[Federal Register Volume 64, Number 17 (Wednesday, January 27, 1999)]
[Rules and Regulations]
[Pages 4030-4044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1766]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 600

[Docket No. 980519132-9004-02; I.D. 022498F]
RIN 0648-AK49


Magnuson-Stevens Act Provisions; List of Fisheries and Gear, and 
Notification Guidelines

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


[[Page 4031]]


ACTION: Final rule.

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SUMMARY: NMFS issues this final rule that establishes a list of 
fisheries and fishing gear used in those fisheries under the authority 
of each regional fishery management council (Council), or under 
authority of the Secretary of Commerce (Secretary) with respect to 
Atlantic highly migratory species (HMS). Effective 180 days after the 
date of publication of this list, no person or vessel may employ 
fishing gear or participate in a fishery not included in this list 
without giving 90 days advance notice to the appropriate Council or the 
Secretary with respect to Atlantic HMS. This final rule also 
establishes a process for giving such notification to the appropriate 
Council or to the Secretary. NMFS also issues guidelines for 
determining when a fishing gear or a fishery is sufficiently different 
from those listed to require notification to the appropriate authority. 
The list of fisheries and gear and the guidelines apply only to 
fisheries and gear that occur within the U.S. exclusive economic zone 
(EEZ). The list, notice requirements, and guidelines contained in this 
final rule are required by the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act).

DATES: This rule is effective February 26, 1999, except that 
Sec. 600.725(v) is effective July 26, 1999.

ADDRESSES: Copies of the regulatory impact review for this action can 
be obtained from Dr. Gary C. Matlock, Director, Office of Sustainable 
Fisheries, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. 
Comments regarding the collection-of-information requirement contained 
in this rule should be sent to the above address 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 Millikin, NMFS, (301) 713-2344.

SUPPLEMENTARY INFORMATION:

Background

    This rulemaking is required by the Magnuson-Stevens Act (16 U.S.C. 
1801 et seq.), as amended by the Sustainable Fisheries Act, which was 
signed into law on October 11, 1996. Section 305(a) of the Magnuson-
Stevens Act requires that the Secretary publish in the Federal 
Register, after notice and an opportunity for public comment, a list of 
fisheries under the authority of each Council and all fishing gear used 
in such fisheries. A fish whether targeted or not, may be retained only 
if it is taken within a listed fishery, is taken with a gear authorized 
for that fishery, and is taken in conformance with all other applicable 
regulations. This list is based on information submitted by the 
Councils and by the Director, Office of Sustainable Fisheries, NMFS 
(Director), in the case of Atlantic HMS. The Magnuson-Stevens Act 
requires the issuance of guidelines for determining when a fishing gear 
or a fishery is sufficiently different from those listed as to require 
fishermen or other individuals to notify a Council or the Secretary 
under Sec. 305(a)(3).
    A proposed rule for this action was published in the Federal 
Register on June 4, 1998 (63 FR 30455), requesting comments through 
July 6, 1998. The preamble of the proposed rule contained some 
background information for this rulemaking that has not changed so it 
is not repeated here. That information includes: (1) How information 
for the list of fisheries and gear was collected, (2) prohibitions on 
use of unlisted gear, and (3) procedures for notification of new gear 
or fisheries. Background information from the proposed rule that has 
been modified is included again in the preamble of this final rule. 
That information includes: (1) Gear names and definitions related to 
the issue of deployment, (2) the relationship of the rule to other 
Federal regulations, and (3) procedures after receiving notification 
for other than Atlantic HMS. The portion of the preamble containing the 
procedures after receiving notification for species other than Atlantic 
HMS is repeated for the convenience of the public. List of Fisheries 
and Gear
    The list of gear, wherever possible, avoids gear names that also 
imply a method of deployment. This explains the absence of ``gear'' 
such as pelagic longline, pelagic trawl, bottom trawl, otter trawl, or 
drift gillnet in the list. For example, ``bottom trawl'' and ``pelagic 
trawl'' are considered deployment methods for trawl gear, rather than 
gear types. Terms such as ``pelagic,'' ``bottom,'' and ``drift'' are 
modifiers that describe where in the water column the specific gear 
type is used. It is noteworthy however, that in the proposed rule, 
``hand harvest'' was included in the list only under fisheries where it 
was the only allowed method of harvest--the Caribbean Queen Conch FMP 
and the Coral Reef FMPs in the South Atlantic and the Gulf of Mexico. 
In response to public comments, in this final rule, ``hand harvest'' is 
added as an allowable gear type to various mollusk and crustacean 
fisheries that commenters felt should also have ``hand harvest'' 
included as an allowable gear.

Relationship of This Rule to Other Federal Fishery Regulations

    Beyond this rule, fisheries and associated gear continue to be 
managed by implementing regulations in 50 CFR chapter VI for the 
various FMPs under authority of the Councils and the Secretary. FMPs 
often address issues about gear such as structure, size, shape, 
material, deployment, seasonality of allowed use, prohibitions, or 
other features of gear and its use. Therefore, the list of fisheries 
and allowable gear contained in this final rule is not intended to 
alter or supersede other regulations related to fisheries and gear.
    It is NMFS' intent that this final rule will not affect 
experimental fisheries conducted for a year or less elsewhere under 50 
CFR chapter VI.
    NMFS is not aware of any Treaty Indian tribe or subsistence 
fisheries in the EEZ other than those listed in Sec. 600.725(v). This 
action is not intended to supersede or otherwise affect exemptions that 
exist for fisheries or Native American harvest under Treaty Indian 
fisheries. In the proposed rule (63 FR 30455; June 4, 1998), NMFS 
announced that it was particularly interested in receiving public 
comment on this topic, but received none.

Procedures After Receiving Notification

Species Other Than Atlantic HMS

    After receiving notification regarding intended participation in an 
unlisted fishery or use of unlisted gear, a Council will begin 
consideration of the notification and immediately send a copy of the 
notification to the appropriate NMFS Regional Administrator (RA). If, 
after consideration of the notification and accompanying information, a 
Council finds that the new gear or fishery would not compromise the 
effectiveness of conservation and management efforts under the 
Magnuson-Stevens Act, the Council will recommend to the RA that the 
authorized list of fisheries and gear be amended, provide rationale and 
supporting analysis, and provide a draft proposed rule to amend the 
authorized list of fisheries and gear for publication in the Federal 
Register. If the Council finds that the proposed new gear or fishery 
will be detrimental to conservation and management efforts, the Council 
will recommend to the RA that the authorized list of fisheries and gear 
not be amended and that a proposed rule not be published, give reasons 
for its recommendation, and may request NMFS to issue emergency or 
interim regulations and begin preparation of an FMP or amendment to an 
FMP, if appropriate. Some examples

[[Page 4032]]

of how a new gear or fishery could be judged as ``compromising the 
effectiveness of conservation and management efforts'' would be if: (1) 
Fish stock rebuilding objectives would be seriously affected, (2) 
essential fish habitat would be severely impacted, (3) bycatch problems 
in the fishery would be further exacerbated, or (4) severe conflicts 
would result with existing gear or fisheries. This listing of examples 
of factors that would compromise the effectiveness of conservation and 
management efforts is not intended to be all-inclusive. The Councils 
and NMFS will need to consider each request on a case-by-case basis. 
Based on the information provided in the notification and by the 
Council, NMFS will make the final determination whether the new gear or 
fishery would compromise the effectiveness of conservation and 
management efforts under the Magnuson-Stevens Act and whether to 
publish a proposed rule to amend the list of fisheries and gear.
    If the initial determination is positive, NMFS will publish the 
proposed rule, with a 30-day comment period. Following the end of the 
comment period, NMFS will either approve or disapprove the change to 
the list, based on the potential impacts on the effectiveness of 
conservation and management efforts. If approved, NMFS will publish a 
final rule revising the list, and notify the applicant of the final 
approval. If the use of the gear or participation in a fishery is 
determined to be detrimental to conservation and management efforts 
under the Magnuson-Stevens Act, the proposed addition to the list will 
be disapproved, NMFS will notify the applicant and the appropriate 
Council of the negative determination and the reasons for the 
determination, and may publish emergency or interim regulations in the 
Federal Register to prohibit or restrict the use of the unlisted gear 
or fishing in the unlisted fishery. Upon notification by NMFS that the 
proposed revision has been disapproved, the Council should begin 
preparation of an FMP or amendment to an FMP in order to provide 
permanent regulations relative to that gear type or fishery.
    If the initial determination by NMFS is negative, because use of 
the gear or participation in the fishery is likely to compromise 
conservation and management efforts under the Magnuson-Stevens Act, and 
it is unlikely that additional new information would be gained from a 
public comment period, then NMFS will notify the applicant and the 
Council of the negative determination and the reasons for that 
determination, and may publish emergency or interim regulations in the 
Federal Register to prohibit or restrict the use of the unlisted gear 
or fishing in the unlisted fishery. The Council should then begin 
preparation of an FMP or an amendment to an FMP to provide permanent 
regulations relative to that gear type or fishery.

