[Federal Register Volume 64, Number 66 (Wednesday, April 7, 1999)]
[Proposed Rules]
[Pages 16891-16896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8470]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 990301058-9058-01; I.D. 011499B]
RIN 0648-AL56


Fisheries of the Northeastern United States; Amendment 12 to the 
Fishery Management Plan for the Summer Flounder, Scup, and Black Sea 
Bass Fisheries; Amendment 8 to the Fishery Management Plan for the 
Atlantic Mackerel, Squid, and Butterfish Fisheries; and Amendment 12 to 
the Fishery Management Plan for the Atlantic Surf Clam and Ocean Quahog 
Fisheries

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 12 to the 
Fishery Management Plan (FMP) for the Summer Flounder, Scup, and Black 
Sea Bass Fisheries; Amendment 8 to the FMP for the Atlantic Mackerel, 
Squid, and Butterfish Fisheries; and Amendment 12 to the FMP for the 
Atlantic Surf Clam and Ocean Quahog Fisheries. This proposed rule would 
implement framework provisions for amending management measures for 
these fisheries, restrict the size of domestic harvesting vessels 
permitted in the Atlantic mackerel fishery without restricting the size 
of processing vessels, and implement an operator permit requirement for 
the surf clam and ocean quahog fisheries. These amendments are intended 
to meet the requirements of the Sustainable Fisheries Act of October 
1996 (SFA).

DATES: Comments must be received on or before May 24, 1999.

ADDRESSES: Comments on this proposed rule should be sent to Jon C. 
Rittgers, Acting Regional Administrator,

[[Page 16892]]

Northeast Regional Office, NMFS, One Blackburn Drive, Gloucester, MA 
01930. Mark the outside of the envelope ``Comments on the Mid-Atlantic 
SFA Amendments.''
    Comments regarding burden-hour estimates for collection-of-
information requirements contained in this proposed rule should be sent 
to the Office of Information and Regulatory Affairs, Office of 
Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk 
Officer).
    Copies of the proposed amendments, the environmental assessments 
(EA), the regulatory impact reviews, and other supporting documents are 
available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery 
Management Council, Room 2115 Federal Building, 300 S. New Street, 
Dover, DE 19904-6790.

FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy 
Analyst, 978-281-9221.

SUPPLEMENTARY INFORMATION: The Mid-Atlantic Fishery Management Council 
(Council) and the Atlantic States Marine Fisheries Commission, in 
consultation with the New England and South Atlantic Fishery Management 
Councils, prepared proposed Amendment 12 to the Summer Flounder, Scup, 
and Black Sea Bass FMP. The Council, in consultation with the New 
England and South Atlantic Fishery Management Councils, prepared 
proposed Amendment 8 to the Atlantic Mackerel, Squid, and Butterfish 
FMP. The Council, in consultation with the New England Fishery 
Management Council, prepared proposed Amendment 12 to the Atlantic Surf 
Clam and Ocean Quahog FMP.
    NMFS published a notice of availability for these amendments in the 
Federal Register on January 27, 1999 (64 FR 4065), soliciting public 
comments on the three amendments through March 29, 1999. All comments 
received by the end of that comment period on the proposed amendments, 
whether specifically directed to any of the amendments or to this 
proposed rule, will be considered in the approval/disapproval decision 
on the amendments. Public comments must be received (not postmarked or 
otherwise transmitted, including faxes) by the close of business on 
March 29, 1999, to be considered in the approval/disapproval decision. 
Comments received after that date, but before the end of the comment 
period for this proposed rule May 24, 1999, will not be considered in 
the approval/disapproval decision of the amendments, but will be 
considered in the decision on issuance of the final rule.

Overfishing Definition

    All three of the FMP amendments would revise the overfishing 
definitions to bring them into accord with the new national standards 
of the Magnuson-Stevens Fishery Conservation and Management Act of 1976 
(Magnuson-Stevens Act), as amended by the SFA. Under the revised 
standards, overfishing definitions must be composed of two reference 
points, one for fishing mortality and one for stock biomass. 
``Overfishing'' occurs whenever a stock or stock complex is subjected 
to a rate or level of F that jeopardizes the capacity of a stock or 
stock complex to produce maximum sustainable yield (MSY) on a 
continuing basis. ``Overfished'' describes a stock or stock complex 
with a sufficiently low biomass to require a change in management 
practices to achieve the appropriate level or rate of stock rebuilding 
(to Btarget).
    Only one change to the regulatory text is necessary because of the 
new overfishing definitions. Amendment 8 to the Atlantic Mackerel, 
Squid, and Butterfish FMP (Amendment 8) proposes to revise the maximum 
fishing mortality rate for Illex squid to Fmsy to better 
reflect the goal of achieving MSY on a continuing basis. The other 
proposed FMP amendments do not require changes to the regulatory text. 
Comments on these FMP amendments were solicited in the Notice of 
Availability (64 FR 4065).

