued after 
October 16, 1995, will be denied renewal opportunities. Several stated 
that they did not apply for a permit prior to the control date because 
they fished only in Florida's waters and were unaware of the state 
regulations specifying requirements for vessel owners to hold a Federal 
mackerel permit.
    Response: NMFS approved the permit moratorium as a necessary 
measure to stabilize participation in the king

[[Page 10563]]

mackerel fishery, to prevent speculative entry and further increases in 
effort on stocks that currently are undergoing rebuilding, and to 
possibly reduce the number of permitted vessels, while the Councils 
consider a limited access program. Further increases in participation 
would be expected if fishermen displaced from inshore commercial 
fisheries by state restrictions were not prevented from entering 
offshore king mackerel fisheries in the EEZ. Currently, Gulf group king 
mackerel quotas are taken quickly in areas where there are no trip 
limits, and Gulf and Atlantic group king mackerel quotas are taken by 
the end of the season in areas where harvests are controlled by trip 
limits. Any increase in the number of harvesters would hasten closures 
and negatively impact traditional participants. Those losing king 
mackerel permits under this measure may still participate in king 
mackerel fisheries up to 14 months after the final rule is published. 
They may also acquire a king mackerel permit through the transfer 
provisions, and most of them will likely retain their commercial 
permits to fish under the commercial Spanish mackerel quotas.
    Permits to harvest king mackerel commercially in the EEZ have been 
required for the Gulf group king mackerel since the implementation of 
Amendment 1 in 1985 (50 FR 34840, August 28, 1985) and for the Atlantic 
group since the implementation of seasonal framework adjustments in 
1986 (51 FR 9659, March 20, 1986). To possess more than the king 
mackerel bag limit in state waters, Florida has required a vessel to 
hold a Federal mackerel permit since December 1985 for the Gulf 
migratory group and since March 1987 for the Atlantic migratory group.
Authorized Gear and Incidental Catch Allowance for Unauthorized Gear

King Mackerel, Atlantic Migratory Group

    Comment: Four Florida gillnetters opposed prohibiting directed 
gillnet fishing for Atlantic group king mackerel and restricting 
possession of that group to the bag limit aboard a vessel using a 
gillnet, particularly a shark drift gillnet off the Florida east coast. 
They stated that, as mackerel permit holders and current fishery 
participants, they are entitled to the commercial trip limit for 
Atlantic group king mackerel, even if using a gillnet.
    Response: NMFS found the approved measures for authorized gear and 
incidental catch allowance for unauthorized gear to be consistent with 
the Magnuson-Stevens Act and other applicable laws. The approved 
authorized gear measures and incidental catch allowances for gillnets 
should clarify the Council's intent and enhance enforceability of the 
current regulations, end harvest of coastal migratory pelagic species 
with illegal driftnet gear, and prevent gear conflicts. Nonetheless, 
under the newly implemented and existing regulations, no commercial 
mackerel permit holders will be excluded from harvesting king or 
Spanish mackerel under the daily trip limits as long as they use 
authorized gear.
    Fisheries information indicates that directed fishing for Atlantic 
group king mackerel with drift gillnets has continued in the EEZ off 
the Florida east coast after the gear was prohibited in that fishery 
and in the fisheries for all coastal migratory pelagic species on April 
13, 1990 (55 FR 14834, April 19, 1990). That regulatory action also 
prohibited possession of coastal migratory pelagic species on vessels 
with a drift gillnet on board or a gillnet with a float line longer 
than 1,000 yd (914 m) that has fished in the Gulf, Mid-Atlantic, or 
South Atlantic EEZ. Those prohibitions, previously contained in the 
regulations at 50 CFR 622.31(d), remain in force and unaltered by this 
action. To simplify references to a gillnet with a float line length 
greater than 1,000 yd (914 m), the term is now defined in the 
regulations as ``long gillnet.''
Cobia
    Comment: One commenter expressed concern that cobia could not be 
taken in a directed fishery by spearfishing gear, including powerheads, 
unless that gear was added to the authorized gears for cobia.
    Response: Fishermen may continue to use spearfishing gear, 
including powerheads, in the EEZ to harvest cobia under the provisions 
for incidental take, i.e., the 2-fish per day possession limit, except 
in the special management zones in the South Atlantic where 
spearfishing or use of a powerhead is not allowed. The 2-fish per day 
harvest/possession limit applies to both commercial and recreational 
fishermen and does not represent a change from current regulations.

Miscellaneous

    Comment 7: One fisherman commented that the use of live bait and 
chum to capture king mackerel should be prohibited to save stocks.
    Response: Restrictions on the type and use of bait were not 
considered in Amendment 8 but may be considered in future amendments.
    Comment 8: One commenter expressed support for the authorized gear 
proposals, provided that nets be unauthorized gear for king mackerel, 
Spanish mackerel, cero, and bluefish, and that nets and longlines be 
unauthorized gear for cobia, dolphin, and little tunny.
    Response: Approved authorized gear measures in Amendment 8 will 
allow the continued use of nets and surface longlines in some coastal 
pelagic fisheries. The Councils proposed the gear changes to clarify 
their intent, to prevent gear conflicts, and to enhance enforceability 
by specifying possession limits for incidental catch when gear not 
authorized in directed fishing is on board. The approved measures 
evidence the Councils' intent to allow continued use of traditional 
gear. NMFS found the measures to be consistent with the Magnuson-
Stevens Act, other applicable law, and the FMP, and approved them.
    NMFS also approved a number of Amendment 8's revisions to the 
annual FMP framework procedures for adjusting management measures. One 
authorizes the adjustment of gear limitations that range from 
restrictions to complete prohibition. The Councils may use this 
modified framework procedure in the future to revise authorized gears 
for coastal migratory pelagic species.

