[Federal Register Volume 64, Number 162 (Monday, August 23, 1999)]
[Proposed Rules]
[Pages 45938-45946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21591]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 990713190-9190-01; I.D. 041599B]
RIN 0648-AH63


Fisheries of the Northeastern United States; Amendment 1 to the 
Fishery Management Plan for the Atlantic Bluefish Fishery

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 1 (Amendment 
1) to the Fishery Management Plan for the Atlantic Bluefish Fishery 
(FMP). This proposed rule would: Implement permit and reporting 
requirements for commercial bluefish vessels, dealers, and party/
charter boats; implement permit requirements for bluefish vessel 
operators; define a Bluefish Monitoring Committee (Committee) that 
would annually recommend the Mid-Atlantic Fishery Management Council 
(Council) and the Atlantic States Marine Fisheries Commission 
(Commission) the total allowable level of landings (TAL) and other 
restrictions necessary to achieve the target fishing mortality rates 
(F) specified in the FMP; establish a framework adjustment process; 
establish a 9-year stock rebuilding schedule; establish a commercial 
quota with allocations to states; and establish a recreational harvest 
limit. Amendment 1 also addresses the new requirements of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 
as amended by the Sustainable Fisheries Act (SFA). Two primary examples 
of these requirements are establishing a rebuilding plan to rebuild the 
bluefish stock from an overfished condition and describing and 
identifying essential fish habitat (EFH) for bluefish. The purpose of 
this rule is to control fishing mortality of bluefish and rebuild the 
stock.

DATES: Comments must be received on or before October 7, 1999.

ADDRESSES: Comments on this proposed rule should be sent to Patricia A. 
Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 
Blackburn Drive, Gloucester, MA 01930. Mark the outside of the 
envelope: ``Comments on Bluefish Plan Proposed Regulations.''
    Comments on the collection-of-information requirements that would 
be established by this proposed rule should be sent to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Washington, DC 20503 (Attention: NOAA Desk Officer) and to NMFS (See 
ADDRESSES).
    Copies of Amendment 1, its Regulatory Impact Review (RIR)/Initial 
Regulatory Flexibility Analysis (IRFA) and the Final Environmental 
Impact Statement (FEIS) are available from Daniel T. Furlong, Executive 
Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal 
Building, 300 South New Street, Dover, DE 19901-6790.

FOR FURTHER INFORMATION CONTACT: Myles Raizin, Fishery Policy Analyst, 
978-281-9104.

SUPPLEMENTARY INFORMATION:

Background

    The FMP was adopted by the Council and the Commission in October 
1989 and approved by NMFS in March 1990. In 1996, the Council and the 
Commission began development of Amendment 1 to address the need to 
broaden the suite of management measures that could be used to reduce 
bluefish fishing mortality.
    The enactment of the SFA in October 1996 further prompted the 
Council to take action to end overfishing on the bluefish stocks. The 
23rd Northeast Stock Assessment Workshop, held in 1997, concluded that 
the Atlantic bluefish stock was at a low level of abundance and was 
overexploited. NMFS declared the bluefish stock to be overfished in its 
1997 and 1998 Reports to Congress on the Status of Fisheries in the 
United States.
    NMFS published a notice of availability for Amendment 1 in the 
Federal Register on April 30, 1999. The public comment period ended 
June 29, 1999. All comments received through June 29, 1999, were 
considered in the approval/disapproval decision on Amendment 1. 
Amendment 1 was partially approved by NMFS on behalf of the Secretary 
of Commerce on July 29, 1999. NMFS disapproved the de minimis provision 
related to state allocations of the commercial quota, the description 
and analysis of fishing communities, and the portion of the EFH section 
assessing the effects of fishing gear on bluefish EFH. Copies of 
Amendment 1 are available from the Council upon request (see 
ADDRESSES).

Overfishing Definition and Rebuilding Schedule

    Amendment 1 revises the definitions of overfishing and overfished 
in the FMP to include an F and biomass (B) component, respectively. 
Overfishing is defined as occurring when F is greater than the maximum 
F threshold, specified as Fmsy = 0.4; and the bluefish stock 
will be considered overfished when biomass is less than the minimum 
biomass threshold, specified as 1/2Bmsy = 118.5 million 
(mil) lb (53,750 mt). The long-term F target would be 90 percent of 
Fmsy and the long-term B target would be Bmsy. 
The Council plans in Amendment 1 to rebuild the bluefish stock to 
Bmsy over a 9-year period. In the first 2 years of 
rebuilding, F would remain at the current level, F=0.51, in years 3 
through 5 it would be reduced to F=0.41, and in years 6 through 9 it 
would be reduced to F=0.31. Once rebuilding is achieved, F will be set 
at F=0.36, and continue to be that value as long as the stock is not 
overfished.

Annual Adjustment Process and Committee

    This rule would define the composition of a Bluefish Monitoring 
Committee as staff representatives from the Mid-Atlantic, New England, 
and South Atlantic Fishery Management Councils, the NMFS Northeast 
Regional Office, the NMFS Northeast Fisheries Science Center, and the 
Commission. The Committee would review annually the best available data 
and recommend to the Council and the Commission commercial (annual 
quota, minimum fish size, and minimum mesh size) and recreational 
(possession and size limits, and seasonal closures) measures designed 
to assure that the target F for bluefish for that given year is not 
exceeded.

EFH for Bluefish

    Section 2.2.2.2 of Amendment 1 describes and identifies EFH for 
bluefish with large areas of oceanic waters identified as EFH for eggs 
and larvae, and major estuaries from Maine through Florida identified 
as EFH for juveniles (generally North Atlantic estuaries from June 
through October, Mid-Atlantic estuaries from May through October, and 
South Atlantic estuaries from March through December). For adults, EFH 
in estuaries is similar to that of juveniles on a seasonal basis, and 
over a wide area of the continental shelf throughout the

[[Page 45939]]

year. The amendment does not identify any habitat areas of particular 
concern for bluefish. While bluefish are pelagic and wide ranging, 
there is some linkage between juvenile bluefish and submerged aquatic 
vegetation (SAV). Certain estuarine fishing gear effects SAV and 
bluefish EFH. The effects of this gear are not analyzed by Amendment 1; 
therefore, NMFS has disapproved this portion of the amendment.