Framework Adjustment Process

    The proposed amendments would add a framework adjustment process 
for each of the fisheries, in addition to the annual specification 
setting process. This provision would allow the Council to modify or 
add management measures through a streamlined public review process. As 
such, management measures that have been identified in the plan could 
be implemented or adjusted at any time during the year. The following 
management measures could be implemented or modified through framework 
adjustment procedures for Amendments 12 and 8 (summer flounder, scup, 
black sea bass, Atlantic mackerel, Loligo and Illex squids, and 
butterfish fisheries) unless otherwise noted: Minimum and maximum fish 
sizes; gear restrictions; permitting restrictions; recreational 
possession and harvest limits and seasons; closed areas; commercial 
seasons and trip limits; commercial quota system, including commercial 
quota allocation procedure and possible quota set asides to mitigate 
bycatch; restrictions on vessel size in length overall and gross 
registered tons (LOA and GRT) or shaft horsepower; operator permits 
(summer flounder, scup, and black sea bass only); regional management 
and inseason adjustments to specifications (Atlantic mackerel, squid, 
and butterfish only) and any other management measures currently 
included in the FMP.
    In addition, the following provisions could be implemented for the 
fisheries managed under all three FMPs, unless otherwise noted: Set 
aside quotas for scientific research; description and identification of 
essential fish habitat (EFH) and habitat areas of particular concern; 
management measures for fishing gear that impact EFH; overfishing 
definition thresholds and targets; vessel tracking system; and optimum 
yield range (surf clam and ocean quahogs only).

Other Proposed Measures

    This proposed rule would restrict the size of domestic harvesting 
vessels, but not processing vessels, permitted in the Atlantic mackerel 
fishery. Any vessel that exceeds any one of the following: 165 ft (50.3 
m) in LOA, or 750 GRT, or a shaft horsepower (shp) of 3,000, would be 
ineligible for a permit to harvest Atlantic mackerel. NMFS believes 
this proposed language describes clearly the intended effect of the 
measure, which is to exclude all vessels meeting any one of the three 
criteria.
    NMFS is concerned that the wording of the regulation, as submitted 
by the Council, would not achieve the Council's intentions by allowing 
vessels to become eligible for a harvesting permit under various 
combinations of length, tonnage and horsepower. Based on the record of 
discussions at public Council meetings, this proposed rule would 
interpret the Council's action to mean adoption of the most restrictive 
interpretation of the criteria. NMFS is seeking comment on this 
interpretation which would prohibit harvesting of Atlantic mackerel by 
all vessels meeting any one of the preceding criteria. NMFS is also 
seeking comment on the overall merits of such a prohibition on 
harvesting vessels.
    The Council is concerned about rapid over-capitalization of the 
mackerel fleet by the entry of large vessels with significant 
harvesting potential. The Council's analysis indicates that the current 
fleet of vessels in the Northeast has more than enough fishing 
harvesting capacity to take the sustainable harvest of Atlantic 
mackerel. This analysis can be reviewed in its entirety by obtaining a 
copy of Amendment 8 to the Atlantic

[[Page 16893]]