Changes from the Proposed Rule

    To clarify that the definition of a long gillnet includes all 
gillnets, either attached or unattached to the bottom, that have float 
lines that are more than 1,000 yd (914 m) in length, this final rule 
revises the current definition of drift gillnet by excluding a long 
gillnet. Such exclusion is consistent with the proposed and final 
rule's definitions of run-around gillnet and stab net.
    As discussed above, this final rule does not allow the use of a 
drift gillnet north of Cape Lookout, NC, in a directed fishery for 
coastal migratory pelagic fish. Appropriate changes from the proposed 
rule are made at Sec. 622.41(c)(1)(i)(A), (c)(1)(iii), and (c)(1)(vi).
    The proposed rule inadvertently did not include the current 
prohibition on the use of a drift gillnet in the Gulf EEZ in a directed 
fishery for bluefish, cero, dolphin, and little tunny. Amendment 8 does 
not change this prohibition. Appropriate changes from the proposed rule 
are made at Sec. 622.41(c)(1)(vii) and (c)(2)(ii).
    In Sec. 622.41(c)(2)(iii) and (iv), the language is changed to 
clarify that bag limits apply to persons aboard vessels,

[[Page 10564]]

rather than to vessels. In addition, Sec. 622.41(c)(2)(iv), the 
exception for the possession of king mackerel in excess of the bag 
limits, is restructured for ease of understanding and revised to 
clarify that (1) the exception applies to king mackerel in the Gulf EEZ 
and to king mackerel taken in the Gulf EEZ and possessed in the Gulf--
it does not apply to king mackerel taken in the Gulf and possessed in 
the South Atlantic EEZ, and (2) the possession of king mackerel remains 
subject to the king mackerel closures and trip limits.
    This final rule does not include the revisions to Sec. 622.34 that 
were in the proposed rule. Those revisions, which remove references to 
figures that are not contained in the regulations in part 622, have 
been made by another rulemaking.

Classification

    The Regional Administrator, Southeast Region, NMFS, with 
concurrence by the Assistant Administrator for Fisheries, NOAA, 
determined that the approved measures of Amendment 8 are necessary for 
the conservation and management of the fishery for coastal migratory 
pelagic resources of the Gulf of Mexico and South Atlantic, and that, 
with the exception of those measures that were disapproved, Amendment 8 
is consistent with the Magnuson-Stevens Act and other applicable law.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Councils prepared an initial regulatory flexibility analysis 
(IRFA) that described the impact the proposed rule, if adopted, would 
have on small entities. Based on the IRFA, NMFS concluded that 
Amendment 8, if approved and implemented through final regulations, 
would have significant economic impacts on a substantial number of 
small entities. NMFS considered the comments received on Amendment 8 
and the proposed rule that relate to the IRFA, and the effects of 
disapproval of two measures in Amendment 8, discussed above, and 
prepared an FRFA. Based on the FRFA, NMFS concludes that the economic 
impacts on small entities previously identified in the IRFA remain 
unchanged.
    The few commenters who directly addressed the conclusions of the 
IRFA did not disagree with the findings but stressed that they would be 
unfairly treated by portions of the rule. In particular, they opposed 
the use of the October 16, 1995, control date and the increased income 
requirement for obtaining commercial vessel permits because they would 
be excluded from the commercial fishery by those measures. (See 
Comments and Responses, above.) These effects were identified in the 
IRFA as bases for the conclusion of significant economic impacts on a 
substantial number of small entities. Because no public comments were 
received that disagreed with the analysis or conclusions of the IRFA 
and no additional information was received that would change the 
analysis or conclusions of the IRFA regarding the impacts on small 
entities, the FRFA is based on the IRFA without substantive change. 
Copies of the FRFA are available (see ADDRESSES). A summary of the FRFA 
follows.
    The approved management measures contained in Amendment 8 are 
necessary to assist in stock recovery, address gear problems, provide a 
more flexible and responsive regulatory system, address increasing 
numbers of participants in the fishery, and better utilize information 
on stock identification of migratory groups of king mackerel when the 
information becomes available.
    Amendment 8 will affect most of the approximately 3,906 vessels 
from Atlantic and Gulf states (1,714 and 2,192 vessels, respectively) 
that have permits to operate in the commercial and/or charter mackerel 
fisheries in the EEZ. No data are available that describe the precise 
average or range of vessel operating costs or annual gross revenues. 
However, all are considered to be small entities as defined by the 
Small Business Administration. Regarding changed or increased 
compliance costs related to reporting and recordkeeping, the proposed 
moratorium on commercial permits will allow transfer of permits with 
the vessel and these transfers will be subject to a fee of $40 to cover 
administrative costs. Further, increased costs may result from the need 
to obtain a special permit for conducting exempted fishing and to 
submit special reports pursuant to regulations contained in 50 CFR 
600.745(b) and from the need to convene a special assessment group, 
however, these costs have not been quantitatively estimated. The 
requirement for special buoys on certain gillnet gear will create a 
small level of compliance costs. The requirements that limit the types 
of commercial gear in the fishery to the specified gear types will have 
a compliance cost to the extent that some fishermen currently may be 
using non-conforming gear. Also, a small additional burden will be 
associated with providing fishery information for obtaining a new 
permit.
    Significant alternatives were identified for most of the actions 
proposed in Amendment 8. Maintaining the status quo in certain 
allowable gear would have resulted in no associated compliance cost 
increases. However, the status quo was rejected on the basis that the 
alternatives would provide more effective law enforcement. To counter 
potential negative effects of reducing innovation in gear types, a 
procedure is available to allow the use of approved experimental gear 
under special permit and reporting requirements. Alternatives were 
proposed for the increased income requirements to obtain a permit. The 
status quo would have less of an effect on small entities than the 
approved measure. The number of owners whose vessels would no longer be 
qualified for commercial mackerel permits is estimated at 57. This 
level of impact was deemed to be acceptable because it is perceived 
that most of the people potentially impacted are not dependent on the 
commercial mackerel fishery for their livelihood. The more restrictive 
alternatives were rejected because they would have demanded a larger 
dependence on fishing as a source of income and would have eliminated 
an unacceptably large number of historical commercial fishermen.
    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 a new collection-of-information requirement 
subject to the PRA--namely, the requirement that the float line of a 
gillnet used or possessed in the EEZ off Florida north of 25 deg.20.4' 
N. lat. be marked with distinctive floats bearing the official number 
of the vessel using or possessing the floats. This collection of 
information has been approved by OMB under OMB Control Number 0648-
0305. The public reporting burden for this new collection of 
information is estimated at 20 minutes per float. This rule involves 
the collection of information on applications for commercial vessel 
permits. That collection is currently approved under OMB Control No. 
0648-0205 and its public reporting burden is estimated at 20 minutes 
per response. This rule also involves the collection of information on 
fishing records of vessels permitted in the commercial king or Spanish 
mackerel fisheries. That collection is currently approved under OMB 
Control No. 0648-0016 and its public reporting burden is estimated at 
10 minutes per response. Finally, this