Recreational Harvest Limit and Commercial Quotas

    This proposed rule would establish a procedure to specify a TAL 
divided between the recreational and commercial fisheries. The TAL 
would be set annually, based on the F values specified in the 
rebuilding schedule, and a target F=0.36, once rebuilding is achieved. 
The recreational fishery would have a harvest limit of 83 percent of 
the TAL, and the commercial fishery would have a quota of 17 percent of 
the TAL. These percentages of the TAL are based on the average catch 
composition of the two fisheries from 1981 through 1989. The commercial 
quota would be distributed to the states based on their percentage 
share of commercial landings during this time period as designated in 
Table 48 of Amendment 1 (See also Sec. 648.160(e)(1) of this rule). 
Amendment 1 provides a procedure where the commercial TAL could be set 
higher than 17 percent, up to 10.5 mil lb (4.8 mil kg) (the average 
commercial landings for the period 1991-1996), if the recreational 
fishery is not likely to land its annual allocation, based on a 
projection of the most recently available recreational landings data, 
and provided that the combination of the projected recreational 
landings and commercial quota does not exceed the TAL. The Council 
provided this procedure to ensure that commercial landings would not be 
unduly constrained under low allowable harvest levels and 
proportionally low recreational landings.

1999 Allocations for the Commercial Fishery

    States participating in the bluefish fishery have already taken 
action for 1999 in accordance with the rebuilding schedule of Amendment 
1 through the Commission and their own existing administrative programs 
for managing quotas in the commercial fishery for bluefish. The TAL for 
the bluefish fishery for 1999 is 36.84 mil lb (16.71 mil kg), with 5.93 
mil lb (2.69 mil kg) (17 percent) going to the commercial fishery, and 
30.91 mil lb (14.02 mil kg) (83 percent) going to the recreational 
fishery. There are not enough data for the 1999 recreational fishery at 
this time to warrant increasing the allocation to the commercial 
fishery above 17 percent (as discussed in the aforementioned procedure 
for increasing an annual commercial TAL above 17 percent up to 10.5 mil 
lb (4.8 mil kg)). The proposed state-by-state allocation of the 
commercial quota for 1999, based on the percentage share, is as 
follows:

------------------------------------------------------------------------
                     State                         Pounds     Kilograms
------------------------------------------------------------------------
Maine.........................................       39,802       18,054
New Hampshire.................................       24,675       11,193
Massachusetts.................................      399,876      181,384
Rhode Island..................................      405,316      183,851
Connecticut...................................       75,390       34,197
New York......................................      618,275      280,450
New Jersey....................................      882,078      400,110
Delaware......................................      111,817       50,720
Maryland......................................      178,712       81,064
Virginia......................................      707,240      320,804
North Carolina................................    1,908,731      865,800
South Carolina................................        2,095          950
Georgia.......................................          566          257
Florida.......................................      598,900      271,661
                                               -------------------------
    Totals....................................    5,953,473    2,700,495
------------------------------------------------------------------------

Framework Adjustment Process

    In addition to the annual review and modifications to management 
measures associated with the Committee process, under Amendment 1 and 
the proposed rule, the Council could add or modify management measures 
through a streamlined public review process called a framework 
adjustment. As such, management measures that have been identified in 
the plan could be implemented or adjusted at any time during the year 
following consideration of the measures and associated analyses during 
at least two Council meetings. The recommended management measures then 
could be implemented through a final rule without first publishing a 
proposed rule. The framework process would allow the Council to 
consider gear restrictions, minimum and maximum fish size, permitting 
restrictions, changes in the recreational possession limit, 
recreational and commercial seasons, closed areas to address 
overfishing if it is deemed necessary in the future, description and 
identification of essential fish habitat (EFH) and fishing gear 
management measures that impact EFH, and description and identification 
of habitat areas of particular concern.

Permit and Reporting Requirements

    This rule proposes to add bluefish permit and reporting 
requirements that mirror similar requirements for other Northeast 
fisheries. These measures include new permitting requirements for 
Federal commercial bluefish vessels, bluefish charter and party boats, 
bluefish dealers, and bluefish vessel operators, and new reporting 
requirements for bluefish dealers and owners or operators of commercial 
bluefish vessels and bluefish charter and party boats. In addition to 
logbook reporting, dealers would be required to participate in the 
Northeast Interactive Voice Reporting (IVR) system to assure timely 
reports for purposes of quota monitoring.
    Implementation of a commercial bluefish vessel permitting system 
represents a modification of the present system where individuals, and 
not vessels, are issued a permit to sell bluefish. Under the current 
bluefish regulations, any person selling a bluefish harvested from the 
exclusive economic zone is identified as a commercial fisherman and 
must have a commercial fishing permit issued by a state or by NMFS that 
allows the sale of bluefish (i.e., the individual is licensed). The new 
management measure would allow the sale of bluefish harvested in 
Federal waters only from vessels issued a Federal permit. The Council 
believes that the bulk of the bluefish that enters the market is 
harvested by commercial vessels. However, at Council and committee 
meetings, it has been noted that certain individuals, such as those who 
fished from a vessel they did not own or operate and then sold their 
catch, would be affected by the changeover to a vessel permit. The 
individuals would be subject to the recreational possession limit and 
would no longer be able to sell bluefish.

Management Measure Returned to the Council

    Pursuant to section 304(b)(1)(B) of the Magnuson-Stevens Act, NMFS 
returned to the Council the de minimus provision contained in Amendment 
1 and disapproved the provision on July 29, 1999. NMFS determined that 
this measure is inconsistent with national standard 1 of the Magnuson-
Stevens Act, which requires that management measures prevent 
overfishing. This provision lacks any clear obligation on the part of 
the de minimus state to close its commercial bluefish fishery once its 
quota is harvested and could result in overfishing of the bluefish 
stock. If de minimus status does not, at the very least, require a 
state to impose landing constraints, the provision may encourage owners 
of vessels that have not traditionally landed in that state to land 
amounts of bluefish much greater than they could land in their home 
port states. This could result in the state's de minimus quota being 
rapidly exceeded

[[Page 45940]]

and compound the overfishing situation if a de minimus state is not 
required to close its fishery when its de minimus quota is harvested. 
NMFS described its determination on this measure in a letter that it 
sent to the Council. As indicated in section 304(b)(2) of the Magnuson-
Stevens Act, the Council may revise this measure and submit it to the 
Secretary of Commerce for reevaluation under section 304(b)(1) of the 
Magnuson-Stevens Act.