Mackerel, Squid, and Butterfish FMP (see ADDRESSES).
    Because Amendment 8 proposes to prohibit only vessels that exceed 
the above specified limits from harvesting Atlantic mackerel and not 
from processing it, NMFS, to be consistent with the intent of the 
Council, proposes to modify the vessel and dealer permitting provisions 
to provide for processing by such vessels. Specifically, the vessel 
permit requirement would be revised to make vessels exceeding the size 
limits specified ineligible for a permit to harvest Atlantic mackerel. 
A new dealer permit category would be established to allow a vessel of 
any size to receive, possess and process Atlantic mackerel at sea, as 
well as to off-load the product. Such a vessel would be required to 
obtain an at-sea processing permit and comply with the dealer reporting 
requirements.
    This proposed rule would implement, through Amendment 12 to the FMP 
for the Atlantic Surf Clam and Ocean Quahog Fisheries, the operator 
permit requirement for individuals fishing for surf clams or ocean 
quahogs. An operator is the master, captain, or other individual aboard 
a fishing vessel who is in charge of that vessel's operations. Under 
the proposed rule, any vessel fishing commercially for surf clams or 
ocean quahogs in the EEZ would have to have on board at least one 
operator who holds an operator permit issued pursuant to this FMP or 
any other FMP prepared by the Mid-Atlantic or the New England Fishery 
Management Councils. The operator may be held accountable for 
violations of the fishing regulations and may be subject to an operator 
permit sanction for violations. During the permit sanction period, the 
individual operator could not be aboard any federally permitted fishing 
vessel or any vessel subject to Federal fishing regulations while the 
vessel is at sea or engaged in off-loading.

Technical Changes

    Effective February 1, 1991, NMFS closed the fishing grounds located 
east of 69 deg. W. longitude, and south of 42 deg.20' N. latitude to 
surf clam and ocean quahog harvesting (56 FR 3980, February 1, 1991). 
That area was closed to fishing for surf clams and ocean quahogs due to 
high concentrations of the organism that causes paralytic shellfish 
poisoning (PSP) currently found in these species at that location. The 
original notification specified that the area would remain closed until 
the Secretary of Commerce determines that the adverse environmental 
conditions caused by the PSP toxin are no longer present. Since that 
closure is still in effect, NMFS proposes to codify the closure so that 
new entrants into the fishery, and those who may not have been actively 
participating in the fishery since 1991, can be notified more easily of 
the closure and subsequent re-opening, should it occur.
    Additionally, NMFS proposes to suspend the sea turtle conservation 
regulations codified at Sec. 648.106. The measures implemented in 
Amendment 2 to the Summer Flounder, Scup, and Black Sea Bass FMP (57 FR 
57358, December 4, 1992) were intended to serve a temporary function, 
pending implementation of permanent measures under the authority of the 
Endangered Species Act (ESA). Those regulations are now in place under 
50 CFR parts 217 and 227. Regulations issued under the ESA supersede 
the regulations issued under part 648, which are proposed to be 
replaced with a cross reference to parts 217 and 227.

Classification

    At this time, NMFS has not determined that the amendments that this 
proposed rule would implement are consistent with the national 
standards of the Magnuson-Stevens Act and other applicable law. NMFS, 
in making that determination, will take into account the data, views, 
and comments received during the comment period.
    The Council prepared EAs for each of the amendments that discuss 
the impacts on the environment. Copies of the environmental assessments 
are available from the Council (see ADDRESSES).
    This proposed rule has been determined to be significant for 
purposes of E.O. 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
as follows:

    Some of the provisions implemented by this rule, i.e., the 
revised overfishing definitions and the framework process, are not 
expected to impact participants in any of these fisheries. 
Consequently, these provisions would not change historical 
production or normal business practices associated with the fishery. 
For the operator permit provision, approximately 21 of the 84 
vessels that landed surf clams or ocean quahogs in 1997 (25 percent) 
are operated by individuals who would be required to obtain that 
permit. These individuals would not already have a permit issued, as 
required by another fishery. Compliance costs associated with this 
requirement are estimated at $22 ($15 form preparation, plus $7 for 
passport photographs), to be incurred every 3 years only, since the 
permit is valid for that time. Therefore, it is realistic to assume 
that this cost would equate to but a small percentage of the 
annualized costs of the surf clam and quahog industry. The vessel 
size restriction is estimated to impact 1 of approximately 1,000 
vessels that represent potential new entry into the directed 
mackerel fishery. As a result, a regulatory flexibility analysis was 
not prepared. Any changes in management provisions that arise as a 
result of the measures enacted by these amendments would be reviewed 
for economic impacts when submitted.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

    This proposed rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act. These collection-of-information 
requirements have been submitted to OMB for approval. The requirements 
and their estimated response times are: Operator permits at 1 hour per 
response, at-sea processor permits at 5 minutes per response, and 
weekly reporting for at-sea processors at 2 minutes to complete the 
dealer purchase report (Form 88-30), and 4 minutes to summarize and 
call-in the weekly IVR report. The response times shown include the 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information.
    Public comment is sought regarding whether these proposed 
collections-of-information are necessary for the proper performance of 
the functions of the agency, including whether the information has 
practical utility; the accuracy of the burden estimate; ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and ways to minimize the burden of the collection-of-information, 
including through the use of automated collection techniques or other 
forms of information technology. Send comments regarding these burden 
estimates or any other aspect of the data requirements, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Washington, DC 20503 (ATTN: NOAA Desk Officer).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.