[[Page 10565]]

rule restates without significant change the collection of information 
for the marking of traps, pots, and associated buoys in the Caribbean, 
Gulf of Mexico, and South Atlantic EEZ. That collection is currently 
approved under OMB Control No. 0648-0305 and its public reporting 
burden is estimated at 7 minutes per trap, pot, or buoy. Send comments 
regarding these burden estimates or any other aspect of the data 
requirements, including suggestions for reducing the burden, to NMFS 
and to OMB (see ADDRESSES).
    As explained in the preamble to the proposed rule, the revised 
earned income requirement for a king or Spanish mackerel permit and the 
moratorium on commercial permits for king mackerel will be fully 
implemented on May 1, 1999. After that date, only those king or Spanish 
mackerel vessel permits that were issued under the revised earned 
income requirement and only those king mackerel permits that were 
issued under the moratorium criteria will be valid. This delayed 
implementation was specified so that the new criteria could be applied 
as existing annual permits expired, rather than requiring special 
applications, and so that currently valid permits would remain 
effective at least through the dates specified on the permits. As 
explained in the preamble to the proposed rule, a permit that is 
renewed after the date of publication of this final rule will be valid 
for the normal period, generally 1 year, if the revised criteria are 
met, and will be valid until the implementation date if the revised 
criteria are not met. The Assistant Administrator for Fisheries, NOAA, 
finds that the need to comply with this implementation schedule 
constitutes good cause under 5 U.S.C. 553(d) to waive the normal 30-day 
delay in effectiveness of the revisions to Sec. 622.4(a)(2)(iii) and 
(iv) and (q). To not waive the 30-day delay would be contrary to the 
public interest. The revisions in this final rule to other paragraphs 
of Sec. 622.4 are nonsubstantive clarifications for which delayed 
effectiveness is not required by 5 U.S.C. 553(d). Accordingly, all of 
the revisions to Sec. 622.4 are effective March 4, 1998.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: February 25, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 622 is amended 
as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

    1. The authority citation for part 622 continues to read as 
follows:

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

    2. In Sec. 622.1, footnote 2 to Table 1 is revised to read as 
follows:


Sec. 622.1  Purpose and scope.

* * * * *
    Table 1.--FMPs Implemented Under Part 622
    * * * * * * *
    2 Only king and Spanish mackerel and cobia are managed 
under the FMP in the Mid-Atlantic.
    * * * * * * *
    3. In Sec. 622.2, in the definition of ``Dealer'', the reference 
``Sec. 600.15'' is revised to read ``Sec. 600.10''; definitions of 
``Automatic reel'', ``Bandit gear'', ``Handline'', ``Hook-and-line 
gear'', ``Long gillnet'', ``Longline'', ``Rod and reel'', ``Stab net'', 
and ``Trammel net'' are added in alphabetical order; and the 
definitions of ``Charter vessel'', ``Drift gillnet'', and ``Run-around 
gillnet'' are revised to read as follows:


Sec. 622.2  Definitions.

* * * * *
    Automatic reel means a reel that remains attached to a vessel when 
in use from which a line and attached hook(s) are deployed. The line is 
payed out from and retrieved on the reel electrically or hydraulically.
    Bandit gear means a rod and reel that remain attached to a vessel 
when in use from which a line and attached hook(s) are deployed. The 
line is payed out from and retrieved on the reel manually, 
electrically, or hydraulically.
* * * * *
    Charter vessel means a vessel less than 100 gross tons (90.8 mt) 
that meets the requirements of the USCG to carry six or fewer 
passengers for hire and that engages in charter fishing at any time 
during the calendar year. A charter vessel with a commercial permit, as 
required under Sec. 622.4(a)(2), is considered to be operating as a 
charter vessel when it carries a passenger who pays a fee or when there 
are more than three persons aboard, including operator and crew.
* * * * *
    Drift gillnet, for the purposes of this part, means a gillnet, 
other than a long gillnet or a run-around gillnet, that is unattached 
to the ocean bottom, regardless of whether attached to a vessel.
* * * * *
    Handline means a line with attached hook(s) that is tended directly 
by hand.
* * * * *
    Hook-and-line gear means automatic reel, bandit gear, buoy gear, 
handline, longline, and rod and reel.
* * * * *
    Long gillnet means a gillnet that has a float line that is more 
than 1,000 yd (914 m) in length.
     Longline means a line that is deployed horizontally to which 
gangions and hooks are attached. A longline may be a bottom longline, 
i.e., designed for use on the bottom, or a pelagic longline, i.e., 
designed for use off the bottom. The longline hauler may be manually, 
electrically, or hydraulically operated.
* * * * *
    Rod and reel means a rod and reel unit that is not attached to a 
vessel, or, if attached, is readily removable, from which a line and 
attached hook(s) are deployed. The line is payed out from and retrieved 
on the reel manually, electrically, or hydraulically.
     Run-around gillnet means a gillnet, other than a long gillnet, 
that, when used, encloses an area of water.
* * * * *
    Stab net means a gillnet, other than a long gillnet, or trammel net 
whose weight line sinks to the bottom and submerges the float line.
* * * * *
    Trammel net means two or more panels of netting, suspended 
vertically in the water by a common float line and a common weight 
line, with one panel having a larger mesh size than the other(s), to 
entrap fish in a pocket of netting.
* * * * *
    4. Effective March 4, 1998, in Sec. 622.4, in paragraph (d), the 
reference ``Sec. 622.6(b)(1)(i)'' is revised to read 
``Sec. 622.6(b)(1)(i)(B)''; paragraphs (a)(2)(iv) through (vi) and (g) 
are revised; and paragraphs (a)(2)(iii) and (q) are added to read as 
follows:


Sec. 622.4  Permits and fees.

    (a) * * *
    (2) * * *
    (iii) King mackerel. For a person aboard a vessel to be eligible 
for exemption from the bag limits and to fish under a quota for king 
mackerel in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ, a 
commercial vessel

[[Page 10566]]

permit for king mackerel must have been issued to the vessel and must 
be on board. To obtain or renew a commercial vessel permit for king 
mackerel valid through April 30, 1999, at least 10 percent of the 
applicant's earned income must have been derived from commercial 
fishing (i.e., harvest and first sale of fish) during one of the 3 
calendar years preceding the application. To obtain or renew a 
commercial vessel permit for king mackerel valid after April 30, 1999, 
at least 25 percent of the applicant's earned income, or at least 
$10,000, must have been derived from commercial fishing (i.e., harvest 
and first sale of fish) or from charter fishing during one of the 3 
calendar years preceding the application. See paragraph (q) of this 
section regarding a moratorium on commercial vessel permits for king 
mackerel, initial permits under the moratorium, transfers of permits 
during the moratorium, and limited exceptions to the earned income or 
gross sales requirement for a permit.
    (iv) Spanish mackerel. For a person aboard a vessel to be eligible 
for exemption from the bag limits and to fish under a quota for Spanish 
mackerel in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ, a 
commercial vessel permit for Spanish mackerel must have been issued to 
the vessel and must be on board. To obtain or renew a commercial vessel 
permit for Spanish mackerel valid through April 30, 1999, at least 10 
percent of the applicant's earned income must have been derived from 
commercial fishing (i.e., harvest and first sale of fish) during one of 
the 3 calendar years preceding the application. To obtain or renew a 
commercial vessel permit for Spanish mackerel valid after April 30, 
1999, at least 25 percent of the applicant's earned income, or at least 
$10,000, must have been derived from commercial fishing (i.e., harvest 
and first sale of fish) or from charter fishing during one of the 3 
calendar years preceding the application.
    (v) Gulf reef fish. For a person aboard a vessel to be eligible for 
exemption from the bag limits, to fish under a quota, or to sell Gulf 
reef fish in or from the Gulf EEZ, a commercial vessel permit for Gulf 
reef fish must have been issued to the vessel and must be on board. To 
obtain or renew a commercial vessel permit for Gulf reef fish, more 
than 50 percent of the applicant's earned income must have been derived 
from commercial fishing (i.e., harvest and first sale of fish) or from 
charter fishing during either of the 2 calendar years preceding the 
application. See paragraph (m) of this section regarding a moratorium 
on commercial vessel permits for Gulf reef fish and limited exceptions 
to the earned income requirement for a permit.
    (vi) South Atlantic snapper-grouper. For a person aboard a vessel 
to be eligible for exemption from the bag limits for South Atlantic 
snapper-grouper in or from the South Atlantic EEZ, to engage in the 
directed fishery for tilefish in the South Atlantic EEZ, to use a 
longline to fish for South Atlantic snapper-grouper in the South 
Atlantic EEZ, or to use a sea bass pot in the South Atlantic EEZ 
between 35 deg.15.3' N. lat. (due east of Cape Hatteras Light, NC) and 
28 deg.35.1' N. lat. (due east of the NASA Vehicle Assembly Building, 
Cape Canaveral, FL), a commercial vessel permit for South Atlantic 
snapper-grouper must have been issued to the vessel and must be on 
board. A vessel with longline gear and more than 200 lb (90.7 kg) of 
tilefish on board is considered to be in the directed fishery for 
tilefish. It is a rebuttable presumption that a fishing vessel with 
more than 200 lb (90.7 kg) of tilefish on board harvested such tilefish 
in the EEZ. To obtain or renew a commercial vessel permit for South 
Atlantic snapper-grouper, more than 50 percent of the applicant's 
earned income must have been derived from commercial fishing (i.e., 
harvest and first sale of fish) or from charter fishing, or gross sales 
of fish harvested from the owner's, operator's, corporation's, or 
partnership's vessels must have been greater than $20,000, during one 
of the 3 calendar years preceding the application.
* * * * *
    (g) Transfer. A vessel permit or endorsement or dealer permit 
issued under this section is not transferable or assignable, except as 
provided in paragraph (m) of this section for a commercial vessel 
permit for Gulf reef fish, paragraph (n) of this section for a fish 
trap endorsement, paragraph (p) of this section for a red snapper 
endorsement, or paragraph (q) of this section for a king mackerel 
permit. A person who acquires a vessel or dealership who desires to 
conduct activities for which a permit or endorsement is required must 
apply for a permit or endorsement in accordance with the provisions of 
this section. If the acquired vessel or dealership is currently 
permitted, the application must be accompanied by the original permit 
and a copy of a signed bill of sale or equivalent acquisition papers.
* * * * *
    (q) Moratorium on commercial vessel permits for king mackerel. This 
paragraph (q) is effective through October 15, 2000.
    (1) Effective March 4, 1998, an initial commercial vessel permit 
for king mackerel will be issued only if the vessel owner was the owner 
of a vessel with a commercial vessel permit for king mackerel on or 
before October 16, 1995. A king mackerel permit for a vessel whose 
owner does not meet this moratorium criterion may be renewed only 
through April 30, 1999.
    (2) To obtain a commercial vessel permit for king mackerel under 
the moratorium, an owner or operator of a vessel that does not have a 
valid king mackerel permit on March 4, 1998, must submit an application 
to the RD postmarked or hand delivered not later than June 2, 1998. 
Other than applications for renewals of commercial vessel permits for 
king mackerel, no applications for commercial vessel permits for king 
mackerel will be accepted after June 2, 1998. Application forms are 
available from the RD.
    (3) An owner will not be issued initial commercial vessel permits 
for king mackerel under the moratorium in numbers exceeding the number 
of vessels permitted in the king mackerel fishery that he/she owned 
simultaneously on or before October 16, 1995. If a vessel with a 
commercial vessel permit for king mackerel on or before October 16, 
1995, has been sold since that date, the owner on or before that date 
retains the right to the commercial vessel permit for king mackerel 
unless there is a written agreement that such right transfers to the 
new owner.
    (4) An owner of a permitted vessel may transfer the commercial 
vessel permit for king mackerel issued under this moratorium to another 
vessel owned by the same entity.
    (5) An owner whose percentage of earned income or gross sales 
qualified him/her for the commercial vessel permit for king mackerel 
issued under the moratorium may request that NMFS transfer that permit 
to the owner of another vessel, or to the new owner when he or she 
transfers ownership of the permitted vessel. Such owner of another 
vessel, or new owner, may receive a commercial vessel permit for king 
mackerel for his or her vessel, and renew it through April 15 following 
the first full calendar year after obtaining it, without meeting the 
percentage of earned income or gross sales requirement of paragraph 
(a)(2)(iii) of this section. However, to further renew the commercial 
vessel permit, the owner of the other vessel, or new owner, must meet 
the earned income or gross sales requirement not later than the first 
full