Atlantic HMS

    Notification of intent to use an unlisted gear or to participate in 
an unlisted fishery for Atlantic HMS should be addressed to the 
Director. After receiving such notification, NMFS would collect 
relevant information (including any information/data collected from the 
experimental fishing permit (EFP) program) and use the advisory panel 
process. A determination will be made whether the new gear or new 
fishery would compromise the effectiveness of conservation and 
management programs and whether to publish a proposed rule to amend the 
list of gear and fisheries. The EFP program allows NMFS to collect data 
such as catch rates of target and non-target finfish and protected 
species bycatch.
    If the determination is positive, a proposed rule to amend the list 
of gear and fisheries will be published in the Federal Register for 
public comment. Following the end of the public comment period, NMFS 
will consider comments or new information received relative to the 
effect of the new gear or fishery on conservation and management 
programs, and will either approve or disapprove the proposed amendment. 
If approved, the applicant will be notified, and a final rule will be 
published amending the list of fisheries and gear. If, after receiving 
public comment, NMFS disapproves the proposed amendment, the applicant 
will be notified of the disapproval, including reasons for the 
disapproval, and NMFS may publish emergency or interim regulations and 
subsequently develop or amend the FMP to prohibit or restrict the use 
of the unlisted gear or participation in the unlisted fishery.
    If the initial determination is negative, NMFS will notify the 
applicant, including the reasons for the disapproval, and may publish 
emergency or interim regulations and subsequently develop or amend an 
FMP to prohibit or restrict the use of the unlisted gear or 
participation in the unlisted fishery.

Comments and Responses

    Seventeen sets of comments were received regarding the list of gear 
by fisheries and the notification procedures from various individuals 
and organizations.
    Comment 1: Historically, if a fishery has not been addressed 
through the FMP process, the regulations of adjacent states have taken 
precedence. This has allowed the various states the ability to manage 
those fisheries under regulations that are consistent with the 
regulations in their own waters. Many fisheries that are prosecuted 
mainly in state waters which may occasionally intrude into Federal 
waters. An example from Louisiana is the oyster fishery, which 
occasionally harvests from Federal waters. Establishment of a set of 
Federal rules of allowable gears and fisheries would seem to have far-
reaching implications in this type of situation. The fishery might be 
in violation in Federal waters, though completely legal in the adjacent 
state waters, where the majority of the resource resides. 
Alternatively, the fishery might be found to be under Federal 
management, and the brief list of gears would be the only regulations 
on the fishery, undermining the effectiveness of state regulations.
    Response: The list of fisheries and gear contained in this final 
rule is required by the Magnuson-Stevens Act. NMFS has attempted to 
compile a list that includes all existing gear and fisheries in the EEZ 
(i.e., within the jurisdiction of the fishery management councils), 
unless otherwise prohibited. The lack of a gear or fishery in the list 
does not preclude the use of a gear or occurrence of a fishery in state 
waters. Under procedures established in this rulemaking, an individual 
interested in using a new gear or participating in a fishery in the EEZ 
not already listed may notify the appropriate fishery management 
council or the Director as described in Sec. 600.747.
    Comment 2: The proposed definition for ``dredge'' could either 
include wing nets or include oyster dredges with mesh bags, depending 
on how it is read. Also, it does not include suction dredges that may 
be used in some areas for clam harvest.
    Response: The definition of ``dredge'' was structured to include 
all types of dredges currently used in the EEZ. The definition has been 
modified in this final rule to include suction dredges.
    Comment 3: The proposed definition of ``hoop net'' is too vague. 
Too many gears could fall under that definition; instead use the 
following: ``A cone-shaped net of vegetable or synthetic materials 
having throats or flues and which are stretched over a series of rings 
or hoops to support the webbing.''
    Response: The definition for ``hoop net'' has been changed in the 
final rule

[[Page 4033]]

to be consistent with the suggestion by the commenter.
    Comment 4: The proposed definitions for ``lampara net'' and purse 
seine'' are functionally very similar. They should be either combined 
into a single definition, or more clearly distinguished.
    Response: The definitions have been modified to more clearly 
distinguish them in this final rule.
    Comment 5: For the ``Gulf of Mexico Shrimp'' and ``Recreational 
Shrimp Fishery,'' under the Gulf of Mexico Fishery Management Council, 
butterfly net, skimmer, cast net, and dip net gear should be added. 
These gears are typically used only in state waters, but may possibly 
be used in Federal waters.
    Response: Except for dip nets, these gears are not normally used in 
the EEZ, and have not been added to the list of fisheries and gear in 
this final rule.
    Comment 6: For the ``Recreational Fishery (non-FMP),'' cast net, 
hoop net, tong (for oyster), pipes, drums, cans, buckets, and tires, 
yo-yo or trigger devices, trotline, bow and arrow, barbless spear (for 
flounder) and spear (for garfish) should be added.
    Response: NMFS believes that all these gears except for hoop nets 
are for inshore use only, and has not added them to allowable gear for 
this fishery in this final rule.
    Comment 7: The fishery, ``Non-groundfish Finfish (non-FMP),'' 
should be added for species such as black drum, sheepshead, flounder, 
and bluefish, and minor species such as cutlassfish and anchovies, that 
might be taken incidentally through gears such as trawl, gillnet, 
longline, handline, rod and reel, bandit gear, and many others. This 
relates to the issue that the list of fisheries in this rule applies to 
fisheries presently under state jurisdiction.
    Response: NMFS agrees that this fishery and associated gear occur 
in the EEZ, and has added them to the list of fisheries and gear in 
this final rule.
    Comment 8: Several commenters felt that the proposed rule 
misinterpreted the intent and language of section 305 of the Magnuson-
Stevens Act, which established requirements for notifying the Councils 
before a new gear or fishery is introduced. It does not establish a 
system to identify gear as ``allowable.'' The proposed rule refers to 
gears on the list as ``allowable,'' implying that gear not on the list 
is ``not allowed.'' This is an inaccurate interpretation.
    Response: Section 305(a)(3) of the Magnuson-Stevens Act states: 
``Effective 180 days after publication of such list, no person or 
vessel may employ fishing gear or engage in a fishery not included in 
such list * * *.'' NMFS believes, therefore, that its interpretation is 
correct in referring to gear in the list as ``allowable gear.''
    Comment 9: One commenter stated that the proposed rule may 
misinterpret the language of the Magnuson-Stevens Act by giving the 
Secretary discretion to reject additions to the list recommended by the 
Council and to make changes not recommended by the Council. The statute 
does not give authority to the Secretary to make changes to the list, 
absent a recommendation by a Council. Section 305(a)(4) clearly states 
that the Secretary ``shall publish a revised list'' (emphasis added) 
after receiving any change the Council ``deems appropriate.'' The 
commenter's interpretation of this language is that the Secretary must 
publish a proposed rule for public comment when a Council suggests a 
change to the list. If the Secretary does not have to publish a 
proposed rule, the public will not have an opportunity to counter an 
adverse determination by NMFS--and may not even know such a 
determination is being considered. The language in the proposed rule 
only makes sense if the list is interpreted as a list of ``allowed'' 
fisheries. The commenter does not believe this is the correct 
interpretation.
    Response: While the Secretary and NMFS value the opinions, advice, 
and recommendations made by the Councils, the decision on implementing 
a regulatory action and issuing a rulemaking under the Magnuson-Stevens 
Act rests with the Secretary. An interpretation that the Secretary must 
implement whatever a Council recommends would run afoul of the 
Appointments Clause of the Constitution.
    Comment 10: One commenter suggested that the list for gear and 
fisheries be based on permit category, rather than geographic area; 
this may shorten the list and would clearly identify allowed gear 
types. The commenter also recommended that the gear designations be 
more specific so fishermen can clearly understand what gear is allowed.
    Response: The gear by fisheries is listed by geographic area 
because Sec. 305(a)(1) of the Magnuson-Stevens Act focuses on the list 
of all fisheries under the authority of each Council, irrespective of 
whether permits exist for a given fishery. More general definitions 
were chosen for the list of gear by fisheries, to meet the requirements 
of this provision while maintaining simplicity and flexibility in its 
implementation. More specific descriptions and regulations to prohibit 
or otherwise restrict the gear in question can be found elsewhere in 50 
CFR part 600.
    Comment 11: The regulation may leave the industry vulnerable to 
inaction by the Councils. While new gear may be used after the 90-day 
advance notice period, there is no requirement for the Councils to act 
within that time frame, so the fishermen may not know when the Council 
will reply. This will inhibit investment of time and money in 
technological improvements. Therefore, the commenter recommended that, 
after a specific time period (180 days or less), new gear and fisheries 
should be added to the list unless the Council has notified the 
fishermen that it will not recommend the addition.
    Response: Unless specifically prohibited by rulemaking, the 
individual who has served notice may use a new gear in an existing 
fishery or may participate in a new fishery after the 90-day waiting 
period. NMFS will endeavor to process the request within the 90-day 
period.
    Comment 12: The proposed rule should have consistently applied the 
policy stated in the Supplementary Information section that ``while 
gear types are included on the list, methods of gear deployment were 
not.'' The example used is that ``jig'' and ``troll'' are not listed as 
gear because they are just methods of using hook-and-line gear, yet 
definitions are added for buoy gear and longline (methods of deploying 
hook-and-line gear) and pair trawl (a method for deploying a trawl 
net).
    Response: Gear types differentiated by deployment are not included 
unless absolutely necessary. For example, ``pair trawl'' is no longer 
listed separately, but is included in the definition for ``trawl.'' In 
a few instances, however, the method of deployment had to be included 
for gear that is significantly different than others in the category 
and for clarity in the description of the gear in question.
    Comment 13: The proposed rule creates a ``Catch 22'' for the 
Councils and industry. Fishermen would be required to advise the 
Council only if a new gear or fishery is not on the list. The proposed 
rule uses broad definitions, to avoid the problem of trying to describe 
the countless gears and fisheries in use. These definitions are so 
broad that almost any new gear or fishery may fit under the definitions 
and the proposed rule will serve little useful purpose. An example is 
the Mid-Atlantic Fishery Management Council non-FMP ``mixed trawl 
fishery'--any trawl for any species not covered by an FMP would fit 
this listing.
    Response: The general wording for definitions of gear was 
purposefully used to provide flexibility for fishermen

