[Federal Register Volume 64, Number 206 (Tuesday, October 26, 1999)]
[Rules and Regulations]
[Pages 57587-57595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27921]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 990301058-9225-02; I.D. 011499B]
RIN 0648-AL56


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

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement the approved portions 
of Amendment 12 to the Summer Flounder, Scup, and Black Sea Bass 
Fishery Management Plan (FMP); Amendment 8 to the Atlantic Mackerel, 
Squid, and Butterfish FMP; and Amendment 12 to the Atlantic Surf Clam 
and Ocean Quahog FMP. This 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. The purpose of these amendments is to meet the 
requirements of the Sustainable Fisheries Act (SFA) of October 1996 
(SFA).

DATES: Effective November 26, 1999.

ADDRESSES: Copies of the SFA 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.
    Comments regarding burden-hour estimates for collection-of-
information requirements contained in this rule should be sent to the 
same address and to the Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Washington, DC 20503 (Attention: 
NOAA Desk Officer).

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

SUPPLEMENTARY INFORMATION: Amendment 12 to the Summer Flounder, Scup, 
and Black Sea Bass FMP; Amendment 8 to the Atlantic Mackerel, Squid, 
and Butterfish FMP; and Amendment 12 to the Atlantic Surf Clam and 
Ocean Quahog FMP (collectively referred to as the SFA Amendments) were 
prepared by the Mid-Atlantic Fishery Management Council (Council) to 
address the new requirements of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), as amended by 
the SFA. Background concerning the development of the SFA Amendments 
was provided in the notice of proposed rulemaking (64 FR 16891, April 
7, 1999), and is not repeated here. This final rule implements approved 
management measures contained in the SFA Amendments intended to 
eliminate overfishing, rebuild many of the associated stocks, comply 
with the provisions of the SFA, and achieve other goals. The SFA 
Amendments were partially approved by NMFS on behalf of the Secretary 
of Commerce (Secretary) on April 28, 1999.
    Upon evaluation of the SFA Amendments as required by Section 
304(a)(3) of the Magnuson-Stevens Act, NMFS, on behalf of the 
Secretary, disapproved several provisions of the amendments. The 
disapproved measures include the scup rebuilding schedule, the scup 
bycatch provision, the surf clam overfishing definition (OFD), and the 
deficient essential fish habitat (EFH) portions of all three of the SFA 
amendments. The deficient portions include: Section 2.2.3.7--Fishing 
Impacts on EFH and Section 2.2.4--Options for Managing Adverse Effects 
from Fishing in Amendment 12 to the Summer Flounder, Scup, and Black 
Sea Bass FMP; Section 2.2.3.7--Fishing Impacts on EFH and Section 
2.2.4--Options for Managing Adverse Effects from Fishing in Amendment 8 
to the Atlantic Mackerel, Squid, and Butterfish FMP; and Section 
2.2.3.8--Fishing Impacts on EFH,, and Section 2.2.4-- Options for 
Managing Adverse Effects from Fishing in Amendment 12 to the Atlantic 
Surf Clam and Ocean Quahog FMP. NMFS has notified the Council of the 
disapprovals and made recommendations for addressing the deficiencies 
noted.

Measures Approved in SFA Amendments

    This final rule implements revisions to the Summer Flounder, Scup, 
and Black Sea Bass FMP, the Atlantic Mackerel, Squid, and Butterfish 
FMP, and the Atlantic Surf Clam and Ocean Quahog FMP by adding a 
framework adjustment process in addition to the annual specification 
setting process for each of the fisheries.
    This final rule also revises regulations implementing the Atlantic 
Mackerel, Squid, and Butterfish FMP by revising the maximum fishing 
mortality rate (F) for Illex squid to FMSY to reflect better 
the goal of achieving maximum sustainable yield (MSY) on a continuing 
basis, and restricting the size of domestic harvesting, but not 
processing, vessels permitted in the Atlantic mackerel fishery. A 
vessel permitted in the Atlantic mackerel fishery may not exceed either 
of the following specifications: (1) 165 ft (50.3 m) in length overall 
(LOA) and 750 gross registered tons (GRT), or (2) a shaft horsepower 
(shp) of 3,000 shp.