[[Page 10567]]

calendar year after the permit transfer takes place.
    (6) An owner of a permitted vessel, the permit for which is based 
on an operator's earned income and, thus, is valid only when that 
person is the operator of the vessel, may request that NMFS transfer 
the permit to the income-qualifying operator when such operator becomes 
an owner of a vessel.
    (7) An owner of a permitted vessel, the permit for which is based 
on an operator's earned income and, thus, is valid only when that 
person is the operator of the vessel, may have the operator 
qualification on the permit removed, and renew it without such 
qualification through April 15 following the first full calendar year 
after removing it, without meeting the earned income or gross sales 
requirement of paragraph (a)(2)(iii) of this section. However, to 
further renew the commercial vessel permit, the owner must meet the 
earned income or gross sales requirement not later than the first full 
calendar year after the operator qualification is removed. To have an 
operator qualification removed from a permit, the owner must return the 
original permit to the RD with an application for the changed permit.
    (8) NMFS will not reissue a commercial vessel permit for king 
mackerel if the permit is revoked or if the RD does not receive an 
application for renewal within 1 year of the permit's expiration date.
    5. In Sec. 622.5, paragraph (a)(1)(i) is revised to read as 
follows:


Sec. 622.5  Recordkeeping and reporting.

* * * * *
    (a) * * *
    (1) * * *
    (i) Coastal migratory pelagic fish. The owner or operator of a 
vessel that fishes for or lands coastal migratory pelagic fish for sale 
in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ or adjoining 
state waters, or whose vessel is issued a commercial permit for king or 
Spanish mackerel, as required under Sec. 622.4(a)(2)(iii) or (iv), who 
is selected to report by the SRD, must maintain a fishing record on a 
form available from the SRD and must submit such record as specified in 
paragraph (a)(2) of this section.
* * * * *
    6. In Sec. 622.6, paragraphs (c) and (d) are removed and paragraph 
(b) is revised to read as follows:


622.6  Vessel and gear identification.

* * * * *
    (b) Gear identification--(1) Traps/pots and associated buoys--(i) 
Traps or pots--(A) Caribbean EEZ. A fish trap or spiny lobster trap 
used or possessed in the Caribbean EEZ must display the official number 
specified for the vessel by Puerto Rico or the U.S. Virgin Islands so 
as to be easily identified.
    (B) Gulf and South Atlantic EEZ. A fish trap used or possessed in 
the Gulf EEZ and a sea bass pot used or possessed in the South Atlantic 
EEZ between 35 deg.15.3' N. lat. (due east of Cape Hatteras Light, NC) 
and 28 deg.35.1' N. lat. (due east of the NASA Vehicle Assembly 
Building, Cape Canaveral, FL), or a fish trap or sea bass pot on board 
a vessel with a commercial permit for Gulf reef fish or South Atlantic 
snapper-grouper, must have a valid identification tag issued by the RD 
attached. A golden crab trap used or possessed in the South Atlantic 
EEZ or on board a vessel with a commercial permit for golden crab must 
have the commercial vessel permit number permanently affixed so as to 
be easily distinguished, located, and identified; an identification tag 
issued by the RD may be used for this purpose but is not required.
    (ii) Associated buoys. A buoy that is attached to a trap or pot 
must display the official number and assigned color code so as to be 
easily distinguished, located, and identified as follows:
    (A) Caribbean EEZ. Each buoy must display the official number and 
color code assigned to the vessel by Puerto Rico or the U.S. Virgin 
Islands, whichever is applicable.
    (B) Gulf and South Atlantic EEZ. Each buoy must display the 
official number and color code assigned by the RD. In the Gulf EEZ, a 
buoy must be attached to each trap, or each end trap if traps are 
connected by a line. In the South Atlantic EEZ, buoys are not required 
to be used, but, if used, each buoy must display the official number 
and color code. However, no color code is required on a buoy attached 
to a golden crab trap.
    (iii) Presumption of ownership. A Caribbean spiny lobster trap, a 
fish trap, a golden crab trap, or a sea bass pot in the EEZ will be 
presumed to be the property of the most recently documented owner. This 
presumption will not apply with respect to such traps and pots that are 
lost or sold if the owner reports the loss or sale within 15 days to 
the RD.
    (iv) Unmarked traps, pots, or buoys. An unmarked Caribbean spiny 
lobster trap, a fish trap, a golden crab trap, a sea bass pot, or a 
buoy deployed in the EEZ where such trap, pot, or buoy is required to 
be marked is illegal and may be disposed of in any appropriate manner 
by the Assistant Administrator or an authorized officer.
    (2) Gillnet buoys. On board a vessel with a valid Spanish mackerel 
permit that is fishing for Spanish mackerel in, or that possesses 
Spanish mackerel in or from, the South Atlantic EEZ off Florida north 
of 25 deg.20.4' N. lat., which is a line directly east from the Dade/
Monroe County, FL, boundary, the float line of each gillnet possessed, 
including any net in use, must have a maximum of nine distinctive 
floats, i.e., different from the usual net buoys, spaced uniformly at a 
distance of 100 yd (91.4 m) or less. Each such distinctive float must 
display the official number of the vessel.