[[Page 4034]]

and in an attempt to make the authorized list of fisheries and gear 
easy to refer to and understand. NMFS believes that variations of 
existing gear would not generally constitute a different gear. NMFS is 
trying to achieve a middle ground that would implement a process that 
is not overly burdensome to the fishermen and the Councils. At the same 
time, significantly new gear or fisheries should fall under the 
procedures of this rule. In any event, the Councils have the authority 
to regulate gear (e.g., size, shape, materials, deployment, seasons, 
areas) and fisheries (e.g., areas, seasons) more specifically if there 
is an identified reason to do so.
    Comment 14: The New England Fishery Management Council is not 
submitting a list of fisheries or gear that are not included in the 
proposed rule. It expressed concern that the creation of such a list 
could easily overlook a gear or fishery, unfairly placing a 
notification burden on that fishery. The inconsistent structure of the 
list makes such a mistake probable. Therefore, it recommended that all 
gear types be listed for every fishery unless specifically prohibited 
by existing regulations.
    Response: This rule satisfies the requirements of Sec. 305(a) of 
Magnuson-Stevens Act (i.e., to compile a list of fisheries and gear in 
use in the EEZ, categorized by Council, and of NMFS, in the case of 
Atlantic HMS). All allowable gear and fisheries known to NMFS have been 
listed.
    Comment 15: There should not be any exception to the full 90-day 
waiting period before using a new gear or participating in a new 
fishery. This is the minimum period necessary for the Councils to have 
an opportunity to review and decide on a proposed addition to the list. 
Any shorter period would not provide adequate time for careful review 
of the conservation impacts of a new gear or fishery.
    Response: The provisions of Sec. 305(a) of the Magnuson-Stevens Act 
do not prohibit the Secretary from amending the list of gear and 
fisheries within the 90-day notification period. NMFS will try to 
expeditiously process the notification while meeting all the 
requirements of this section.
    Comment 16: The rule has not been published according to the 
timeline set by the SFA.
    Response: NMFS made every effort to comply with the statutory 
deadlines of the SFA. However, the complexity of the proposed rule and 
the importance of the contents to the public required diligence and 
deliberation.
    Comment 17: One commenter asked for listing electric jigging 
machines, bandit gear, and trolling green sticks as fishing gear used 
in various Atlantic HMS (tunas, swordfish, and mahi mahi) fisheries. 
The commenter noted that these gear types are all currently being used 
in these fisheries, partly due to the concerns over the future of 
pelagic longlining.
    Response: NMFS recognizes that various gear may be used to enhance 
productivity of these fisheries. Bandit gear is currently authorized in 
the Atlantic tunas fishery and as a bycatch gear type in the swordfish 
fishery (two fish per trip). Green sticks are allowed for Atlantic 
tunas, if the vessel is carrying a General category permit. Jigging 
machines are not authorized for Atlantic tunas nor for Atlantic 
swordfish, although they could be allowed a two swordfish per trip 
bycatch allowance if used to target other species.

Changes From the Proposed Rule

    Section 600.725(v) in the proposed rule has been revised to 
indicate that the list of fisheries and gear in that paragraph is 
intended to include allowable gear for harvest and retention of a fish, 
whether that fish is targeted or not. If the list of gear applied only 
to fish that were targeted, it would be extremely difficult to 
determine whether a fish caught and retained was legally taken under 
provisions of this rule. The intent of this rule is that fish in a 
listed fishery should not be allowed to be retained if caught with gear 
other than that listed under that fishery to protect the resources from 
development of uncontrolled fisheries or introduction of potentially 
harmful gear.
    Section 600.746 in the proposed rule has been changed to 
Sec. 600.747 in this final rule because a new Sec. 600.746 was added by 
a final rule for an unrelated action published on May 18, 1998 (63 FR 
27217), effective on June 17, 1998. Similarly, Sec. 600.725(q) in the 
proposed rule is changed to Sec. 600.725(v) in this final rule because 
paragraphs (q), (r), (s), (t), and (u) were added to this section in 
the same final rule (63 FR 27217, May 18, 1998) mentioned above.
    Because of comments received from various Councils and NMFS 
Regional Offices, this final rule contains definitions for ``Cast 
net,'' ``Hand harvest,'' ``Hook-and-line,'' ``Pot,'' and 
``Submersible'' that were not defined in Sec. 600.10 of the proposed 
rule. The definitions for ``Allowable chemical,'' ``Barrier net,'' 
``Dredge,'' ``Hoop net,'' and ``Lampara net'' have been changed in the 
final rule.
    In the table of the list of authorized fisheries and gear in 
Sec. 600.725(v), the following changes have been made in accordance 
with comments received from various Councils, NMFS Regional Offices, 
state agencies, and members of the public:
    1. Under the heading ``New England Fishery Management Council,'' 
the following changes have been made:
    a. ``Hand harvest'' and ``recreational fisheries'' have been added 
to the Atlantic Sea Scallops Fishery FMP.
    b. ``Rod and reel'' has been added to the groundfish hook and line 
fishery for the Northeast Multispecies Fishery FMP.
    c. For the American Lobster Fishery FMP, the ``hand harvest 
fishery'' has been added and ``hand harvest'' has also been added to 
the gear for the recreational fishery.
    d. The Striped Bass Fishery (non-FMP), the Surf Clam and Ocean 
Quahog Fishery FMP, and the Hagfish Fishery (non-FMP) have been added.
    e. For the Atlantic Halibut Fishery (non-FMP), ``handline,'' 
``gillnet,'' and ``trawl'' have been added as allowable gear.
    f. ``Hand harvest fishery'' has been added to the Atlantic Mussel/
Sea Urchin Fishery (non-FMP),
    g. ``Hook and line'' has been added to the Atlantic Skate Fishery 
(non-FMP).
    h. The ``demersal longline fishery,'' ``dredge fishery,'' and 
``trap/pot fishery'' have been added to the Monkfish Fishery (non-FMP).
    2. Under the heading ``Mid-Atlantic Fishery Management Council'' 
the following changes have been made:
    a. The ``striped bass fishery (non-FMP)'' has been added.
    b. The ``bandit gear fishery'' has been added to the Atlantic 
Mackerel, Squid, and Butterfish Fishery FMP.
    c. The ``Surf Clam/Ocean Quahog Fishery (FMP)'' has been divided 
into a ``dredge fishery'' and a ``recreational fishery.''
    d. The ``hand harvest fishery'' has been added to the ``Atlantic 
Sea Scallop Fishery FMP'' and the ``American Lobster Fishery FMP.''
    e. The ``demersal longline fishery'' has been added to the monkfish 
fishery (non-FMP).
    f. The tilefish fishery (non-FMP) and the dogfish fishery (non-FMP) 
have been added along with associated fisheries and allowable gear 
types.
    3. Under the heading, ``South Atlantic Fishery Management 
Council,'' ``powerhead'' has been added as an allowable gear to the 
commercial fishery of the South Atlantic Snapper-Grouper Fishery FMP, 
and the ``sargassum fishery'' and its accompanying gear (trawl) has 
been added.