Comments and Responses

    Forty-six written comments on the SFA Amendments were received 
during the comment period established by the notice of availability of 
the SFA Amendments, which ended March 29, 1999 (64 FR 4065, January 27, 
1999). These comments were considered by NMFS in its decision to 
approve partially the SFA Amendments on April 28, 1999. In addition, 
NMFS received 10 comments during the comment period specified for the 
proposed rule, which ended on May 24, 1999. A number of the comments 
received on the proposed rule did not specifically address the proposed 
regulations. In fact, many of these letters referenced existing 
provisions in the management structures for each of the fisheries that 
were not proposed for revision under the SFA Amendments. Since those 
existing provisions had already been found to comply with the Magnuson-
Stevens Act under reviews for both previous actions and the SFA 
Amendments, and were not revised in the SFA Amendments, NMFS determined 
that it would be inappropriate to address those comments in this final 
rule. Comments received during the specified comment

[[Page 57588]]

periods pertaining to either the SFA Amendments or the proposed rule 
are addressed here.

General

    Comment 1: One commenter supported the complete adoption of the SFA 
Amendments.
    Response: Comment noted. NMFS, however, did not approve all of the 
SFA Amendments. Upon evaluation of the SFA Amendments, as required by 
Section 304(a)(3) of the Magnuson-Stevens Act, NMFS, on behalf of the 
Secretary, only partially approved the SFA Amendments. The measures 
disapproved were described in the preceding summary section and are not 
repeated here.