Sec. 622.31  [Amended]

    7. In Sec. 622.31, paragraph (d) is removed and paragraphs (e) 
through (k) are redesignated as paragraphs (d) through (j) 
respectively.
    8. In Sec. 622.32, paragraph (c)(1) is revised to read as follows:


Sec. 622.32  Prohibited and limited-harvest species.

* * * * *
    (c) * * *
    (1) Cobia. No person may possess more than two cobia per day in or 
from the Gulf, Mid-Atlantic, or South Atlantic EEZ, regardless of the 
number of trips or duration of a trip.
* * * * *
    9. In Sec. 622.35, paragraph (e)(2)(i) is revised to read as 
follows:


Sec. 622.35  South Atlantic EEZ seasonal and/or area closures.

* * * * *
    (e) * * *
    (2) * * *
    (i) In SMZs specified in paragraphs (e)(1)(i) through (xviii) and 
(e)(1)(xxii) through (xxix) of this section, the use of a gillnet or a 
trawl is prohibited, and fishing may be conducted only with handline, 
rod and reel, and spearfishing gear.
* * * * *
    10. In Sec. 622.37, paragraph (c)(1) is revised to read as follows:


Sec. 622.37  Minimum sizes.

* * * * *
    (c) * * *
    (1) Cobia in the Gulf, Mid-Atlantic, or South Atlantic--33 inches 
(83.8 cm), fork length.
* * * * *
    11. In Sec. 622.38, paragraph (a) is revised and paragraph (h) is 
added to read as follows:


Sec. 622.38  Landing fish intact.

* * * * *
    (a) The following must be maintained with head and fins intact: 
Cobia, king

[[Page 10568]]

mackerel, and Spanish mackerel in or from the Gulf, Mid-Atlantic, or 
South Atlantic EEZ, except as specified for king mackerel in paragraph 
(h) of this section; South Atlantic snapper-grouper in or from the 
South Atlantic EEZ; yellowtail snapper in or from the Caribbean EEZ; 
and finfish in or from the Gulf EEZ, except as specified in paragraphs 
(c), (d), and (e) of this section. Such fish may be eviscerated, 
gilled, and scaled, but must otherwise be maintained in a whole 
condition.
* * * * *
    (h) A maximum of five cut-off (damaged) king mackerel may be 
possessed in the Gulf, Mid-Atlantic, or South Atlantic EEZ on, and 
offloaded ashore from, a vessel that is operating under a trip limit 
for king mackerel specified in Sec. 622.44(a). Such cut-off (damaged) 
king mackerel are not counted against the trip limit and may not be 
sold or purchased.
    12. In Sec. 622.40, the first sentence of paragraph (b)(3)(i) 
introductory text is revised to read as follows:


Sec. 622.40  Limitation on traps and pots.

* * * * *
    (b) * * *
    (3) * * *
    (i) A sea bass pot that is used or possessed in the South Atlantic 
EEZ between 35 deg.15.3' N. lat. (due east of Cape Hatteras Light, NC) 
and 28 deg.35.1' N. lat. (due east of the NASA Vehicle Assembly 
Building, Cape Canaveral, FL) is required to have on at least one side, 
excluding top and bottom, a panel or door with an opening equal to or 
larger than the interior end of the trap's throat (funnel). * * *
* * * * *
    13. In Sec. 622.41, paragraphs (c), (d)(1), and (d)(3) are revised 
to read as follows:


Sec. 622.41  Species-specific limitations.