[[Page 4035]]

    4. Under the heading, ``Gulf of Mexico Fishery Management 
Council,'' the following changes have been made:
    a. A new category has been added, ``oyster fishery (non-FMP)'' with 
associated gear.
    b. The ``Gulf of Mexico shrimp trawl fishery'' has been changed to 
the ``Gulf of Mexico commercial shrimp fishery'' and several gear types 
other than ``trawl'' have been added.
    c. ``Non-groundfish finfish (non-FMP)'' and associated gear have 
been added to address possible harvest of species such as black drum, 
sheepshead, flounder, bluefish, cutlassfish, and anchovies.
    5. Under the heading, ``Caribbean Fishery Management Council,'' the 
``hand harvest fishery'' has been added to the ``Caribbean Spiny 
Lobster FMP'' and ``rod and reel'' has been added as a gear for the 
``recreational fishery for Caribbean pelagics (non-FMP).''
    6. Under the heading, ``Pacific Fishery Management Council,'' the 
following changes have been made:
    a. The ``Pacific halibut fishery'' has been properly labeled as a 
``non-FMP,'' and subdivided into the ``longline/setline fishery'' and 
``hook-and-line fishery.''
    b. The ``California halibut trawl'' and ``trammel net fishery'' 
have been added.
    c. ``Jack mackerel'' has been added to the ``Pacific sardine, 
Pacific mackerel, Pacific saury, Pacific bonito, Jack mackerel purse 
seine fishery.''
    7. Under the heading, ``North Pacific Fishery Management Council,'' 
the following changes have been made:
    a. ``Diving gear'' has been added to the ``Alaska Scallop Fishery 
FMP.''
    b. The ``Gulf of Alaska Groundfish Fishery FMP'' with associated 
fisheries and gear has been added.
    8. Under the heading, ``Western Pacific Fishery Management 
Council,'' the following changes have been made:
    a. The following new categories have been added along with 
associated fisheries and gear: ``western Pacific crustacean (non-
FMP),'' ``western Pacific precious corals (non-FMP),'' ``western 
Pacific pelagics (non-FMP),'' ``western Pacific coastal pelagics (non-
FMP),'' ``western Pacific squid/octopus (non-FMP),'' and ``western 
Pacific shallow reef (non-FMP).''
    b. The ``gillnet fishery (non-FMP)'' and the ``recreational fishery 
(non-FMP)'' have been deleted.
    c. Under the ``Western Pacific Bottomfish Fishery FMP,'' the 
``bottomfish handline fishery,'' has been deleted, and the 
``recreational fishery'' has been moved to a new category, ``the 
``western Pacific bottomfish fishery (non-FMP).''
    d. Under the ``Western Pacific Pelagics FMP,'' the dip net/hoop net 
fishery'' and ``pole and line fishery'' have been deleted. Also, under 
the same FMP, the more specifically named fisheries, ``tuna handline/
hook and line,'' and ``swordfish, tuna, billfish, mahi mahi, wahoo, 
shark longline/setline fishery'' have been replaced by the more general 
headings, ``hook and line fishery'' and ``longline fishery.''
    9. Under the heading, ``Secretary of Commerce,'' the following 
changes have been made:
    a. ``Harpoon fishery'' is removed from the ``Atlantic Sharks FMP'' 
and from the ``Atlantic Billfish FMP.''
    b. ``Bandit gear'' and ``harpoon'' have been removed from the gear 
listed for the ``recreational fishery'' for the ``Atlantic tunas (non-
FMP).''
    c. ``Bandit gear'' has been added to the gear in the ``hook and 
line fishery'' under the ``Atlantic Swordfish FMP.''
    d. ``Bandit gear'' and ``handline'' have been removed from the 
``hook and line fishery'' for the ``Atlantic Billfish FMP.''
    NOAA codifies its OMB control numbers for information collection at 
15 CFR part 902. Part 902 collects and displays the control numbers 
assigned to information collection requirements of NOAA by OMB pursuant 
to the Paperwork Reduction Act (PRA). This final rule codifies OMB 
control number 0648-0346 for 50 CFR 600.725 and 600.747.
    Under NOAA Administrative Order 205-11, 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

    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    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 when this rule was proposed, that, if 
adopted, it would not have a significant impact on a substantial number 
of small entities. This action does not change the analyses already 
completed nor the conclusions made under the Regulatory Flexibility Act 
(RFA) for any gear that can be used in a fishery or gear that is 
prohibited seasonally, or year round, for any previous rulemakings for 
fisheries under 50 CFR parts 600, 622, 630, 640, 644, 648, 649, 654, 
660, 678, and 679. NMFS' guidelines for preparation of economic 
analyses to comply with the RFA assume that a ``substantial number'' of 
small entities would generally be 20 percent of the total universe of 
small entities affected by the regulation. A regulation would have a 
``significant impact'' on a substantial number of small entities if any 
of the following criteria are met: Annual gross revenues are reduced by 
more than 5 percent, total costs of production are increased by more 
than 5 percent, compliance costs for small entities are at least 10 
percent higher than compliance costs as a percent of sales for large 
entities, or the action results in a cessation of business operations 
of 2 percent or more of small entities affected by the action. None of 
the aforementioned criteria were met by this action. The formalized 
list of fisheries currently in the EEZ and gear within those fisheries 
does not change any costs or revenues for members of the fishing 
industry. The new procedure that will be required before a fisherman 
may participate in a new fishery or employ a new gear in an existing 
fishery will affect only that small group of individuals (about 20 per 
year) having to comply with the notification procedure because of 
reporting requirements associated with it. As a result, a regulatory 
flexibility analysis was not prepared for this action. Any future rule 
prohibiting or restricting use of gear or prosecution of a fishery will 
be analyzed in accordance with the RFA.
    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act (PRA). This collection-of-information 
requirement has been approved by OMB and assigned the number 0648-0346. 
Public reporting burden for this collection of information has been 
revised from the average estimate of 1 hour per response to 1\1/2\ 
hours per response for Council notification of entry into a new fishery 
or use of a new gear in a current fishery, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding these burden 
estimates or any other aspect of this collection of information, 
including suggestions for reducing this burden, to NMFS and OMB (see 
ADDRESSES).
    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 PRA unless that collection of information displays a currently 
valid OMB control number.

[[Page 4036]]

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 600

    Administrative practice and procedure, Confidential business 
information, Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics.

    Dated: January 20, 1999.
Andrew A. Rosenberg,
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, paragraph (b), in the table, under 50 CFR, the 
entries for Secs. 600.725 and 600.747 are added to read as follows:


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

* * * * *
    (b) * * *

 
                                                            Current OMB
                                                              control
     CFR part or section where where the information       number  (all
            collection requirement is located              numbers begin
                                                            with 0648-)
 
 
                  *        *        *        *        *
50 CFR:
 
                  *        *        *        *        *
600.725.................................................           -0346
600.747.................................................           -0346
 
                  *        *        *        *        *
 

Chapter VI

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    1. The authority citation for part 600 continues to read as 
follows:

    Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

    2. In Sec. 600.10, the definition for ``Trawl'' is revised and new 
definitions for ``Allowable chemical'', ``Bandit gear'', ``Barrier 
net'', ``Bully net'', ``Buoy gear'', ``Cast net'', ``Dip net'', 
``Dredge'', ``Hand harvest'', ``Handline'', ``Hook and line'', ``Hoop 
net'', ``Lampara net'', ``Longline'', ``Pot'', ``Powerhead'', ``Purse 
seine'', ``Rod and reel'', ``Seine'', ``Slurp gun'', ``Snare'', 
``Spear'', ``Submersible'', ``Tangle net dredge'', ``Trammel net'', and 
``Trap'', are added in alphabetical order to read as follows:


Sec. 600.10  Definitions.

* * * * *
    Allowable chemical means a substance, generally used to immobilize 
marine life so it can be captured alive, that, when introduced into the 
water, does not take Gulf and South Atlantic prohibited coral (as 
defined at 50 CFR 622.2) and is allowed by Florida or Hawaii or the 
U.S. Pacific Insular Area for the harvest of tropical fish.
* * * * *
    Bandit gear means vertical hook and line gear with rods that are 
attached to the vessel when in use. Lines are retrieved by manual, 
electric, or hydraulic reels.
    Barrier net means a small-mesh net used to capture coral reef or 
coastal pelagic fishes.
    Bully net means a circular frame attached at right angles to a pole 
and supporting a conical bag of webbing.
    Buoy gear means fishing gear consisting of a float and one or more 
lines suspended therefrom. A hook or hooks are on the lines at or near 
the end. The float and line(s) drift freely and are retrieved 
periodically to remove catch and rebait hooks.
    Cast net means a circular net with weights attached to the 
perimeter.
* * * * *
    Dip net means a small mesh bag, sometimes attached to a handle, 
shaped and framed in various ways. It is operated by hand or partially 
by mechanical power to capture the fish.
* * * * *
    Dredge means a gear consisting of a mouth frame attached to a 
holding bag constructed of metal rings or mesh.
* * * * *
    Hand harvest means harvesting by hand.
    Handline means fishing gear that is set and pulled by hand and 
consists of one vertical line to which may be attached leader lines 
with hooks.
* * * * *
    Hook and line means one or more hooks attached to one or more lines 
(can include a troll).
    Hoop net means a cone-shaped net having throats and flues stretched 
over a series of rings or hoops for support.
* * * * *
    Lampara net means a surround net with the sections of netting made 
and joined to create bagging. It is hauled with purse rings and is 
generally much smaller in size than a purse seine net.
    Longline means a line that is deployed horizontally and to which 
gangions and hooks or pots are attached. Longlines can be stationary, 
anchored, or buoyed lines that may be hauled manually, electrically, or 
hydraulically.
* * * * *
    Pot means trap.
    Powerhead means any device with an explosive charge, usually 
attached to a spear gun, spear, pole, or stick, that may or may not 
fire a projectile upon contact.
* * * * *
    Purse seine means a floated and weighted encircling net that is 
closed by means of a drawstring threaded through rings attached to the 
bottom of the net.
* * * * *
    Rod and reel means a hand-held (including rod holder) fishing rod 
with a manually or electrically operated reel attached.
* * * * *
    Seine means a net with long narrow wings, that is rigged with 
floats and weights.
    Slurp gun means a tube-shaped suction device that operates somewhat 
like a syringe by sucking up the fish.
    Snare means a device consisting of a pole to which is attached a 
line forming at its end a loop with a running knot that tightens around 
the fish when the line is pulled.
    Spear means a sharp, pointed, or barbed instrument on a shaft. 
Spears can be operated manually or shot from a gun or sling.
* * * * *
    Submersible means a manned or unmanned device that functions or 
operates primarily underwater and is used to harvest fish, i.e., 
precious corals, with mechanical arms.
* * * * *
    Tangle net dredge means dredge gear consisting of weights and 
flimsy netting that hangs loosely in order to immediately entangle 
fish.
* * * * *
    Trammel net means a net consisting of two or more panels of 
netting, suspended vertically in the water column by a common float 
line and a common weight line. One panel of netting has a larger mesh 
size than the other(s) in order to entrap fish in a pocket.
* * * * *
    Trap means a portable, enclosed device with one or more gates or