Atlantic Mackerel Vessel Size Restriction

    Comment 2: Four comment letters, including three form letters 
representing 18 comments, supported the size restriction for vessels 
harvesting Atlantic mackerel. Commenters felt the action was necessary 
to slow the growth of the fishery while markets develop, and called the 
restriction ``proactive'' rather than ``reactive.'' Response: NMFS 
approved this measure and supports the Council's intent to control 
access to the Atlantic mackerel fishery and fully develop a controlled 
access provision in a forthcoming amendment to the Atlantic Mackerel, 
Squid, and Butterfish FMP. This restriction and the publication of the 
control date (September 12, 1997) begins the process of addressing the 
Council's concerns about overcapitalization.
    The Council established a control date for the Atlantic mackerel 
fishery of September 12, 1997 (62 FR 48047). The advance notice of 
proposed rulemaking informed the public that anyone entering the 
Atlantic mackerel fishery after that date could not be assured access 
to the fishery if a program to limit such access is developed. The 
control date and vessel size restriction give the Council time to 
develop a limited entry program without fear of an influx of vessels 
having high fishing power and capacity.
    Comment 3: One commenter questioned the need for the vessel size 
restriction, noting that the restriction did not appear in Section 
1.1--Purpose and Need for Action, and appeared to contradict the FMP 
objective that states the goal of promoting ``the growth of the U.S. 
commercial fishery, including fishery for export.'' The commenter also 
questioned how the size restriction achieves the greatest overall 
benefit to the Nation (as defined by ``optimum'' under National 
Standard 1).
    Response: NMFS believes that the vessel size restriction falls 
within the scope of the FMP objective of promoting the growth of the 
commercial Atlantic mackerel fishery. The vessel size restriction does 
not contradict that, or any other, objective of the FMP. The Council 
developed this provision not to prevent the growth of the commercial 
fishery, but rather to control its growth. The Council was concerned 
about the possibility of rapid overcapitalization of the fishery and of 
significant increases in harvest potential. Furthermore, the Council 
was concerned about providing high priority to historical participants 
in the Atlantic mackerel fishery as it considered development of a 
limited access system. The vessel size restriction in Amendment 8 helps 
protect against rapid overcapitalization and significant increases in 
harvest potential, while also allowing historical participants to 
remain in the fishery.
    The term ``optimum yield'' (OY) refers to the yield from a fishery 
that will provide the greatest overall benefit to the Nation, 
prescribed by MSY, and reduced by social, economic, or ecological 
factors. National standard 1 states that conservation and management 
measures shall prevent overfishing while achieving, on a continual 
basis, the OY from each fishery for the U.S. fishing industry. National 
standard 1 does not require justification of the vessel size 
restriction by explaining how it achieves the greatest overall benefit 
to the Nation. Nevertheless, the Magnuson-Sevens Act authorizes 
consideration of social, economic, biological, and ecological factors 
in the development of conservation and management measures. The vessel 
size restriction reflects legitimate concerns about such factors, 
including overcapitalization, harvest potential, historical 
participation, and the impact on the resource due to possible 
overcapitalization and increased harvest potential.
    Comment 4: One commenter stated that no environmental impact 
analysis was conducted on the size restriction nor was any rationale 
put forward for the specific size parameters.
    Response: An environmental assessment was prepared for Amendment 8 
to the Atlantic Mackerel, Squid, and Butterfish FMP and concluded that 
approval and implementation of the proposed action, which included the 
vessel size restriction, would not significantly affect the quality of 
the human environment. As a result, an environmental impact statement 
was not required. In Amendment 8, the Council explained that the vessel 
size restrictions were developed in response to concerns about the 
rapid overcapitalization of the mackerel fleet by the entry of large 
vessels with significant harvest potential and, by implication, the 
effect such a rapid chance in the fishery may have on the resource. By 
preventing such a rapid change in the fishery, the vessel size 
restriction constitutes a proactive means of protecting the resource 
and, therefore, would not have an adverse impact on the environment.
    An analysis of the parameters of the Atlantic mackerel vessel size 
restriction was conducted by the Council in Amendment 8. The analysis 
investigated the vessels currently participating in the mackerel 
fishery, including vessel size necessary to participate successfully. 
The size limits adopted represent the upper bound of those permitted 
vessels that have been shown to harvest Atlantic mackerel successfully. 
Thus, the size restriction caps the size parameters of individual 
vessels in the fleet to those which currently exist in the fishery. 
Only new, larger vessels are precluded from entering the fishery by 
this restriction.
    Comment 5: Thirty-three commenters opposed the vessel size 
restriction. Opposition to the measure focused mainly on fairness, 
equity, and conservation and management rationale. Commenters felt that 
the provision was an attempt by competitors to ``reserve the resource 
for themselves,'' would impact only one fishing vessel, and violated 
several national standards.
    Response: The size restriction for vessels harvesting Atlantic 
mackerel is not intended to single out an individual, corporation, or 
other entity, but is intended to preclude large, high capacity vessels 
from entering the fishery. This restriction is designed to address a 
class of vessels and to prevent rapid overcapitalization while the 
Council develops a limited access program for the Atlantic mackerel 
fishery in a future action. NMFS found the action in compliance with 
the national standards.
    Comment 6: The Council submitted language to clarify the Atlantic 
mackerel vessel size restriction. Specifically, the Council reaffirmed 
that it intends the restriction to be applied to vessels that exceed 
any one of the two following criteria: (1) 165 ft LOA and 750 GRT; (2) 
shaft horsepower of 3,000 shp.
    Response: NMFS had raised concerns about the specific language of 
the restriction both during the Council meetings and after Amendment 8 
was submitted during informal discussions with Council staff. It was 
not clear

[[Page 57589]]

whether the Council's intent was to adopt the vessel size restriction 
language of the American Fisheries Act, the Department of Commerce 
appropriations bill language, or the language developed by the New 
England Fishery Management Council for the Atlantic Herring FMP. 
Because of the subtle differences between all of these varying 
provisions, NMFS chose to publish the most restrictive provision in the 
proposed rule and solicit comment. No comments on the precise wording 
of the measure were received. However, based on the Council's 
clarification of its intent, the Council's clarification is accepted 
and adopted in this final rule.