[[Page 16894]]


    Dated: March 31, 1999.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. In Sec. 648.4, paragraph (a)(5)(iii) is revised to read as 
follows:


Sec. 648.4  Vessel and individual commercial permits.

    (a) * * *
    (5) * * *
    (iii) Atlantic mackerel permit. Any vessel of the United States may 
obtain a permit to fish for or retain Atlantic mackerel in or from the 
EEZ, except for vessels that exceed 165 feet in length overall (LOA), 
or 750 gross registered tons, or have shaft horsepower exceeding 3000 
shp. Vessels that exceed the size restriction may obtain an at-sea 
processing permit specified under Sec. 648.6(a)(2).
* * * * *
    3. In Sec. 648.5, paragraph (a) is revised to read as follows:


Sec. 648.5  Operator permits.

    (a) General. Any operator of a vessel fishing for or possessing sea 
scallops in excess of 40 lb (18.1 kg), NE Multispecies, and, mackerel, 
squid, or butterfish, or scup, and, black sea bass, or, as of [insert 
effective date of the final rule], Atlantic surf clams and ocean quahog 
harvested in or from the EEZ, or issued a permit for these species 
under this part, must have been issued under this section and carry on 
board, a valid operator's permit.
* * * * *
    4. In Sec. 648.6, paragraph (a) is redesignated paragraph (a)(1) 
and a heading is added to newly redesignated paragraph (a)(1); a new 
paragraph (a)(2) is added; and a paragraph (c) is revised to read as 
follows:


Sec. 648.6  Dealer/processor permits.

    (a) General. (1) Dealer permits. * * *
    (2) At-sea processors. Notwithstanding the provisions of 
Sec. 648.4(a)(5), any vessel of the United States must have been issued 
and carry on board a valid at-sea processor permit issued under this 
section to receive over the side, possess and process Atlantic mackerel 
harvested in or from the EEZ by a lawfully permitted vessel of the 
United States.
* * * * *
    (c) Information requirements. Applications must contain at least 
the following information and any other information required by the 
Regional Administrator: Company name, place(s) of business (principal 
place of business if applying for a surf clam and ocean quahog permit), 
mailing address(es) and telephone number(s), owner's name, dealer 
permit number (if a renewal), name and signature of the person 
responsible for the truth and accuracy of the application, a copy of 
the certificate of incorporation if the business is a corporation, and 
a copy of the partnership agreement and the names and addresses of all 
partners, if the business is a partnership, name of at-sea processor 
vessel, and current vessel documentation papers, if an at-sea processor 
permit.
* * * * *
    5. In Sec. 648.7, the last two sentences of paragraph (c) are 
removed and paragraph (f)(3) is revised to read as follows:


Sec. 648.7  Recordkeeping and reporting requirements.

* * * * *
    (f) * * *
    (3) At-sea purchasers, receivers, or processors. All persons 
purchasing, receiving, or processing any summer flounder, or mackerel, 
or squid, or butterfish, or scup, or black sea bass at sea for landing 
at any port of the United States must submit information identical to 
that required by paragraph (a)(1), (a)(2), or (a)(3) of this section, 
as applicable, and provide those reports to the Regional Administrator 
or designee on the same frequency basis.
* * * * *
    6. In Sec. 648.14, paragraph (p)(10) is added to read as follows:


Sec. 648.14  Prohibitions.

* * * * *
    (p) * * *
    (10) Fish for, retain, or possess Atlantic mackerel in or from the 
EEZ with a vessel that exceeds 165 ft (50.3 m) in length overall, or 
750 GRT, or 3000 shp, except for processing Atlantic mackerel by a 
vessel holding a valid at-sea processor permit pursuant to 
Sec. 648.6(a)(2).
* * * * *
    7. In Sec. 648.20, paragraph (c) is revised to read as follows:


Sec. 648.20  Maximum optimum yield (OYs).