[[Page 4037]]

entrances and one or more lines attached to surface floats. Also called 
a pot.
    Trawl means a cone or funnel-shaped net that is towed through the 
water, and can include a pair trawl that is towed simultaneously by two 
boats.
* * * * *
    3. In Sec. 600.725, paragraph (v) is added to read as follows:


Sec. 600.725  General prohibitions.

* * * * *
    (v) The use of any gear or participation in a fishery not on the 
following list of authorized fisheries and gear is prohibited after 
July 26, 1999. A fish, whether targeted or not, may be retained only if 
it is taken within a listed fishery, is taken with a gear authorized 
for that fishery, and is taken in conformance with all other applicable 
regulations. Listed gear can only be used in a manner that is 
consistent with existing laws or regulations. The list of fisheries and 
allowable gear does not, in any way, alter or supersede any definitions 
or regulations contained elsewhere in this chapter. A person or vessel 
is prohibited from engaging in fishing or employing fishing gear when 
such fishing or gear is prohibited or restricted by regulation under an 
FMP or under other applicable law. However, after July 26, 1999, an 
individual fisherman may notify the appropriate Council, or the 
Assistant Administrator in the case of Atlantic highly migratory 
species, of the intent to use a gear or participate in a fishery not 
already on this list. Ninety days after such notification, the 
individual may use the gear or participate in that fishery unless 
regulatory action is taken to prohibit the use of the gear or 
participate in the fishery (e.g., through emergency or interim 
regulations). The list of authorized fisheries and gear is as follows:

------------------------------------------------------------------------
                  Fishery                        Allowable gear types
------------------------------------------------------------------------
             New England Fishery Management Council (NEFMC)
------------------------------------------------------------------------
Atlantic Sea Scallops Fishery (FMP):
    A. Dredge fishery......................  A. Dredge.
    B. Trawl fishery.......................  B. Trawl.
    C. Hand harvest fishery................  C. Hand harvest.
    D. Recreational fishery................  D. Hand harvest.
Atlantic Salmon Fishery (FMP)..............  No harvest/possession in
                                              the EEZ.
Striped Bass Fishery (Non-FMP).............  No harvest/possession in
                                              the EEZ.
Northeast (NE) Multispecies Fishery (FMP):
    A. NE Multispecies Sink Gillnet........  A. Gillnet.
    B. North Atlantic bottom trawl.........  B. Trawl.
    C. Groundfish hook and line............  C. Longline, handline, rod
                                              and reel.
    D. Mixed species trap/pot..............  D. Trap/pot.
    E. Dredge fishery......................  E. Dredge.
    F. Seine fishery.......................  F. Seine.
    G. Recreational fishery................  G. Rod and reel, handline,
                                              spear.
American Lobster Fishery (FMP):
    A. Lobster pot/trap....................  A. Pot, trap.
    B. North Atlantic bottom trawl.........  B. Trawl.
    C. Dredge fishery......................  C. Dredge.
    D. Hand harvest fishery................  D. Hand harvest.
    E. Recreational fishery................  E. Pot, trap, hand harvest.
Atlantic Herring Fishery (Preliminary FMP):
    A. Coastal herring trawl...............  A. Trawl fishery.
    B. Atlantic herring purse seine fishery  B. Purse seine.
    C. Coastal/inshore gillnet fishery.....  C. Gillnet.
    D. Recreational fishery................  D. Hook and line, gillnet.
Dogfish Fishery (Non-FMP):
    A. Gillnet fishery.....................  A. Gillnet.
    B. Trawl fishery.......................  B. Trawl.
    C. Recreational fishery................  C. Hook and line, rod and
                                              reel.
Atlantic Bluefish (FMP managed by Mid-
 Atlantic Fishery Management Council
 (MAFMC)):
    A. Pelagic longline/hook and line......  A. Longline, handline.
    B. Seine fishery.......................  B. Purse seine, seine.
    C. Mixed species pot/trap fishery......  C. Pot, trap.
    D. Bluefish, croaker, flounder trawl     D. Trawl.
     fishery.
    E. Pelagic drift gillnet fishery.......  E. Gillnet.
    F. Dredge fishery......................  F. Dredge.
    G. Recreational fishery................  G. Rod and reel, handline,
                                              trap, pot.
Atlantic Mackerel, Squid and Butterfish
 Fishery (FMP managed by the MAFMC):
    A. Mackerel, squid, butterfish trawl     A. Trawl.
     fishery.
    B. Pelagic drift gillnet fishery.......  B. Gillnet.
    C. Pelagic longline/hook and line        C. Longline, handline.
     fishery.
    D. Purse seine fishery.................  D. Purse seine
    E. Mixed species pot/trap fishery......  E. Pot, trap.
    F. Dredge fishery......................  F. Dredge.
    G. Recreational fishery................  G. Rod and reel, handline,
                                              pot.
Surf Clam and Ocean Quahog Fishery (FMP      Dredge.
 managed by the MAFMC).
Atlantic Menhaden Purse Seine Fishery (Non-  Purse seine.
 FMP).
Atlantic Halibut Fishery (Non-FMP).........  Longline, handline,
                                              gillnet, trawl.
Weakfish Fishery (Non-FMP):
    A. Commercial fishery..................  A. Trawl, gillnet, hook and
                                              line.
    B. Recreational fishery................  B. Hook and line.

[[Page 4038]]

 
Atlantic Mussel/Sea Urchin Fishery (Non-
 FMP):
    A. Dredge fishery......................  A. Dredge.
    B. Hand harvest fishery................  B. Hand harvest.
Atlantic Skate Fishery:
    A. Trawl fishery.......................  A. Trawl.
    B. Gillnet fishery.....................  B. Gillnet.
    C. Hook-and-line fishery...............  C. Longline and handline.
Crab Fishery (Non-FMP).....................  Pot.
Northern Shrimp Fishery:
    A. Shrimp trawl fishery................  A. Trawl.
    B. Shrimp pot fishery..................  B. Pot.
Monkfish Fishery (Non-FMP):
    A. Trawl fishery.......................  A. Trawl.
    B. Gillnet fishery.....................  B. Gillnet.
    C. Demersal longline fishery...........  C. Longline.
    D. Dredge fishery......................  D. Dredge.
    E. Trap/pot............................  E. Trap/pot.
Summer Flounder, Scup, Black Sea Bass
 Fishery (FMP managed by MAFMC):
    A. Bluefish, croaker, flounder trawl     A. Trawl.
     fishery.
    B. Pelagic longline/hook and line        B. Longline, handline.
     fishery..
    C. Mixed species pot/trap fishery......  C. Pot, trap.
    D. Pelagic drift gillnet fishery.......  D. Gillnet.
     E. Recreational fishery...............  E. Rod and reel, handline,
                                              pot, trap.
Hagfish Fishery (Non-FMP)..................  Trap/pot.
------------------------------------------------------------------------
                 Mid-Atlantic Fishery Management Council
------------------------------------------------------------------------
Summer Flounder, Scup, Black Sea Bass FMP:
    A. Bluefish, croaker, flounder trawl     A. Trawl.
     fishery.
    B. Pelagic longline/hook and line        B. Longline, handline.
     fishery.
    C. Mixed species pot/trap fishery......  C. Pot, trap.
    D. Pelagic drift gillnet fishery.......  D. Gillnet.
    E. Recreational fishery................  E. Rod and reel, handline,
                                              pot, trap.
Atlantic Bluefish FMP:
    A. Bluefish, Croaker, Flounder trawl     A. Trawl.
     fishery.
    B. Pelagic longline/hook and line        B. Longline, handline.
     fishery.
    C. Mixed species pot/trap fishery......  C. Pot, trap.
    D. Pelagic drift gillnet fishery.......  D. Gillnet.
    E. Seine fishery.......................  E. Purse seine, seine.
    F. Dredge fishery......................  F. Dredge.
    G. Recreational fishery................  G. Rod and reel, handline,
                                              trap, pot.
Atlantic Mackerel, Squid, and Butterfish
 Fishery (FMP):
    A. Mackerel, Squid, Butterfish trawl     A. Trawl.
     fishery.
    B. Pelagic drift gillnet fishery.......  B. Gillnet.
    C. Pelagic longline/hook and line        C. Longline, handline.
     fishery.
    D. Purse seine fishery.................  D. Purse seine.
    E. Mixed species pot/trap fishery......  E. Pot, trap.
    F. Dredge fishery......................  F. Dredge.
    G. Bandit gear fishery.................  G. Bandit gear.
    H. Recreational fishery................  H. Rod and reel, handline,
                                              pot.
Surf Clam/Ocean Quahog Fishery (FMP):
    A. Dredge fishery......................  A. Dredge.
    B. Recreational fishery................  B. Hand harvest.
Atlantic Sea Scallop Fishery (FMP managed
 by NEFMC):
    A. Dredge fishery......................  A. Dredge.
    B. Trawl fishery.......................  B. Trawl.
    C. Hand harvest fishery................  C. Hand harvest.
Atlantic Menhaden Purse Seine Fishery (Non-  Purse seine.
 FMP).
Striped bass Fishery (Non-FMP).............  No harvest/possession in
                                              the EEZ.
Northern Shrimp Trawl Fishery (Non-FMP)....  Trawl.
American Lobster Fishery (FMP managed by
 NEFMC):
    A. Pot/trap fishery....................  A. Pot/trap.
    B. Hand harvest fishery................  B. Hand harvest.
Weakfish Fishery (Non-FMP):
    A. Commercial fishery..................  A. Trawl, gillnet, hook and
                                              line.
    B. Recreational fishery................  B. Hook and line.
Mixed Species Trawl Fishery (Non-FMP)......  Trawl.
Whelk Fishery (Non-FMP):
    A. Trawl fishery.......................  A. Trawl.
    B. Pot/trap fishery....................  B. Pot/trap.
Monkfish Fishery (Non-FMP):