Overfishing Definitions

    Comment 7: One commenter felt that the OFDs for both scup and black 
sea bass were not sufficiently precautionary. The commenter cites 
technical recommendations that F0.1 be adopted for both 
species.
    Response: The Council adopted FMAX = 0.32 as a fishing 
mortality reference point proxy for FMSY for black sea bass, 
and FMAX = 0.26 as a proxy for FMSY for scup. 
Scientific advice recommended a more conservative reference point, 
F0.1 = 0.18 as a proxy for FMSY for black sea 
bass, and F0.1 = 0.15 as a proxy for FMSY for 
scup, to compensate for the uncertainty in the assessment of both. NMFS 
approved the OFDs for scup and black sea bass because they were 
conceptually sound, albeit less conservative and risk averse than those 
recommended by scientists.
    Comment 8: One commenter felt that, for scup and black sea bass, 
the rebuilding plans specified in Amendment 12 to the Summer Flounder, 
Scup, and Black Sea Bass FMP were not adequate and should be 
disapproved. The commenter stated that, ``given the level of 
uncertainty [in the assessment data for scup], a much greater level of 
caution'' is necessary.
    Response: NMFS agrees that the rebuilding plan specified for scup 
was not adequate, and, therefore, disapproved that provision because of 
the minimal probability that the stock could rebuild to the minimum 
biomass index within 10 years. The combination of the less conservative 
choice of mortality reference point by the Council (see comment 7 and 
response) and the general decline of this fishery is risk-prone and the 
rebuilding program warranted disapproval.
    The rebuilding plan for black sea bass was not disapproved because 
the current rebuilding schedule for black sea bass is less risk-prone 
for a stock that has been relatively stable, albeit at low levels, for 
the past decade. In contrast, the scup stock indices have been trending 
downward during that time and the rebuilding schedule posed an 
unacceptably high risk.
    Comment 9: Three commenters found the Illex OFD confusing.
    Response: Since the OFDs are very technical in nature, they are 
also often confusing. Since the commenters did not specify what they 
found to be confusing in particular about the definition, it is 
difficult to respond. During development of Amendment 8, there was some 
confusion surrounding the estimation of the harvestable yield in the 
Illex squid fishery that would arise from the OFD. For the purposes of 
this response, NMFS will assume this is the point about which the 
commenter is confused. Rather than explain the calculations that were 
made which, again, would necessarily be technical, NMFS points out that 
an error was made that is corrected by this rule. This correction 
results in an increased harvest of Illex squid from 18,000 to 22,800 
metric tons (mt). This revision--incorporating the intended, correct 
value--was approved by NMFS as part of the review of Amendment 8. 
    Comment 10: One commenter supported the Illex squid OFD.
    Response: Comment noted. As noted, the Illex squid OFD was 
approved, as corrected (see comment 9 and response).

Essential Fish Habitat (EFH)