Classification

    NMFS determined on July 29, 1999, that the amendment that this rule 
would implement is consistent with the Magnuson-Stevens Act and other 
applicable laws, with the exception of the de minimus provision, the 
fishing communities section, and the portion of the EFH section dealing 
with the effect of fishing gear on bluefish EFH. NMFS, in making that 
determination, took into account the data, views, and comments received 
on Amendment 1 through June 29, 1999.
    The Council prepared an initial regulatory flexibility analysis 
(IRFA) that describes the impact this proposed rule, if adopted, would 
have on small entities. Reasons why the action is considered, as well 
as the objectives and legal basis of the rule are described in the 
preamble to this rule and are not repeated here. The analyses of the 
impacts on small entities attributable to the preferred and other 
alternative management measures found in Amendment 1 are discussed 
below. Since the final rule implementing Amendment 1 would not become 
effective until the fall of 1999, this summary discusses impacts to 
small entities in the year 2000, the projected first full year under 
the amendment. An assumption of constant prices is applied throughout 
the summary. It is also assumed that the 2000 fishery will be similar 
to 1997 in terms of commercial and recreational landings.

Impact of the Commercial Vessel Permit

    NMFS recently completed an analysis of NMFS bluefish operator 
permit holder files. In the full permit year of 1998, there were 1,126 
Federal bluefish permits issued to individuals. The Federal individual 
bluefish permit file was merged with the vessel owner database for 
Federal permits by permit holder name to identify the number of Federal 
bluefish individual permits associated with vessel ownership. It is 
estimated that 190 permits held by individuals are associated with 
vessel ownership. As such, these individuals would be allowed to 
continue to sell bluefish caught from their vessels, as long as they 
obtain a bluefish vessel permit. Over 32 percent (305) of the 
individuals with no vessel status (936) claimed that 5-percent or more 
of their annual income is derived from the sale of bluefish. Therefore, 
the Council concluded that the proposed action could result in a 
significant economic impact (result in a 5 percent or more revenue 
loss) for a substantial (20 percent or more) number of small entities 
(participants). It is unclear how many of these individuals would make 
the required capital investment necessary to purchase a vessel, which 
would allow them to apply for a bluefish vessel permit. NMFS seeks 
public comment on this issue.
    Also, it is possible that some of these individuals took party and 
charter recreational trips with the sole purpose of landing bluefish to 
be sold commercially. There is no indication that the implementation of 
this measure would lead to any substantive decline in the demand for 
party and charter boat trips. Anglers that fish from party and charter 
boats fish for multiple species, and only a few anglers would take 
recreational trips to target solely bluefish to be sold commercially.
    The Council, in Amendment 1, acknowledges that since there have 
been no mandatory reporting requirements in the past for this fishery, 
it is not possible to determine the number of individuals holding 
bluefish permits who actually land and sell bluefish. The individual 
permit holders affected by this rule may include individuals who 
exceeded the bag limit to stock their freezers or feed the poor in 
their communities, for example. In addition, crew members of party 
boats have supplemented their wages by selling bluefish under the 
individual permit. Since arrangements between owner/operators and their 
crew differ individually and by region, it is difficult to ascertain 
the number of crew likely to be affected.
    The Council assumed that individuals who were not registered as 
owners of federally permitted vessels did not own a vessel and would 
not qualify for a vessel permit under Amendment 1. However, many of 
these individuals probably own vessels that are used for recreational 
fishing only. This is especially significant, given that the majority 
of the individuals who currently hold individual commercial permits 
reside in New Jersey, a state that does not issue its own commercial 
permit, but relies on the Federal individual commercial permit. Since 
New Jersey does not regulate commercial vessels harvesting bluefish 
through permits, owners of recreational boats would need only to obtain 
a Federal individual commercial permit to land and retain more than the 
bag limit. Therefore, the Council's assumption regarding the percentage 
of income claimed and the assumption that those who do not own a 
federally permitted vessel do not, indeed, own a vessel, likely 
underestimates the number of individuals who would qualify for Federal 
commercial vessel permits if this proposed rule is implemented. 
Notwithstanding the above discussion, it is likely that some portion of 
the number of individual permit holders, although immeasurable, may be 
vulnerable to economic impacts as a result of this action. The Council 
notes that negative economic impacts on small entities would be 
mitigated by potential increases in harvest associated with a rebuilt 
bluefish stock.
    The Council also considered the status quo alternative of 
continuing the issuance of permits to individuals. Although this would 
mitigate the economic impacts of the proposed vessel permitting scheme, 
the Council notes that under individual permitting, the monitoring of 
the quota system could potentially be undermined, because it may be 
difficult to contact individuals with timely notifications or obtain 
information required for quota reports. Implementation and enforcement 
of commercial closures and commercial minimum fish sizes that are 
essential to managing the fishery would be compromised by the continued 
permitting of individuals. Furthermore, harvesting capacity or fishing 
power could not be evaluated under a regime of individual permits.

Impacts of Quota Allocation

    The Council considered, but rejected, several time periods other 
than 1981-1989, upon which to base allocation of the total annual quota 
between the commercial and recreational sectors, and state-by-state 
allocations of the commercial quota. Other time periods considered were 
1981-1993 and 1985-1989.
    The Council chose the time period 1981-1989 for the preferred 
alternative because it reflects the composition of the overall fishery 
in a period of relatively high stock abundance and stability. 
Furthermore, the Council believed that basing the allocation on 
proportional catch after 1989 would be biased, since restrictions of 10 
fish per individual angler were introduced by the FMP in 1990, while no 
restrictions were placed on the commercial fishery, e.g., there are no 
trip limits, minimum fish size, or minimum mesh size.