[[Page 4039]]

 
    A. Trawl fishery.......................  A. Trawl.
    B. Longline fishery....................  B. Longline.
Tilefish Fishery (Non-FMP):
    A. Groundfish hook-and-line fishery....  A. Longline, handline.
    B. Recreational fishery................  B. Rod and reel.
Dogfish Fishery (Non-FMP):
    A. Gillnet fishery.....................  A. Gillnet.
    B. Trawl fishery.......................  B. Trawl.
    C. Recreational fishery................  C. Hook and line.
Coastal Gillnet Fishery (Non-FMP)..........  Gillnet.
Recreational Fishery (Non-FMP).............  Rod and reel, handline.
------------------------------------------------------------------------
                South Atlantic Fishery Management Council
------------------------------------------------------------------------
Golden Crab Fishery (FMP)..................  Trap.
Atlantic Red Drum Fishery (FMP)............  No harvest/possession in
                                              EEZ.
Coral and Coral Reef Fishery (FMP):
    A. Octocoral commercial fishery........  Hand harvest only.
    B. Live rock aquaculture fishery.......  Hand harvest only.
    C. Octocoral recreational fishery......  Hand harvest only.
South Atlantic Shrimp Fishery (FMP)........  Trawl.
South Atlantic Snapper-Grouper Fishery
 (FMP):
    A. Commercial fishery..................  A. Longline, rod and reel,
                                              bandit gear, handline,
                                              spear, powerhead.
    B. Black sea bass trap/pot fishery.....  B. Pot, trap.
    C. Wreckfish fishery...................  C. Rod and reel, bandit
                                              gear, handline.
    D. Recreational fishery................  D. Handline, rod and reel,
                                              bandit gear, spear,
                                              powerhead.
South Atlantic Spiny Lobster FMP:
    A. Commercial fishery..................  A. Trap, pot, dip net,
                                              bully net, snare.
    B. Recreational fishery................  B. Trap, pot, dip net,
                                              bully net, snare.
South Atlantic Coastal Migratory Pelagics
 FMP:
    A. Commercial Spanish mackerel fishery.  A. Handline, rod and reel,
                                              bandit gear, gillnet, cast
                                              net.
    B. Commercial King mackerel fishery....  B. Handline, rod and reel,
                                              bandit gear.
    C. Other commercial coastal migratory    C. Longline, handline, rod
     pelagics fishery.                        and reel, bandit gear.
    D. Recreational fishery................  D. Bandit gear, rod and
                                              reel, handline.
Atlantic Mackerel, Squid, and Butterfish     Trawl.
 Trawl Fishery (Non-FMP).
Weakfish Fishery (Non-FMP):
    A. Commercial fishery..................  A. Trawl, gillnet, hook and
                                              line.
    B. Recreational fishery................  B. Hook and line.
Whelk Trawl Fishery (non-FMP)..............  Trawl.
Marine Life Aquarium Fishery (Non-FMP).....  Dip net, slurp gun, barrier
                                              net, allowable chemical.
Calico Scallops Trawl Fishery (Non-FMP)....  Trawl.
Bluefish, Croaker, Flounder Trawl Fishery    Trawl.
 (Non-FMP).
Recreational Fishery (Non-FMP).............  Handline, bandit gear, rod
                                              and reel.
Sargassum Fishery (Non-FMP)................  Trawl.
------------------------------------------------------------------------
                Gulf of Mexico Fishery Management Council
------------------------------------------------------------------------
Gulf of Mexico Red Drum FMP................  No harvest/possession in
                                              EEZ.
Coral Reef FMP:
    A. Commercial fishery..................  A. Hand harvest only.
    B. Recreational fishery................  B. Hand harvest only.
Gulf of Mexico Reef Fish FMP:
    A. Snapper-Grouper reef fish longline/   A. Longline, handline,
     hook and line fishery.                   bandit gear, rod and reel,
                                              buoy gear.
    B. Pot/trap reef fish fishery..........  B. Pot, trap.
    C. Other commercial fishery............  C. Spear, powerhead, cast
                                              net, trawl.
    D. Recreational fishery................  D. Spear, powerhead, bandit
                                              gear, handline, rod reel,
                                              cast net.
Gulf of Mexico Shrimp FMP:
    A. Gulf of Mexico commercial fishery...  A. Trawl butterfly net,
                                              skimmer, castnet.
    B. Recreational fishery................  B. Trawl.

[[Page 4040]]

 
Gulf of Mexico Coastal Migratory Pelagics
 FMP:
    A. Large pelagics longline fishery.....  A. Longline.
    B. King/Spanish mackerel gillnet         B. Gillnet.
     fishery.
    C. Pelagic hook and line fishery.......  C. Bandit gear, handline,
                                              rod and reel.
    D. Pelagic species purse seine fishery.  D. Purse seine.
    E. Recreational fishery................  E. Bandit gear, handline,
                                              rod and reel, spear.
Gulf of Mexico Spiny Lobster FMP:
    A. Spiny lobster pot/trap fishery......  A. Trap, pot.
    B. Dip net fishery.....................  B. Dip net, bully net, hoop
                                              net.
    C. Recreational fishery................  C. Dip net, bully net, pot,
                                              trap, snare.
Stone Crab FMP:
    A. Trap/pot crab fishery...............  A. Trap, pot.
    B. Recreational fishery................  B. Trap, pot.
Mullet Fishery (Non-FMP):
    A. Trawl fishery.......................  A. Trawl.
    B. Gillnet fishery.....................  B. Gillnet.
    C. Recreational fishery................  C. Bandit gear, handline,
                                              rod and reel.
Inshore Coastal Gillnet Fishery (Non-FMP)..  Gillnet.
Golden Crab Fishery (Non-FMP)..............  Trap.
Octopus Fishery (Non-FMP)..................  Trap.
Marine Life Aquarium Fishery (Non-FMP).....  Dip net, slurp gun, barrier
                                              net, allowable chemical.
Coastal Herring Trawl Fishery (Non-FMP)....  Trawl.
Butterfish Trawl Fishery (Non-FMP).........  Trawl.
Gulf of Mexico Groundfish (Non-FMP):
    A. Commercial fishery..................  A. Trawl, purse seine,
                                              gillnet.
    B. Recreational fishery................  B. Hook and line.
Gulf of Mexico Menhaden Purse Fishery (Non-  Purse seine.
 FMP).
Sardine Purse Seine Fishery (Non-FMP)......  Purse seine.
Oyster Fishery (Non-FMP)...................  Dredge.
Non-Groundfish finfish (Non-FMP)...........  Trawl, gillnet, longline,
                                              handline, rod and reel,
                                              bandit gear.
Recreational fishery (Non-FMP).............  Bandit gear, handline, rod
                                              and reel, spear, bully
                                              net, gillnet, dip net,
                                              longline, powerhead,
                                              seine, slurp gun, trap,
                                              trawl, harpoon, castnet,
                                              hoop net.
------------------------------------------------------------------------
                   Caribbean Fishery Management Council
------------------------------------------------------------------------
Caribbean Spiny Lobster FMP:
    A. Trap/pot fishery....................  A. Trap/pot.
    B. Dip net fishery.....................  B. Dip net.
    C. Entangling net fishery..............  C. Gillnet, trammel net.
    D. Recreational fishery................  D. Dip net, trap, pot,
                                              gillnet, trammel net.
    E. Hand harvest fishery................  E. Hand harvest.
Caribbean Shallow Water Reef Fish FMP:
    A. Longline/hook and line fishery......  A. Longline, hook and line.
    B. Trap/pot fishery....................  B. Trap, pot.
    C. Entangling net fishery..............  C. Gillnet, trammel net.
    D. Recreational fishery................  D. Dip net, handline, rod
                                              and reel, slurp gun,
                                              spear.
Coral and Reef Resources FMP:
    A. Commercial fishery..................  A. Dip net, slurp gun.
    B. Recreational fishery................  B. Dip net, slurp gun.
Queen Conch FMP:
    A. Commercial fishery..................  A. Hand harvest only.
    B. Recreational fishery................  B. Hand harvest only.
Caribbean Pelagics (Non-FMP):
    A. Pelagics drift gillnet..............  A. Gillnet fishery.
    B. Pelagics longline/hook and line       B. Longline/hook and line.
     fishery.
    C. Recreational fishery................  C. Spear, handline,
                                              longline, rod and reel.
------------------------------------------------------------------------
                    Pacific Fishery Management Council
------------------------------------------------------------------------
Washington, Oregon, and California Salmon
 FMP:
    A. Salmon set gillnet fishery..........  A. Gillnet.
    B. Salmon hook and line fishery........  B. Hook and line.