* * * * *
    (c) Coastal migratory pelagic fish--(1) Authorized gear. Subject to 
the prohibitions on gear/methods specified in Sec. 622.31, the 
following are the only fishing gears that may be used in the Gulf, Mid-
Atlantic, and South Atlantic EEZ in directed fisheries for coastal 
migratory pelagic fish:
    (i) King mackerel, Atlantic migratory group--
    (A) North of 34 deg.37.3' N. lat., the latitude of Cape Lookout 
Light, NC--all gear except drift gillnet and long gillnet.
    (B) South of 34 deg.37.3' N. lat.--automatic reel, bandit gear, 
handline, and rod and reel.
    (ii) King mackerel, Gulf migratory group--hook-and-line gear and 
run-around gillnet.
    (iii) Spanish mackerel, Atlantic migratory group--automatic reel, 
bandit gear, handline, rod and reel, cast net, run-around gillnet, and 
stab net.
    (iv) Spanish mackerel, Gulf migratory group--all gear except drift 
gillnet, long gillnet, and purse seine.
    (v) Cobia in the Mid-Atlantic and South Atlantic EEZ, dolphin in 
the South Atlantic EEZ, and little tunny in the South Atlantic EEZ 
south of 34 deg.37.3' N. lat.--automatic reel, bandit gear, handline, 
rod and reel, and pelagic longline.
    (vi) Cero in the South Atlantic EEZ and little tunny in the South 
Atlantic EEZ north of 34 deg.37.3' N. lat.--all gear except drift 
gillnet and long gillnet.
    (vii) Bluefish, cero, cobia, dolphin, and little tunny in the Gulf 
EEZ--all gear except drift gillnet and long gillnet.
    (2) Unauthorized gear. Gear types other than those specified in 
paragraph (c)(1) of this section are unauthorized gear and the 
following possession limitations apply:
    (i) Long gillnets. A vessel with a long gillnet on board in, or 
that has fished on a trip in, the Gulf, Mid-Atlantic, or South Atlantic 
EEZ may not have on board on that trip a coastal migratory pelagic 
fish.
    (ii) Drift gillnets. A vessel with a drift gillnet on board in, or 
that has fished on a trip in, the Gulf EEZ may not have on board on 
that trip a coastal migratory pelagic fish.
    (iii) Other unauthorized gear. Except as specified in paragraph 
(c)(2)(iv) of this section, a person aboard a vessel with unauthorized 
gear other than a drift gillnet in the Gulf EEZ or a long gillnet on 
board in, or that has fished in, the EEZ where such gear is not 
authorized in paragraph (c)(1) of this section, is subject to the bag 
limit for king and Spanish mackerel specified in Sec. 622.39(c)(1)(ii) 
and to the limit on cobia specified in Sec. 622.32(c)(1).
    (iv) Exception for king mackerel in the Gulf EEZ. The provisions of 
this paragraph (c)(2)(iv) apply to king mackerel taken in the Gulf EEZ 
and to such king mackerel possessed in the Gulf. Paragraph (c)(2)(iii) 
of this section notwithstanding, a person aboard a vessel that has a 
valid commercial permit for king mackerel is not subject to the bag 
limit for king mackerel when the vessel has on board on a trip 
unauthorized gear other than a drift gillnet in the Gulf EEZ or a long 
gillnet. Thus, the following applies to a vessel that has a commercial 
permit for king mackerel:
    (A) Such vessel may use in the Gulf EEZ no unauthorized gear in a 
directed fishery for king mackerel.
    (B) If such a vessel has a drift gillnet or a long gillnet on 
board, no king mackerel may be possessed.
    (C) If such a vessel has unauthorized gear on board other than a 
drift gillnet in the Gulf EEZ or a long gillnet, the possession of king 
mackerel taken incidentally is restricted only by the closure 
provisions of Sec. 622.43(a)(3) and the trip limits specified in 
Sec. 622.44(a). See also paragraph (c)(4) of this section regarding the 
purse seine incidental catch allowance of king mackerel.
    (3) Gillnets--(i) King mackerel. The minimum allowable mesh size 
for a gillnet used to fish in the Gulf, Mid-Atlantic, or South Atlantic 
EEZ for king mackerel is 4.75 inches (12.1 cm), stretched mesh. A 
vessel in such EEZ, or having fished on a trip in such EEZ, with a 
gillnet on board that has a mesh size less than 4.75 (12.1 cm) inches, 
stretched mesh, may not possess on that trip an incidental catch of 
king mackerel that exceeds 10 percent, by number, of the total lawfully 
possessed Spanish mackerel on board.
    (ii) Spanish mackerel. (A) The minimum allowable mesh size for a 
gillnet used to fish in the Gulf, Mid-Atlantic, or South Atlantic EEZ 
for Spanish mackerel is 3.5 inches (8.9 cm), stretched mesh. A vessel 
in such EEZ, or having fished on a trip in such EEZ, with a gillnet on 
board that has a mesh size less than 3.5 inches (8.9 cm), stretched 
mesh, may not possess on that trip any Spanish mackerel.
    (B) On board a vessel with a valid Spanish mackerel permit that is 
fishing for Spanish mackerel in, or that possesses Spanish mackerel in 
or from, the South Atlantic EEZ off Florida north of 25 deg.20.4' N. 
lat., which is a line directly east from the Dade/Monroe County, FL, 
boundary--
    (1) No person may fish with, set, place in the water, or have on 
board a gillnet with a float line longer than 800 yd (732 m).
    (2) No person may fish with, set, or place in the water more than 
one gillnet at any one time.
    (3) No more than two gillnets, including any net in use, may be 
possessed at any one time; provided, however, that if two gillnets, 
including any net in use, are possessed at any one time, they must have 
stretched mesh sizes (as allowed under the regulations) that differ by 
at least .25 inch (.64 cm).
    (4) No person may soak a gillnet for more than 1 hour. The soak 
period begins when the first mesh is placed in the water and ends 
either when the first mesh is retrieved back on board the vessel or the 
gathering of the gillnet is begun to facilitate retrieval on board the 
vessel, whichever occurs first; providing