[[Page 45941]]

    In 1997, commercial landings accounted for 39 percent of total 
landings. The commercial allocation (17 percent) under the preferred 
alternative would represent a substantial reduction relative to the 
1997 landings. The Council, recognizing this disparity, decided to 
allow the commercial quota to be increased up to 10.5 mil lb (4.76 mil 
kg), the average commercial landings for the period 1990-1997, under 
the following condition--if 17 percent of the TAL (the commercial 
sector) for a given year is initially calculated to be less than 10.5 
mil lb (4.76 mil kg), then the quota could be increased from the level 
associated with 17 percent of the TAL up to 10.5 mil lb (4.76 mil kg).
    The overall quota for 2000, per the preferred rebuilding schedule, 
would be 43.08 mil lb (19.54 mil kg), resulting in allocations of 7.32 
mil lb (3.32 mil kg) for the commercial fishery and 35.80 mil lb (16.23 
mil kg) for the recreational fishery. Using 1997 data (9.305 mil lb 
(4.21 mil kg)) for comparison, commercial vessels in the 2000 fishery 
could expect to experience increased revenues, at least in the short 
term, since it is assumed that the commercial fishery would be able to 
harvest 10.5 mil lb (4.76 mil kg). This is based on the underlying 
assumption that the recreational fishery would not be projected to take 
more than 32.62 mil lb (14.80 mil kg), given that landings for the 
recreational fishery have been declining since 1991 and were only 14.9 
mil lb (6.76 mil kg) in 1997.
    In the absence of an unpredicted surge in recreational landings in 
1999, 10.5 mil lb (4.76 mil kg) would be allocated to the commercial 
fishery (7.32 mil lb (3.32 mil kg) specified, plus 3.18 mil lb (1.44 
mil kg) from the projected surplus recreational allocation). It should 
be noted that in the event recreational landings are projected to be 
more than 35.80 mil lb (16.23 mil kg), the 2000 commercial quota would 
be 7.32 mil lb (3.32 mil kg), and commercial bluefish fishermen would 
face economic impacts associated with a 21-percent reduction of 
commercial landings from 9.3 mil lb. (4.21 mil kg) in 1997.
    Using the 1981-93 and 1985-89 periods for analyses would yield the 
same result as above, if the assumption that the commercial sector 
would be able to harvest 10.5 mil lb (4.76 mil kg) remains valid. The 
1981-93 period would result in a 19/81 percent commercial/recreational 
split, while the 1985-89 period would result in an 18/82 percent split.
    Impacts to individual state quotas from any of the three 
alternative quota allocations would also be positive, assuming that the 
commercial allocation for the 2000 fishery is specified at 10.5 mil lb 
(4.76 mil kg). The difference in revenues going to the various states 
from the distribution of quota is negligible when the preferred period 
is compared to the two alternative periods. This falls within a range 
of 0.003 to 2.300 percent.
    There would be no substantial short-term economic impact on 
businesses that service the recreational fishery (e.g., marina, bait 
shops) from the recreational quota. The recreational fishery could take 
up to 35.80 mil lb (16.23 mil kg) in 2000, while estimated harvest in 
1997 was only 14.9 mil lb (6.76 mil kg) in 1997, leaving a projected 
surplus of 20.9 mil lb (9.48 mil kg).

Impact of Permitting and Reporting Requirements

    The alternatives concerning vessel and dealer permitting and 
reporting would have no effect on revenues and would represent a minute 
portion of the cost of doing business. The Council estimated that 249 
new vessel applicants would each spend $7.50 to apply for a permit and 
$20.00 per year for reporting requirements. No special knowledge is 
required to fill out the permit application.

Impact of a Commercial Minimum Fish Size

    With the exception of the pound net fishery and long haul seine 
fishery in North Carolina, the preferred alternative of a 12-inch 
(30.48 cm) minimum fish size would not have a significant impact on 
revenues. Data suggest that from 1987-1996 only 1 percent of all fish 
taken by all gear types in the commercial fishery were less than 12 
inches (30.48 cm). There could be significant losses in revenue to the 
pound net fishery and the long haul seine fishery in North Carolina 
where 64.2 and 53.7 percent of the total bluefish catch, respectively, 
may be lost due to this minimum fish size restriction. However, the 
reduction in gross revenue is not expected to be significant for these 
gear types in terms of their gross revenue from all fishing activities. 
Although the effect of other minimum fish sizes is not known, it can be 
construed that the greater the minimum fish size, the larger the 
impact.

Impact of the Recreational Minimum Size Limit

    The recreational minimum size limit of 12 inches may effect 
revenues earned by party/charter boats. The decrease in revenues would 
be attributable to anglers' perception of the fishing experience in 
regard to keeping or releasing small fish and how this relates to 
demand for party/charter boat trips. The greatest impact would be in 
Rhode Island, Connecticut, and New York, where the minimum size limit 
would impact established ``snapper'' fisheries. As alternative sizes 
increase, the economic effect would be diminished. However, with 
limited data, it is not possible to project at what size the negative 
impact would dissipate.

Impacts of Rebuilding Strategies

    The Council predicts that the preferred and other alternative 
rebuilding strategies will have positive long-run economic impacts. In 
the short term, the impact on revenues for the 2000 fishery for all 
alternative rebuilding strategies depends on the ability to transfer 
quota from the recreational to the commercial fishery. Since the 
Council has decided to retain a quota of 5.95 mil lb for the commercial 
fishery in 1999, any transfers above the levels discussed in the 
previous section on quota allocation would have a positive economic 
impact on the commercial fishery in the year 2000.
    The Council prepared a FEIS for Amendment 1. A notice of 
availability for the FEIS was published in the Federal Register on June 
25, 1999 (64 FR 34235). A copy of the FEIS may be obtained from the 
Council (see ADDRESSES).
    This rule has been determined to be significant for the purposes of 
Executive Order 12866.
    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 Paperwork Reduction Act (PRA), unless that 
collection of information displays a currently valid OMB control 
number.
    This rule contains collection-of-information requirements subject 
to the PRA. These collection-of-information requirements have been 
submitted to the Office of Management and Budget for approval. The 
public reporting burden for vessel logbooks is estimated to average 12 
minutes per response. The reporting burden for dealer reports is 
estimated to average 4 minutes for the IVR system and estimated to 
average 2 minutes for completing NOAA Form 30-80. The reporting burden 
for new requirements is estimated to be 30 minutes for vessel and 
charter/party vessel permit applications, 12 minutes for dealer permit 
applications, 45 minutes for vessel identification, 2 minutes for 
completing the employment

[[Page 45942]]

section of the Processed Products Report, and 60 minutes for states to 
apply for a transfer of commercial bluefish quota. These estimates 
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 this proposed 
collection of information is 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. Please 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.