* * * * *
    (c) Illex-catch associated with a fishing mortality rate of 
Fmsy.
* * * * *
    8. In Sec. 648.21, paragraph (b)(2)(i) is revised to read as 
follows:


Sec. 648.21  Procedures for determining initial annual amounts.

* * * * *
    (b) * * *.
    (2) Mackerel. (i) Mackerel ABC must be calculated from the formula 
ABC = T - C, where C is the estimated catch of mackerel in Canadian 
waters for the upcoming fishing year and T is the catch associated with 
a fishing mortality rate that is equal to Ftarget (F= 0.25) 
at 890,000 mt spawning stock biomass (or greater) and decreases 
linearly to zero at 450,000 mt spawning stock biomass (\1/2\ 
Bmsy).
* * * * *
    9. Section 648.24 is added under subpart B to read as follows:


Sec. 648.24  Framework adjustments to management measures.

    (a) Within season management action. The MAFMC, at any time, may 
initiate action to add or adjust management measures within the 
Atlantic Mackerel, Squid, and Butterfish FMP if it finds that action is 
necessary to meet or be consistent with the goals and objectives of the 
plan.
    (1) Adjustment process. The MAFMC shall develop and analyze 
appropriate management actions over the span of at least two MAFMC 
meetings. The MAFMC must provide the public with advance notice of the 
availability of the recommendation(s), appropriate justification(s) and 
economic and biological analyses, and the opportunity to comment on the 
proposed adjustment(s) at the first meeting and prior to and at the 
second MAFMC meeting. The MAFMC's recommendations on adjustments or 
additions to management measures must come from one or more of the 
following categories: minimum fish size, maximum fish size, gear 
restrictions, gear requirements or prohibitions, permitting 
restrictions, recreational possession limit, recreational seasons, 
closed areas, commercial seasons, commercial trip limits, commercial 
quota system including commercial quota allocation procedure and 
possible quota set asides to mitigate bycatch, recreational harvest 
limit, annual specification quota setting process, FMP Monitoring 
Committee composition and process, description and identification of 
essential fish habitat (and fishing gear management measures that 
impact EFH), description and identification of habitat areas of 
particular concern,

[[Page 16895]]

overfishing definition and related thresholds and targets, regional 
gear restrictions, regional season restrictions (including option to 
split seasons), restrictions on vessel size (LOA and GRT) or shaft 
horsepower, any other management measures currently included in the 
FMP, set aside quota for scientific research, regional management, and 
process for inseason adjustment to the annual specification.
    (2) MAFMC recommendation. After developing management actions and 
receiving public testimony, the MAFMC shall make a recommendation to 
the Regional Administrator. The MAFMC's recommendation must include 
supporting rationale, if management measures are recommended, an 
analysis of impacts, and a recommendation to the Regional Administrator 
on whether to issue the management measures as a final rule. If MAFMC 
recommends that the management measures should be issued as a final 
rule, MAFMC must consider at least the following factors, and provide 
support and analysis for each factor considered:
    (i) Whether the availability of data on which the recommended 
management measures are based allows for adequate time to publish a 
proposed rule, and whether the regulations would have to be in place 
for an entire harvest/fishing season.
    (ii) Whether there has been adequate notice and opportunity for 
participation by the public and members of the affected industry in the 
development of the recommended management measures.
    (iii) Whether there is an immediate need to protect the resource.
    (iv) Whether there will be a continuing evaluation of management 
measures following their implementation as a final rule.
    (3) Regional Administrator action. If the MAFMC's recommendation 
includes adjustments or additions to management measures and, after 
reviewing the MAFMC's recommendation and supporting information:
    (i) If the Regional Administrator concurs with MAFMC's recommended 
management measures and determines that the recommended management 
measures should be issued as a final rule based on the factors 
specified in paragraph (a)(2) of this section, the measures will be 
issued as a final rule in the Federal Register.
    (ii) If the Regional Administrator concurs with MAFMC's recommended 
management measures and determines that the recommended management 
measures should be published first as a proposed rule, the measures 
will published as a proposed rule in the Federal Register. After 
additional public comment, if the Regional Administrator concurs with 
the MAFMC recommendation, the measures will be issued as a final rule 
in the Federal Register.
    (iii) If the Regional Administrator does not concur, MAFMC will be 
notified in writing of the reasons for the non-concurrence.
    (4) Emergency actions. Nothing in this section is meant to derogate 
from the authority of the Secretary to take emergency action under 
section 305(e) of the Magnuson-Stevens Act.
    (b) [Reserved]
    10. In Sec. 648.73, paragraph (a)(4) is added to read as follows:


Sec. 648.73  Closed areas.