[[Page 10569]]

that, once the first mesh is retrieved or the gathering is begun, the 
retrieval is continuous until the gillnet is completely removed from 
the water.
    (5) The float line of each gillnet possessed, including any net in 
use, must have the distinctive floats specified in Sec. 622.6(b)(2).
    (4) Purse seine incidental catch allowance. A vessel in the EEZ, or 
having fished in the EEZ, with a purse seine on board will not be 
considered as fishing, or having fished, for king or Spanish mackerel 
in violation of a prohibition of purse seines under paragraph (c)(2) of 
this section, in violation of the possession limits under paragraph 
(c)(2)(iii) of this section, or, in the case of king mackerel from the 
Atlantic migratory group, in violation of a closure effected in 
accordance with Sec. 622.43(a), provided the king mackerel on board 
does not exceed 1 percent, or the Spanish mackerel on board does not 
exceed 10 percent, of all fish on board the vessel. Incidental catch 
will be calculated by number and/or weight of fish. Neither calculation 
may exceed the allowable percentage. Incidentally caught king or 
Spanish mackerel are counted toward the quotas provided for under 
Sec. 622.42(c) and are subject to the prohibition of sale under 
Sec. 622.43(a)(3)(iii).
    (d) * * *
    (1) Authorized gear. Subject to the gear restrictions specified in 
Sec. 622.31, the following are the only gear types authorized in a 
directed fishery for snapper-grouper in the South Atlantic EEZ: Bandit 
gear, bottom longline, buoy gear, handline, rod and reel, sea bass pot, 
and spearfishing gear.
* * * * *
    (3) Use of sink nets off North Carolina. A vessel that has on board 
a commercial permit for South Atlantic snapper-grouper, excluding 
wreckfish, that fishes in the EEZ off North Carolina on a trip with a 
sink net on board, may retain otherwise legal South Atlantic snapper-
grouper taken on that trip with bandit gear, buoy gear, handline, rod 
and reel, or sea bass pot. For the purpose of this paragraph (d)(3), a 
sink net is a gillnet with stretched mesh measurements of 3 to 4.75 
inches (7.6 to 12.1 cm) that is attached to the vessel when deployed.
* * * * *
    14. In Sec. 622.42, the first sentence of paragraph (c) 
introductory text is revised to read as follows:


Sec. 622.42  Quotas.

* * * * *
    (c) * * * King and Spanish mackerel quotas apply to persons who 
fish under commercial vessel permits for king or Spanish mackerel, as 
required under Sec. 622.4(a)(2)(iii) or (iv). * * *
* * * * *
    15. In Sec. 622.43, paragraph (a)(3)(i) and (ii) are revised and 
paragraph (c) is added to read as follows:


Sec. 622.43  Closures.

    (a) * * *
    (3) * * *
    (i) A person aboard a vessel for which a commercial permit for king 
or Spanish mackerel has been issued, as required under 
Sec. 622.4(a)(2)(iii) or (iv), may not fish for king or Spanish 
mackerel in the EEZ or retain king or Spanish mackerel in or from the 
EEZ under a bag or possession limit specified in Sec. 622.39(c) for the 
closed species, migratory group, zone, subzone, or gear, except as 
provided for under paragraph (a)(3)(ii) of this section.
    (ii) A person aboard a vessel for which the permit indicates both 
charter vessel/headboat for coastal migratory pelagic fish and 
commercial king or Spanish mackerel may continue to retain fish under a 
bag and possession limit specified in Sec. 622.39(c), provided the 
vessel is operating as a charter vessel or headboat.
* * * * *
    (c) Reopening. When a fishery has been closed based on a projection 
of the quota specified in Sec. 622.42 being reached and subsequent data 
indicate that the quota was not reached, the Assistant Administrator 
may file a notification to that effect with the Office of the Federal 
Register. Such notification may reopen the fishery to provide an 
opportunity for the quota to be reached.
    16. In Sec. 622.44, paragraph (a)(2)(ii)(B) introductory text is 
revised to read as follows:


Sec. 622.44  Commercial trip limits.

* * * * *
    (a) * * *
    (2) * * *
    (ii) * * *
    (B) Hook-and-line gear. In the Florida west coast subzone, king 
mackerel in or from the EEZ may be possessed on board or landed from a 
vessel with a commercial permit for king mackerel, as required by 
Sec. 622.4(a)(2)(iii), and operating under the hook-and-line gear quota 
in Sec. 622.42(c)(1)(i)(A)(2)(i):
* * * * *
    17. In Sec. 622.45, in paragraph (d)(2), the reference 
``Sec. 622.4(a)(2)(iv)'' is revised to read ``Sec. 622.4(a)(2)(vi)'' 
and paragraph (h) is added to read as follows:


Sec. 622.45  Restrictions on sale/purchase.

* * * * *
    (h) Cut-off (damaged) king mackerel. A cut-off (damaged) king 
mackerel lawfully possessed or offloaded ashore, as specified in 
Sec. 622.38(h), may not be sold or purchased.
    18. In Sec. 622.48, in paragraph (d)(1), the phrase ``reopening of 
a fishery prematurely closed'' is removed, and paragraph (c) is revised 
to read as follows:


Sec. 622.48  Adjustment of management measures.

* * * * *
    (c) Coastal migratory pelagic fish. For cobia or for a migratory 
group of king or Spanish mackerel: MSY, overfishing level, TAC, quota 
(including a quota of zero), bag limit (including a bag limit of zero), 
minimum size limit, vessel trip limits, closed seasons or areas, gear 
restrictions (ranging from regulation to complete prohibition), 
reallocation of the commercial/recreational allocation of Atlantic 
group Spanish mackerel, and permit requirements.
* * * * *


Secs. 622.4 and 622.44  [Amended]

    19. The words ``and Spanish'' are removed in the following places:
    a. In Sec. 622.4, in the first sentence of paragraph (a)(2)(ii), in 
the heading of paragraph (o), in the first sentence of paragraph 
(o)(1), and in the second and third sentences of paragraph (o)(2).
    b. In Sec. 622.44, in paragraph (a)(2)(ii)(A)(2)(i).


Sec. 622.44  [Amended]

    20. The words ``king and'' are removed in Sec. 622.44(b)(1)(i) and 
(b)(1)(ii) introductory text.
[FR Doc. 98-5476 Filed 3-3-98; 8:45 am]
BILLING CODE 3510-22-F