    Dated: August 16, 1999.
Andrew A. Rosenberg,
Deputy 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. 648.2, the definition for ``Bluefish Committee'' is 
removed and a new definition for ``Bluefish Monitoring Committee'' is 
added in alphabetical order to read as follows:


Sec. 648.2  Definitions.

* * * * *
    Bluefish Monitoring Committee means a committee made up of staff 
representatives of the Mid-Atlantic Fishery Management Council, the New 
England Fishery Management Council, and South Atlantic Fishery 
Management Council, the NMFS Northeast Regional Office, the NMFS 
Northeast Fisheries Science Center, and the Commission. The Mid-
Atlantic Fishery Management Council's Executive Director or a designee 
chairs the committee.
* * * * *
    3. In Sec. 648.4, the section heading and paragraphs (a)(8), (b) 
and (c)(2)(i) are revised, and paragraph (c)(3) is removed, to read as 
follows:


Sec. 648.4  Vessel permits.

    (a) * * *
    (8) Atlantic bluefish vessels--(i) Commercial. Any vessel of the 
United States including party and charter boats not carrying passengers 
for hire, that fishes for, possesses, or lands Atlantic bluefish in or 
from the EEZ in excess of the recreational possession limit specified 
at Sec. 648.164 must have been issued and carry on board a valid 
commercial bluefish vessel permit.
    (ii) Party and charter vessels. Any party or charter boat must have 
been issued and carry on board a valid party or charter boat a permit 
to fish for bluefish if it is carrying passengers for hire. Such vessel 
must observe the possession limits established pursuant to 
Sec. 648.164, and the prohibitions on sale specified in Sec. 648.14(w).
    (b) Permit conditions. Any person who applies for a fishing permit 
under this section must agree as a condition of the permit that the 
vessel and the vessel's fishing activity, catch, and pertinent gear 
(without regard to whether such fishing occurs in the EEZ or landward 
of the EEZ, and without regard to where such fish or gear are 
possessed, taken or landed), are subject to all requirements of this 
part, unless exempted from such requirements under this part. All such 
fishing activities, catch, and gear will remain subject to all 
applicable state requirements. Except as otherwise provided in this 
part, if a requirement of this part and a management measure required 
by a state or local law differ, any vessel owner permitted to fish in 
the EEZ for any species managed under this part must comply with the 
more restrictive requirement. Owners and operators of vessels fishing 
under the terms of a summer flounder moratorium, scup moratorium, black 
sea bass moratorium or bluefish commercial vessel permit must also 
agree not to land summer flounder, scup, black sea bass, or bluefish, 
respectively, in any state after NMFS has published a notification in 
the Federal Register stating that the commercial quota for that state 
or period has been harvested and that no commercial quota is available 
for the respective species. A state not receiving an allocation of 
summer flounder, scup, black sea bass, or bluefish, either directly or 
through a coastwide allocation, is deemed to have no commercial quota 
available. Owners or operators fishing for surf clams and ocean quahogs 
within waters under the jurisdiction of any state that requires cage 
tags are not subject to any conflicting Federal minimum size or tagging 
requirements. If a surf clam and ocean quahog requirement of this part 
differs from a surf clam and ocean quahog management measure required 
by a state that does not require cage tagging, any vessel owners or 
operators permitted to fish in the EEZ for surf clams and ocean quahogs 
must comply with the more restrictive requirement while fishing in 
state waters. However, surrender of a surf clam and ocean quahog vessel 
permit by the owner by certified mail addressed to the Regional 
Administrator allows an individual to comply with the less restrictive 
state minimum size requirement, as long as fishing is conducted 
exclusively within state waters. If the commercial black sea bass quota 
for a period is harvested and the coast is closed to the possession of 
black sea bass north of 35 deg.15.3' N. lat., any vessel owners that 
hold valid commercial permits for both the black sea bass and the NMFS 
Southeast Region Snapper-Grouper fisheries may surrender their 
moratorium Black Sea Bass permit by certified mail addressed to the 
Regional Administrator and fish pursuant to their Snapper-Grouper 
permit, as long as fishing is conducted exclusively in waters, and 
landings are made, south of 35 deg.15.3' N. lat. A moratorium permit 
for the black sea bass fishery that is voluntarily relinquished or 
surrendered will be reissued upon the receipt of the vessel owner's 
written request after a minimum period of 6 months from the date of 
cancellation.
    (c) * * *
    (2) * * * (i) An application for a permit issued under this 
section, in addition to the information specified in paragraph (c)(1) 
of this section, also must contain at least the following and any thing 
else required by the Regional Administrator: Vessel name; owner name or 
name of the owner's authorized representative, mailing address, and 
telephone number; USCG documentation number and a copy of the vessel's 
current USCG documentation or, for a vessel not required to be 
documented under 46 U.S.C., the vessel's state registration number and 
a copy of the current state registration; a copy of the vessel's 
current party/charter boat license (if applicable); home port and 
principal port of landing; length overall; GRT; NT; engine horsepower; 
year the vessel was built; type of construction; type of propulsion; 
approximate fish hold

[[Page 45943]]

capacity; type of fishing gear used by the vessel; number of crew; 
number of party or charter passengers licensed to be carried (if 
applicable); permit category; if the owner is a corporation, a copy of 
the current Certificate of Incorporation or other corporate papers 
showing the date of incorporation and the names of the current officers 
of the corporation, and the names and addresses of all shareholders 
owning 25 percent or more of the corporation's shares; if the owner is 
a partnership, a copy of the current Partnership Agreement and the 
names and addresses of all partners; if there is more than one owner, 
the names of all owners having a 25-percent interest or more; and 
permit number of any current or, if expired, previous Federal fishery 
permit issued to the vessel.
* * * * *
    4. In Sec. 648.5, the first sentence of 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, monkfish, 
mackerel, squid, butterfish, scup, black sea bass, or bluefish, 
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. * * *
* * * * *
    5. In Sec. 648.6, paragraph (a) is revised to read as follows:


Sec. 648.6  Dealer/processor permits.