[[Page 4041]]

 
    C. Trawl fishery.......................  C. Trawl.
    D. Recreational fishery................  D. Rod and reel.
West Coast Groundfish FMP:
    A. Pacific groundfish trawl fishery....  A. Trawl.
    B. Set gillnet fishery.................  B. Gillnet.
    C. Groundfish longline/setline fishery.  C. Longline.
    D. Groundfish handline/hook and line     D. Handline, hook and line.
     fishery.
    E. Groundfish pot/trap fishery.........  E. Pot, trap.
    F. Recreational fishery................  F. Rod and reel, handline,
                                              spear, hook and line.
Northern Anchovy Fishery (FMP).............  Purse seine, lampara net.
Angel Shark, White Croaker, California       Gillnet.
 Halibut, White Sea Bass, Pacific Mackerel
 Large-Mesh Set Net Fishery (Non-FMP).
Thresher Shark/ Swordfish Drift Gillnet      Gillnet.
 Fishery (Non-FMP).
Pacific Shrimp/Prawn (Non-FMP):
    A. Pot/trap fishery....................  A. Pot/trap.
    B. Trawl fishery.......................  B. Trawl.
Lobster, Rock Crab Pot/Trap Fishery (Non-    Pot, trap.
 FMP).
Pacific Halibut (Non-FMP):
    A. Longline/setline fishery............  A. Longline/setline.
    B. Hook-and-line fishery...............  B. Hook-and-line.
California Halibut Trawl and Trammel Net     Trawl and trammel net.
 Fishery.
Shark/Bonito Longline/Setline Fishery (Non-  Longline.
 FMP).
Dungeness Crab Pot/Trap Fishery (Non-FMP)..  Pot, trap.
Hagfish Trap/Pot Fishery (Non-FMP).........  Trap, pot.
Pacific Albacore, Other Tuna Hook and Line   Hook and line.
 Fishery (Non-FMP).
Pacific Swordfish Harpoon Fishery (Non-FMP)  Harpoon.
Pacific Scallop Dredge Fishery (Non-FMP)...  Dredge.
Pacific Yellowfin, Skipjack Tuna, Purse      Purse seine.
 Seine Fishery (Non-FMP).
Market Squid Fishery (Non-FMP).............  Purse seine; dip net.
Pacific Sardine, Pacific...................  Purse seine.
Mackerel, Pacific Saury, Pacific Bonito,
 Jack mackerel, Purse Seine Fishery (Non-
 FMP):
    Finfish and Shellfish Live Trap, Hook    Trap, handline, hook and
     and line/Handline Fishery (Non-FMP).     line.
Recreational Fishery (Non-FMP).............  Spear, trap, handline, pot,
                                              hook and line, rod and
                                              reel.
------------------------------------------------------------------------
                North Pacific Fishery Management Council
------------------------------------------------------------------------
Alaska Scallop Fishery (FMP)...............  Dredge, diving gear.
Bering Sea (BS) and Aleutian Islands (AI)
 King and Tanner Crab Fishery FMP:
    Pot fishery fishery....................  Pot.
BS and AI King and Tanner Crab Fishery (Non-
 FMP):
    Recreational fishery...................  Pot.
BS and AI Groundfish Fishery FMP:
    A. Groundfish trawl fishery............  A. Trawl.
    B. Bottomfish hook and line, handline    B. Hook and line, handline.
     fishery.
    C. Longline fishery....................  C. Longline.
    D. BS and AI pot/trap fishery..........  D. Pot, trap.
BS and AI Groundfish Fishery (Non-FMP):
    Recreational fishery...................  Handline, rod and reel,
                                              hook and line, pot, trap.
Gulf of Alaska (GOA) Groundfish Fishery
 (FMP):
    A. Groundfish trawl fishery............  A. Trawl.
    B. Bottomfish hook-and-line and          B. Hook and line, handline.
     handline.
    C. Longline fishery....................  C. Longline.
    D. GOA pot/trap fishery................  D. Pot/trap.
    E. Recreational fishery................  E. Handline, rod and reel,
                                              hook and line, pot, trap.
Pacific Halibut (Non-FMP):
    Hook and line, jig and troll fishery...  Hook and line, and jig.
Alaska High Seas Salmon FMP:
    Hook and line fishery..................  Hook and line.
Alaska Salmon (Non-FMP).
    A. Alaska salmon hook and line fishery.  A. Hook and line.
    B. Alaska salmon gillnet fishery.......  B. Gillnet.
    C. Alaska salmon purse seine fishery...  C. Purse seine.
    D. Recreational fishery................  D. Handline, rod and reel,
                                              hook and line.
Finfish Purse Seine Fishery (Non-FMP)......  Purse seine.
Octopus/Squid Longline Fishery (Non-FMP)...  Longline.
Finfish Handline/Hook and Line Fishery (Non- Handline, hook and line.
 FMP).
Recreational Fishery (Non-FMP).............  Handline, rod and reel,
                                              hook line.
------------------------------------------------------------------------

[[Page 4042]]

 
               Western Pacific Fishery Management Council
------------------------------------------------------------------------
Western Pacific Crustacean FMP Lobster       Trap.
 Fishery.
Western Pacific Crustacean (Non-FMP):
    A. Commercial fishery..................  A. Gillnet, hand harvest,
                                              hoop net, spear, snare,
                                              trap, trawl.
    B. Recreational fishery................  B. Gillnet, hand harvest,
                                              hoop net, spear, snare,
                                              trap.
    C. Charter fishery.....................  C. Hand harvest, spear.
Western Pacific Precious Corals FMP:
    A. Tangle net dredge fishery...........  A. Tangle net dredge.
    B. Submersible fishery.................  B. Submersibles.
    C. Coral Dive/Hand Collection Fishery..  C. Hand harvest only.
    D. Recreational fishery................  D. Hand harvest only.
Western Pacific Precious Corals (Non-FMP)..  Hand harvest, submersible,
                                              tangle net dredge.
Western Pacific Bottomfish/Seamount
 Groundfish FMP:
    A. Bottomfish hook and line fishery....  A. Bandit gear, buoy gear,
                                              handline, hook and line,
                                              rod and reel.
    B. Seamount groundfish fishery.........  B. Longline, trawl.
    C. Bottom longline fishery.............  C. Longline.
    D. Trap fishery........................  D. Trap.
    E. Spear fishery.......................  E. Spear, powerhead.
Western Pacific Bottomfish/Seamount
 Groundfish (Non-FMP):
    A. Commercial fishery..................  A. Bandit gear, buoy gear,
                                              gillnet, handline, hook-
                                              and-line, longline, rod
                                              and reel, spear, trap.
    B. Recreational fishery................  B. Bandit gear, buoy gear,
                                              Gillnet, handline, hook-
                                              and-line, longline, rod
                                              and reel, spear, trap.
    C. Charter fishery.....................  C. Bandit gear, buoy gear,
                                              handline, hook-and-line,
                                              rod and reel, spear.
Western Pacific Pelagics FMP:
    A. Longline fishery....................  A. Longline.
    B. Hook and line fishery...............  B. Bandit gear, buoy gear,
                                              handline, hook and line,
                                              rod and reel.
    C. Purse seine fishery.................  C. Lampara, purse seine.
    D. Spear fishery.......................  D. Spear, powerhead.
Western Pacific Pelagics (Non-FMP):
    A. Recreational fishery................  A. Bandit gear, buoy gear,
                                              dip net, handline, hook
                                              and line, hoop net,
                                              powerhead, rod and reel,
                                              spear.
    B. Commercial fishery..................  B. Bandit gear, buoy gear,
                                              dip net, handline, hook
                                              and line, hoop net,
                                              powerhead, rod and reel,
                                              spear.
    C. Charter fishery.....................  C. Bandit gear, buoy gear,
                                              dip net, handline, hook
                                              and line, hoop net,
                                              powerhead, rod and reel,
                                              spear.
Western Pacific Coastal Pelagics (Non FMP).  Bandit gear, buoy gear,
                                              dip, net, gillnet,
                                              handline, hook and line,
                                              hoop net, lampara net,
                                              purse seine, rod and reel,
                                              spear.
Western Pacific Squid/Octopus (Non FMP)....  Bandit gear, hand harvest,
                                              hook and line, rod and
                                              reel, spear, trap.
Western Pacific Shallow Reef (Non FMP).....  Allowable chemical, barrier
                                              net, dip net, gillnet,
                                              hand harvest, seine, slurp
                                              gun, trap.
------------------------------------------------------------------------
                          Secretary of Commerce
------------------------------------------------------------------------
Atlantic Swordfish FMP:
    A. Hook and line fishery...............  A. Rod and reel, handline,
                                              bandit gear.
    B. Longline fishery....................  B. Longline.
    C. Drift gillnet fishery...............  C. Gillnet.
    D. Harpoon fishery.....................  D. Harpoon.
Atlantic Sharks FMP:

[[Page 4043]]

 
    A. Hook and line fishery...............  A. Rod and reel, handline,
                                              bandit gear.
    B. Longline fishery....................  B. Longline.
    C. Drift gillnet fishery...............  C. Gillnet.
Atlantic Billfish FMP (Recreational only):
    Hook and line fishery..................  Rod and reel.
Atlantic Tunas (Non-FMP):
    A. Hook and line fishery...............  A. Rod and reel, handline,
                                              bandit gear.
    B. Purse seine fishery.................  B. Purse seine.
    C. Longline fishery....................  C. Longline.
    D. Harpoon fishery.....................  D. Harpoon.
    E. Recreational fishery................  E. Rod and reel, handline.
------------------------------------------------------------------------

    4. In subpart H, Sec. 600.747 is added to read as follows:


Sec. 600.747  Guidelines and procedures for determining new fisheries 
and gear.

    (a) General. Section 305(a) of the Magnuson-Stevens Act requires 
the Secretary to prepare a list of all fisheries under the authority of 
each Council, or the Director in the case of Atlantic highly migratory 
species, and all gear used in such fisheries. This section contains 
guidelines in paragraph (b) for determining when fishing gear or a 
fishery is sufficiently different from those listed in Sec. 600.725(v) 
as to require notification of a Council or the Director in order to use 
the gear or participate in the unlisted fishery. This section also 
contains procedures in paragraph (c) for notification of a Council or 
the Director of potentially new fisheries or gear, and for amending the 
list of fisheries and gear.
    (b) Guidelines. The following guidance establishes the basis for 
determining when fishing gear or a fishery is sufficiently different 
from those listed to require notification of the appropriate Council or 
the Director.
    (1) The initial step in the determination of whether a fishing gear 
or fishery is sufficiently different to require notification is to 
compare the gear or fishery in question to the list of authorized 
fisheries and gear in Sec. 600.725(v) and to the existing gear 
definitions in Sec. 600.10.
    (2) If the gear in question falls within the bounds of a definition 
in Sec. 600.10 for an allowable gear type within that fishery, as 
listed under Sec. 600.725(v), then the gear is not considered 
different, is considered allowable gear, and does not require 
notification of the Council or Secretary 90 days before it can be used 
in that fishery.
    (3) If, for any reason, the gear is not consistent with a gear 
definition for a listed fishery as described in paragraph (b)(2) of 
this section, the gear is considered different and requires Council or 
Secretarial notification as described in paragraph (c) of this section 
90 days before it can be used in that fishery.
    (4) If a fishery falls within the bounds of the list of authorized 
fisheries and gear in Sec. 600.725(v) under the Council's or 
Secretary's authority, then the fishery is not considered different, is 
considered an allowable fishery and does not require notification of 
the Council or Director before that fishery can occur.
    (5) If a fishery is not already listed in the list of authorized 
fisheries and gear in Sec. 600.725(v), then the fishery is considered 
different and requires notification as described in paragraph (c) of 
this section 90 days before it can occur.
    (c) Procedures. If a gear or fishery does not appear on the list in 
Sec. 600.725(v), or if the gear is different from that defined in 
Sec. 600.10, the process for notification, and consideration by a 
Council or the Director, is as follows:
    (1) Notification. After July 26, 1999, no person or vessel may 
employ fishing gear or engage in a fishery not included on the list of 
approved gear types in Sec. 600.725(v) without notifying the 
appropriate Council or the Director at least 90 days before the 
intended use of that gear.
    (2) Notification procedures. (i) A signed return receipt for the 
notice serves as adequate evidence of the date that the notification 
was received by the appropriate Council or the Director, in the case of 
Atlantic highly migratory species, and establishes the beginning of the 
90-day notification period, unless required information in the 
notification is incomplete.
    (ii) The notification must include:
    (A) Name, address, and telephone number of the person submitting 
the notification.
    (B) Description of the gear.
    (C) The fishery or fisheries in which the gear is or will be used.
    (D) A diagram and/or photograph of the gear, as well as any 
specifications and dimensions necessary to define the gear.
    (E) The season(s) in which the gear will be fished.
    (F) The area(s) in which the gear will be fished.
    (G) The anticipated bycatch species associated with the gear, 
including protected species, such as marine mammals, sea turtles, sea 
birds, or species listed as endangered or threatened under the ESA.
    (H) How the gear will be deployed and fished, including the 
portions of the marine environment where the gear will be deployed 
(surface, midwater, and bottom).
    (iii) Failure to submit complete and accurate information will 
result in a delay in beginning the 90-day notification period. The 90-
day notification period will not begin until the information received 
is determined to be accurate and complete.
    (3) Action upon receipt of notification. (i) Species other than 
Atlantic Highly Migratory Species. (A) Upon signing a return receipt of 
the notification by certified mail regarding an unlisted fishery or 
gear, a Council must immediately begin consideration of the 
notification and send a copy of the notification to the appropriate 
Regional Administrator.
    (B) If the Council finds that the use of an unlisted gear or 
participation in a new fishery would not compromise the effectiveness 
of conservation and management efforts, it shall:
    (1) Recommend to the RA that the list be amended;
    (2) Provide rationale and supporting analysis, as necessary, for 
proper consideration of the proposed amendment; and
    (3) Provide a draft proposed rule for notifying the public of the 
proposed addition, with a request for comment.
    (C) If the Council finds that the proposed gear or fishery will be 
detrimental to conservation and management efforts, it will recommend 
to the RA that the authorized list of

[[Page 4044]]

fisheries and gear not be amended, that a proposed rule not be 
published, give reasons for its recommendation of a disapproval, and 
may request NMFS to publish emergency or interim regulations, and begin 
preparation of an FMP or amendment to an FMP, if appropriate.
    (D) After considering information in the notification and Council's 
recommendation, NMFS will decide whether to publish a proposed rule. If 
information on the new gear or fishery being considered indicates it is 
likely that it will compromise conservation and management efforts 
under the Magnuson-Stevens Act, and no additional new information is 
likely to be gained from a public comment period, then a proposed rule 
will not be published and NMFS will notify the appropriate Council. In 
such an instance, NMFS will publish emergency or interim regulations to 
prohibit or restrict use of the gear or participation in the fishery. 
If NMFS determines that the proposed amendment is not likely to 
compromise conservation and management efforts under the Magnuson-
Stevens Act, NMFS will publish a proposed rule in the Federal Register 
with a request for public comment.
    (ii) Atlantic Highly Migratory Species. (A) Upon signing a return 
receipt of the notification by certified mail regarding an unlisted 
fishery or gear for Atlantic highly migratory species (HMS), NMFS will 
immediately begin consideration of the notification.
    (B) Based on information in the notification and submitted by the 
Council, NMFS will make a determination whether the use of an unlisted 
gear or participation in an unlisted HMS fishery will compromise the 
effectiveness of conservation and management efforts under the 
Magnuson-Stevens Act. If it is determined that the proposed amendment 
will not compromise conservation and management efforts, NMFS will 
publish a proposed rule.
    (C) If NMFS finds that the proposed gear or fishery will be 
detrimental to conservation and management efforts in this initial 
stage of review, it will not publish a proposed rule and notify the 
applicant of the negative determination with the reasons therefor.
    (4) Final determination and publication of a final rule. Following 
public comment, NMFS will approve or disapprove the amendment to the 
list of gear and fisheries.
    (i) If approved, NMFS will publish a final rule in the Federal 
Register and notify the applicant and the Council, if appropriate, of 
the final approval.
    (ii) If disapproved, NMFS will withdraw the proposed rule, notify 
the applicant and the Council, if appropriate, of the disapproval; 
publish emergency or interim regulations, if necessary, to prohibit or 
restrict the use of gear or the participation in a fishery; and either 
notify the Council of the need to amend an FMP or prepare an amendment 
to an FMP in the case of Atlantic highly migratory species.

[FR Doc. 99-1766 Filed 1-26-99; 8:45 am]
BILLING CODE 3510-22-P