    (a) * * *
    (4) Georges Bank. The paralytic shellfish poisoning (PSP) 
contaminated area known as Georges Bank and located east of 69 deg. W. 
longitude, and south of 42 deg.20' N. latitude.
    * * * * *
    11. Section 648.77 under Subpart E is added to read as follows:


Sec. 648.77  Framework adjustments to management measures.

    (a) Within season management action. At any time, MAFMC may 
initiate action to add or adjust management measures within the 
Atlantic Surf Clam and Ocean Quahog FMP if it finds that action is 
necessary to meet or be consistent with the goals and objectives of the 
plan.
    (1) Adjustment process. MAFMC shall develop and analyze appropriate 
management actions over the span of at least two MAFMC meetings. MAFMC 
must provide the public with advance notice of the availability of the 
recommendation(s), appropriate justification(s) and economic and 
biological analyses, and the opportunity to comment on the proposed 
adjustment(s) at the first meeting, and prior to and at the second 
MAFMC meeting. The MAFMC's recommendations on adjustments or additions 
to management measures must come from one or more of the following 
categories: The overfishing definition (both the threshold and target 
levels) description and identification of EFH (and fishing gear 
management measures that impact EFH), habitat areas of particular 
concern, set aside quota for scientific research, vessel tracking 
system, optimum yield range.
    (2) MAFMC recommendation. After developing management actions and 
receiving public testimony, MAFMC shall make a recommendation to the 
Regional Administrator. MAFMC's recommendation must include supporting 
rationale, if management measures are recommended, an analysis of 
impacts, and a recommendation to the Regional Administrator on whether 
to issue the management measures as a final rule. If MAFMC recommends 
that the management measures should be issued as a final rule, it must 
consider at least the following factors, and provide support and 
analysis for each factor considered:
    (i) Whether the availability of data on which the recommended 
management measures are based allows for adequate time to publish a 
proposed rule, and whether the regulations would have to be in place 
for an entire harvest/fishing season.
    (ii) Whether there has been adequate notice and opportunity for 
participation by the public and members of the affected industry in the 
development of recommended management measures.
    (iii) Whether there is an immediate need to protect the resource.
    (iv) Whether there will be a continuing evaluation of management 
measures adopted following their implementation as a final rule.
    (3) Regional Administrator action. If MAFMC's recommendation 
includes adjustments or additions to management measures and, after 
reviewing MAFMC's recommendation and supporting information:
    (i) If the Regional Administrator concurs with the MAFMC's 
recommended management measures and determines that the recommended 
management measures should be issued as a final rule based on the 
factors specified in paragraph (a)(2) of this section, the measures 
will be issued as a final rule in the Federal Register.
    (ii) If the Regional Administrator concurs with the MAFMC's 
recommended management measures and determines that the recommended 
management measures should be published first as a proposed rule, the 
measures will be published as a proposed rule in the Federal Register. 
After additional public comment, if the Regional Administrator concurs 
with the MAFMC recommendation, the measures will be issued as a final 
rule and published in the Federal Register.
    (iii) If the Regional Administrator does not concur, MAFMC will be 
notified in writing of the reasons for the non-concurrence.
    (4) Emergency actions. Nothing in this section is meant to derogate 
from the authority of the Secretary to take emergency action under 
section 305(e) of the Magnuson-Stevens Act.
    (b) [Reserved]

[[Page 16896]]

    12. Section 648.107 is added under Subpart G to read as follows:


Sec. 648.107  Framework adjustments to management measures.