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


Sec. 648.7  Recordkeeping and reporting requirements.

    (a) * * *
    (1) * * *
    (i) All summer flounder, scup, black sea bass, Atlantic sea 
scallop, NE multispecies, monkfish, Atlantic mackerel, squid, 
butterfish, or bluefish dealers must provide: Dealer name and mailing 
address; dealer permit number; name and permit number or name and hull 
number (USCG documentation number or state registration number, which 
ever is applicable) of vessels from which fish are landed or received; 
trip identifier for a trip from which fish are landed or received; 
dates of purchases; pounds by species (by market category, if 
applicable); price per pound by species (by market category, if 
applicable); port landed; signature of person supplying the 
information; and any other information deemed necessary by the Regional 
Administrator. * * *
* * * * *
    (3) * * *
    (i) Summer flounder, scup, black sea bass, Atlantic sea scallop, NE 
multispecies, Atlantic mackerel, squid, butterfish, and bluefish 
dealers must complete the ``Employment Data'' section of the Annual 
Processed Products Report; completion of the other sections of that 
form is voluntary. * * *
* * * * *
    (b) * * *
    (1) * * *
    (i) Owners or operators of vessels issued a summer flounder, scup, 
black sea bass, Atlantic sea scallop, NE multispecies, Atlantic 
mackerel, squid, butterfish, or bluefish permit. The owner or operator 
of any vessel issued a permit for summer flounder, scup, black sea 
bass, Atlantic sea scallops, NE multispecies, Atlantic mackerel, squid, 
butterfish, or bluefish must maintain on board the vessel, and submit, 
an accurate daily fishing log report for all fishing trips, regardless 
of species fished for or taken, on forms supplied by or approved by the 
Regional Administrator. * * *
* * * * *
    7. In Sec. 648.11, the first sentence of paragraph (a) and 
paragraph (e) are revised to read as follows:


Sec. 648.11  At-sea sampler/observer coverage.

    (a) The Regional Administrator may request any vessel holding a 
permit for Atlantic sea scallops, or NE multispecies, or monkfish, or 
Atlantic mackerel, squid, butterfish, or scup, or black sea bass, or 
bluefish, or a moratorium permit for summer flounder, to carry a NMFS-
approved sea sampler/observer. * * *
* * * * *
    (e) The owner or operator of a vessel issued a summer flounder 
moratorium permit, or a scup moratorium permit, or a black sea bass 
moratorium permit, or a bluefish permit, if requested by the sea 
sampler/observer also must:
    (1) Notify the sea sampler/observer of any sea turtles, marine 
mammals, summer flounder, scup, or black sea bass, or bluefish, or 
other specimens taken by the vessel.
    (2) Provide the sea sampler/observer with sea turtles, marine 
mammals, summer flounder, scup, or black sea bass, or bluefish, or 
other specimens taken by vessel.
* * * * *
    8. In Sec. 648.12, the introductory text is revised to read as 
follows:


Sec. 648.12  Experimental fishing.

    The Regional Administrator may exempt any person or vessel from the 
requirements of subparts B (Atlantic mackerel, squid, and butterfish), 
D (sea scallop), E (surf clam and ocean quahog), F (NE multispecies), G 
(summer flounder), H (scup), I (black sea bass), or J (bluefish) of 
this part for the conduct of experimental fishing beneficial to the 
management of the resources or fishery managed under that subpart. The 
Regional Administrator shall consult with the Executive Director of the 
Council regarding such exemptions for the Atlantic mackerel, squid, and 
butterfish, the summer flounder, the scup, the black sea bass, and the 
bluefish fisheries.
* * * * *
    9. In Sec. 648.14, paragraphs (w)(1) through (w)(5) are revised and 
paragraphs (w)(6), (w)(7), and (x)(8) are added to read as follows:


Sec. 648.14  Prohibitions.

* * * * *
    (w) * * *
    (1) Possess in or harvest from the EEZ, Atlantic bluefish, in 
excess of the daily possession limit found at Sec. 648.164, unless the 
vessel is issued a valid Atlantic bluefish vessel permit under 
Sec. 648.4(a)(8) and the permit is on board the vessel and has not been 
surrendered, revoked, or suspended.
    (2) Purchase, possess or receive for a commercial purpose, or 
attempt to purchase, possess, or receive for a commercial purpose, in 
the capacity of a dealer, except for transport on land, Atlantic 
bluefish taken from a fishing vessel unless issued, and in possession 
of, a valid Atlantic bluefish fishery dealer permit issued under 
Sec. 648.6(a).
    (3) Sell, barter, trade or transfer, or attempt to sell, barter, 
trade or otherwise transfer, other than for transport, Atlantic 
bluefish, unless the dealer or transferee has a dealer permit issued 
under Sec. 648.6(a).
    (4) Land Atlantic bluefish for sale in a state after the effective 
date of the notification in the Federal Register, pursuant to 
Sec. 648.161(b), which notifies permit holders that the commercial 
quota is no longer available in that state.

[[Page 45944]]

    (5) Carry passengers for hire, or carry more than three crew 
members for a charter boat or five crew members for a party boat, while 
fishing commercially pursuant to an Atlantic bluefish permit issued 
under Sec. 648.4(a)(8).
    (6) Land Atlantic bluefish for sale after the effective date of the 
notification in the Federal Register pursuant to Sec. 648.161(a), which 
notifies permit holders that the Atlantic bluefish fishery is closed.
    (7) Sell or transfer bluefish harvested in or from the EEZ unless 
the vessel has been issued a valid commercial permit pursuant to 
Sec. 648.4(a)(8)(i).
    (x) * * *
    (8) All bluefish possessed on board a party or charter vessel 
issued a permit under Sec. 648.4(a)(8) are deemed to have been 
harvested from the EEZ.
    10. Subpart J is revised to read as follows:

Subpart J--Management Measures for the Atlantic Bluefish Fishery

Sec.
648.160 Catch quotas and other restrictions.
648.161 Closures.
648.162 Minimum fish sizes.
648.163 Gear restrictions.
648.164 Possession restrictions.
648.165 Framework specifications.