    (a) Within season management action. MAFMC, at any time, may 
initiate action to add or adjust management measures within the Summer 
Flounder, Scup, and Black Sea Bass FMP if it finds that action is 
necessary to meet or be consistent with the goals and objectives of the 
plan.
    (1) Adjustment process. MAFMC shall develop and analyze appropriate 
management actions over the span of at least two MAFMC meetings. MAFMC 
must provide the public with advance notice of the availability of the 
recommendation(s), appropriate justification(s) and economic and 
biological analyses, and the opportunity to comment on the proposed 
adjustment(s) at the first meeting and prior to and at the second MAFMC 
meeting. MAFMC's recommendations on adjustments or additions to 
management measures must come from one or more of the following 
categories: Minimum fish size, maximum fish size, gear restrictions, 
gear requirements or prohibitions, permitting restrictions, 
recreational possession limit, recreational seasons, closed areas, 
commercial seasons, commercial trip limits, commercial quota system 
including commercial quota allocation procedure and possible quota set 
asides to mitigate bycatch, recreational harvest limit, annual 
specification quota setting process, FMP Monitoring Committee 
composition and process, description and identification of essential 
fish habitat (and fishing gear management measures that impact EFH), 
description and identification of habitat areas of particular concern, 
overfishing definition and related thresholds and targets, regional 
gear restrictions, regional season restrictions (including option to 
split seasons), restrictions on vessel size (LOA and GRT) or shaft 
horsepower, operator permits, any other commercial or recreational 
management measures, any other management measures currently included 
in the FMP, and set aside quota for scientific research.
    (2) MAFMC recommendation. After developing management actions and 
receiving public testimony, MAFMC shall make a recommendation to the 
Regional Administrator. MAFMC's recommendation must include supporting 
rationale, if management measures are recommended, an analysis of 
impacts, and a recommendation to the Regional Administrator on whether 
to issue the management measures as a final rule. If MAFMC recommends 
that the management measures should be issued as a final rule, it must 
consider at least the following factors and provide support and 
analysis for each factor considered:
    (i) Whether the availability of data on which the recommended 
management measures are based allows for adequate time to publish a 
proposed rule, and whether the regulations would have to be in place 
for an entire harvest/fishing season.
    (ii) Whether there has been adequate notice and opportunity for 
participation by the public and members of the affected industry in the 
development of recommended management measures.
    (iii) Whether there is an immediate need to protect the resource.
    (iv) Whether there will be a continuing evaluation of management 
measures adopted following their implementation as a final rule.
    (3) Regional Administrator action. If MAFMC's recommendation 
includes adjustments or additions to management measures and, if after 
reviewing the MAFMC's recommendation and supporting information:
    (i) The Regional Administrator concurs with the MAFMC's recommended 
management measures and determines that the recommended management 
measures should be issued as a final rule based on the factors 
specified in paragraph (a)(2) of this section, the measures will be 
issued as a final rule in the Federal Register.
    (ii) If the Regional Administrator concurs with the MAFMC's 
recommended management measures and determines that the recommended 
management measures should be published first as a proposed rule, the 
measures will be published as a proposed rule in the Federal Register. 
After additional public comment, if the Regional Administrator concurs 
with the MAFMC recommendation, the measures will be issued as a final 
rule and published in the Federal Register.
    (iii) If the Regional Administrator does not concur, the MAFMC will 
be notified in writing of the reasons for the non-concurrence.
    (4) Emergency actions. Nothing in this section is meant to derogate 
from the authority of the Secretary to take emergency action under 
section 305(e) of the Magnuson-Stevens Act.
    (b) [Reserved]
    13. Section 648.127 is added under Subpart H to read as follows:


Sec. 648.127  Framework adjustments to management measures.

    (a) Within season management action. See Sec. 648.107(a).
    (1) Adjustment process. See Sec. 648.107(a)(1).
    (2) MAFMC recommendation. See Sec. 648.107(a)(2)(i) to (iv).
    (3) Regional Administrator action. See Sec. 648.107(a)(i) through 
(iii).
    (4) Emergency actions. See Sec. 648.107(a)(4).
    (b) [Reserved]
    14. Section 648.147 is added under Subpart I to read as follows:


Sec. 648.147  Framework adjustments to management measures.

    (a) Within season management action. See Sec. 648.107(a).
    (1) Adjustment process. See Sec. 648.107(a)(1).
    (2) MAFMC recommendation. See Sec. 648.107(a)(2)(i) through (iv).
    (3) Regional Administrator action. See Sec. 648.107(a)(i) through 
(iii).
    (4) Emergency actions. See Sec. 648.107(a)(4).
    (b) [Reserved]
[FR Doc. 99-8470 Filed 4-6-99; 8:45 am]
BILLING CODE 3510-22-F