Subpart J--Management Measures for the Atlantic Bluefish Fishery


Sec. 648.160  Catch quotas and other restrictions.

    The fishing year is from January 1 through December 31.
    (a) Annual review. The Bluefish Monitoring Committee will review 
the following data, subject to availability, on or before August 15 of 
each year to recommend the total allowable level of landings (TAL) and 
other restrictions necessary to achieve a target fishing mortality rate 
(F) of 0.51 in 1999 and 2000; a target F of 0.41 in 2001, 2002, and 
2003; a target F of 0.31 in 2004, 2005, 2006, and 2007; and a target F 
of 0.36 thereafter: Commercial and recreational catch data; current 
estimates of fishing mortality; stock status; recent estimates of 
recruitment; virtual population analysis results; levels of 
noncompliance by fishermen or individual states; impact of size/mesh 
regulations; sea sampling data; impact of gear other than otter trawls 
and gill nets on the mortality of bluefish; and any other relevant 
information.
    (b) Recommended measures. Based on the annual review, the Bluefish 
Monitoring Committee shall recommend to the Coastal Migratory Committee 
of the Council and the Commission the following measures to assure that 
the F specified in paragraph (a) of this section will not be exceeded:
    (1) A TAL set from a range of zero to the maximum allowed to 
achieve the specified F.
    (2) Commercial minimum fish size.
    (3) Minimum mesh size.
    (4) Recreational possession limit set from a range of zero to 20 
bluefish to achieve the specified F.
    (5) Recreational minimum fish size.
    (6) Recreational season.
    (7) Restrictions on gear other than otter trawls and gill nets.
    (c) Allocation of the TAL--(1) Recreational harvest limit. The 
recreational fishery shall be allocated 83 percent of the TAL as a 
harvest limit.
    (2) Commercial quota. The commercial fishery shall be allocated 17 
percent of the TAL as a quota. If 17 percent of the TAL is less than 
10.5 mil lb (4.8 mil kg), and the recreational fishery is not projected 
to land 83 percent of the TAL for the upcoming year, the commercial 
fishery may be allocated up to 10.5 mil lb (4.8 mil kg) as its quota, 
provided that the combination of the projected recreational landings 
and the commercial quota does not exceed the TAL.
    (d) Annual fishing measures. The Council's Coastal Migratory 
Committee shall review the recommendations of the Bluefish Monitoring 
Committee. Based on these recommendations and any public comment, the 
Coastal Migratory Committee shall recommend to the Council measures 
necessary to assure that the applicable specified F will not be 
exceeded. The Council shall review these recommendations and, based on 
the recommendations and any public comment, recommend to the Regional 
Administrator by September 1 measures necessary to assure that the 
applicable specified F will not be exceeded. The Council's 
recommendations must include supporting documentation, as appropriate, 
concerning the environmental, economic, and social impacts of the 
recommendations. The Regional Administrator shall review these 
recommendations and any recommendations of the Commission. After such 
review, the Regional Administrator will publish a proposed rule in the 
Federal Register on or about October 15 to implement a coastwise 
commercial quota and recreational harvest limit and additional 
management measures for the commercial fishery, and will publish a 
proposed rule in the Federal Register on or about February 15 to 
implement additional management measures for the recreational fishery, 
if received from the Council by January 1, if he/she determines that 
such measures are necessary to assure that the applicable specified F 
will not be exceeded. After considering public comment, the Regional 
Administrator will publish a final rule in the Federal Register.
    (e) Distribution of annual quota. (1) The annual commercial quota 
will be distributed to the states, based upon the following 
percentages:

                     Annual Commercial Quota Shares
------------------------------------------------------------------------
                           State                              Percentage
------------------------------------------------------------------------
ME.........................................................       0.6685
NH.........................................................       0.4145
MA.........................................................       6.7167
RI.........................................................       6.8081
CT.........................................................       1.2663
NY.........................................................      10.3851
NJ.........................................................      14.8162
DE.........................................................       1.8782
MD.........................................................       3.0018
VA.........................................................      11.8795
NC.........................................................      32.0608
SC.........................................................       0.0352
GA.........................................................       0.0095
FL.........................................................      10.0597
                                                            ------------
    Total..................................................     100.0000
------------------------------------------------------------------------

    Note: The ``Total'' does not actually add up to 100.0000 because of 
rounding error.

    (2) All bluefish landed for sale in a state shall be applied 
against that state's annual commercial quota, regardless of where the 
bluefish were harvested. Any overages of the commercial quota landed in 
any state will be deducted from that state's annual quota for the 
following year.
    (f) Quota transfers and combinations. Any state implementing a 
state commercial quota for bluefish may request approval from the 
Regional Administrator to transfer part or all of its annual quota to 
one or more other states. Two or more states implementing a state 
commercial quota for bluefish may request approval from the Regional 
Administrator to combine their quotas, or part of their quotas, into an 
overall regional quota. Requests for transfer or combination of 
commercial quotas for bluefish must be made by individual or joint 
letter(s) signed by the principal state official with marine fishery 
management responsibility and expertise, or his/her previously named 
designee, for each state involved. The letter(s) must certify that all 
pertinent state requirements have been met and identify the states 
involved and the amount of quota to be transferred or combined.
    (1) Within 10 working days following the receipt of the letter(s) 
from the states involved, the Regional Administrator shall notify the 
appropriate state

[[Page 45945]]

officials of the disposition of the request. In evaluating requests to 
transfer a quota or combine quotas, the Regional Administrator shall 
consider whether:
    (i) The transfer or combination would preclude the overall annual 
quota from being fully harvested.
    (ii) The transfer addresses an unforeseen variation or contingency 
in the fishery.
    (iii) The transfer is consistent with the objectives of the FMP and 
Magnuson-Stevens Act.
    (2) The transfer of quota or the combination of quotas will be 
valid only for the calendar year for which the request was made and 
will be effective when the notice of approval of the transfer or 
combination has been published in the Federal Register.
    (3) A state may not submit a request to transfer quota or combine 
quotas if a request to which it is party is pending before the Regional 
Administrator. A state may submit a new request when it receives notice 
that the Regional Administrator has disapproved the previous request or 
when notice of the approval of the transfer or combination has been 
published in the Federal Register.
    (4) If there is a quota overage among states involved in the 
combination of quotas at the end of the fishing year, the overage will 
be deducted from the following year's quota for each of the states 
involved in the combined quota. The deduction will be proportional, 
based on each state's relative share of the combined quota for the 
previous year. A transfer of quota or combination of quotas does not 
alter any state's percentage share of the overall quota specified in 
paragraph (e)(1) of this section.
    (g) Based upon any changes in the landings data available from the 
states for the base years 1981-89, the Commission and the Council may 
recommend to the Regional Administrator that the states' shares 
specified in paragraph (e)(1) of this section be revised. The Council's 
and the Commission's recommendation must include supporting 
documentation, as appropriate, concerning the environmental and 
economic impacts of the recommendation. The Regional Administrator 
shall review the recommendation of the Commission and the Council. 
After such review, NMFS will publish a proposed rule in the Federal 
Register to implement a revision in the state shares. After considering 
public comment, NMFS will publish a final rule in the Federal Register 
to implement the changes in allocation.


Sec. 648.161  Closures.

    (a) EEZ closure. The Regional Administrator shall close the EEZ to 
fishing for bluefish by commercial vessels for the remainder of the 
calendar year by publishing notification in the Federal Register if he/
she determines that the inaction of one or more states will cause the 
applicable F specified in Sec. 648.160(a) to be exceeded, or if the 
commercial fisheries in all states have been closed. The Regional 
Administrator may reopen the EEZ if earlier inaction by a state has 
been remedied by that state, or if commercial fisheries in one or more 
states have been reopened without causing the applicable specified F to 
be exceeded.
    (b) State quotas. The Regional Administrator will monitor state 
commercial quotas based on dealer reports and other available 
information and shall determine the date when a state commercial quota 
will be harvested. The Regional Administrator shall publish 
notification in the Federal Register advising a state that, effective 
upon a specific date, its commercial quota has been harvested and 
notifying vessel and dealer permit holders that no commercial quota is 
available for landing bluefish in that state.


Sec. 648.162  Minimum fish sizes.

    If the Council determines through its annual review or framework 
adjustment process that minimum fish sizes are necessary to assure that 
the fishing mortality rate is not exceeded, or to attain other FMP 
objective, such measures will be enacted through the procedure 
specified in Sec. 648.160(d) or Sec. 648.165.


Sec. 648.163  Gear restrictions.

    If the Council determines through its annual review or framework 
adjustment process that gear restrictions are necessary to assure that 
the fishing mortality rate is not exceeded, or to attain other FMP 
objectives, such measures will be enacted through the procedure 
specified in Sec. 648.160(d) or Sec. 648.165.


Sec. 648.164  Possession restrictions.

    (a) No person shall possess more than 10 bluefish in, or harvested 
from, the EEZ unless that person is the owner or operator of a fishing 
vessel issued a bluefish commercial permit or is issued a bluefish 
dealer permit. Persons aboard a vessel that is not issued a bluefish 
commercial permit are subject to this possession limit. The owner, 
operator, and crew of a charter or party boat issued a bluefish 
commercial permit are not subject to the possession limit when not 
carrying passengers for hire and when the crew size does not exceed 
five for a party boat and three for a charter boat.
    (b) Bluefish harvested by vessels subject to the possession limit 
with more than one person on board may be pooled in one or more 
containers. Compliance with the daily possession limit will be 
determined by dividing the number of bluefish on board by the number of 
persons on board, other than the captain and the crew. If there is a 
violation of the possession limit on board a vessel carrying more than 
one person, the violation shall be deemed to have been committed by the 
owner and operator.


Sec. 648.165  Framework specifications.

    (a) Within season management action. The Council may, at any time, 
initiate action to add or adjust management measures if it finds that 
action is necessary to meet or be consistent with the goals and 
objectives of the Bluefish FMP.
    (1) Adjustment process. After a management action has been 
initiated, the Council shall develop and analyze appropriate management 
actions over the span of at least two Council meetings. The Council 
shall provide the public with advance notice of the availability of 
both the proposals and the analysis and the opportunity to comment on 
them prior to and at the second Council meeting. The Council's 
recommendation 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 season, closed areas, commercial season, description and 
identification of essential fish habitat (EFH), fishing gear management 
measures to protect EFH, designation of habitat areas of particular 
concern within EFH, and any other management measures currently 
included in the FMP.
    (2) Council recommendation. After developing management actions and 
receiving public testimony, the Council shall make a recommendation to 
the Regional Administrator. The Council's recommendation must include 
supporting rationale and, 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 the 
Council recommends

[[Page 45946]]

that the management measures should be issued as a final rule, the 
Council 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 regulations 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 Council's recommended management measures;
    (iii) Whether there is an immediate need to protect the resource; 
and
    (iv) Whether there will be a continuing evaluation of management 
measures adopted following their implementation as a final rule.
    (3) Action by NMFS. If the Council's recommendation to NMFS 
includes adjustments or additions to management measures and:
    (i) If NMFS concurs with the Council'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, then the measures will be issued as a final 
rule in the Federal Register.
    (ii) If NMFS concurs with the Council's recommendation and 
determines that the recommended management measures should be published 
first as a proposed rule, then the measures will be published as a 
proposed rule in the Federal Register. After additional public comment, 
if NMFS concurs with the Council's recommendation, then the measures 
will be issued as a final rule in the Federal Register.
    (iii) If NMFS does not concur, then the Council will be notified in 
writing of the reasons for the non-concurrence.
    (b) Emergency action. 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.

[FR Doc. 99-21591 Filed 8-20-99; 8:45 am]
BILLING CODE 3310-22-P