    Comment 11: Two commenters considered the EFH portions of the SFA 
Amendments to be overly broad and exceeding the intent of Congress. The 
commenter specifically cited the breadth of EFH designations, noting 
that EFH appeared to be designated in an arbitrary manner, over the 
range of the species, and included coastal state and estuarine waters. 
The commenter opposed what he interpreted to be a requirement for EFH 
to be further designated by ``project proponents.'' Another commenter 
supported the identification of EFH, noting that a broad designation of 
EFH was mandatory, especially where a stock is overfished and loss of 
habitat is considered to be a contributing factor. The commenter also 
supports the designation of submerged aquatic vegetation as habitat 
area of particular concern (HAPC) due to its value as nursery habitat.
    Response: The Magnuson-Stevens Act defines EFH as those waters and 
substrate necessary to fish for spawning, breeding, feeding, or growth 
to maturity. Therefore, the geographic scope of EFH must be 
sufficiently broad to encompass the biological requirements of the 
species. The information that the Council used for EFH designation was 
primarily species distribution and relative abundance data, which would 
be classified as ``level 2'' information under the EFH regulations (50 
CFR 600.815). Since the information available was not more specific 
(e.g., did not show species production by habitat type), the approach 
prescribed by the regulations led to fairly broad EFH designations. The 
EFH regulations at 50 CFR Sec. 600.10 interpret the statutory 
definition of EFH to include aquatic areas that are used by fish, 
including historically used areas, where appropriate, to support a 
sustainable fishery and the managed species' contribution to a healthy 
ecosystem, provided that restoration is technologically and 
economically feasible. The Council's EFH designation is consistent with 
these requirements.
    The specific methodology used by the Council for designating EFH 
was based on the highest relative density of each life stage for each 
species. This methodology was developed by scientists at the Northeast 
Fisheries Science Center, and is supported by scientific research and 
ecological concepts that show that the distribution and abundance of a 
species or stock are determined by physical and biological variables. 
The abundance of a species is higher where conditions are more 
favorable, and this tends to occur near the center of a species range. 
As population abundance fluctuates, the area occupied changes. At low 
levels of abundance, populations are expected to occupy the habitat 
that maximizes their survival, growth, and reproduction. As population 
abundance increases, individuals move into other available habitats.
    Under the consultation provisions of the Magnuson-Stevens Act, a 
Federal agency must consult with NMFS when a proposed project has the 
potential to impact adversely any area of EFH that has been designated 
by the Council. The EFH regulations at 50 CFR 600.920(g) require that 
Federal agencies submit an EFH Assessment that describes the effects of 
the action on EFH. No requirement exists for further designation of EFH 
by project applicants.
    Comment 12: A commenter stated that the conservation and 
enhancement recommendations for non-fishing impacts to EFH that are 
provided in the SFA Amendments are not based on the best available 
science, nor sufficiently supported. Two commenters contended that the 
recommended measures do not take into consideration current practices, 
are likely to be in conflict with measures being pursued under

[[Page 57590]]

other regulatory programs, and may cause severe over regulation. One 
commenter also stated that the Magnuson-Stevens Act did not empower the 
Councils to address non-fishing activities.
    Response: NMFS disagrees that the conservation and enhancement 
recommendations for non-fishing impacts to EFH are not based on the 
best available science. The information presented in the EFH sections 
of the SFA Amendments is well researched and substantiated by the best 
available information. Moreover, the commenter did not provide examples 
of specific information not considered by the Councils.
    Conservation and enhancement recommendations for non-fishing 
industries were included to satisfy the requirements of section 
303(a)(7) of the Magnuson-Stevens Act to ``identify other actions to 
encourage the conservation and enhancement of [EFH].'' This information 
is provided to assist non-fishing industries, such as the timber and 
paper industries, in avoiding impacts to EFH. The recommendations are 
neither posed as, nor meant to be, binding in nature. It is up to the 
discretion of the non-fishing industries and relevant regulatory 
agencies whether these recommendations are implemented.
    Additionally, under section 305(b) of the Magnuson-Stevens Act, 
NMFS is required, and the Councils are authorized, to make conservation 
recommendations to any Federal or state agency regarding any activity 
that would adversely affect EFH. Moreover, Federal agencies are 
required to respond to these recommendations in writing.
    Comment 13: Two commenters stated that the SFA Amendments contain 
no meaningful threshold of significance or likelihood of adverse effect 
on habitat for non-fishing impacts. The commenters suggested that the 
consultation and conservation recommendation provisions of the 
Magnuson-Stevens Act will be burdensome and unworkable. One commenter 
contended that the consultation procedures will be redundant with the 
National Environmental Policy Act (NEPA), costly, and time consuming.
    Response: The Magnuson-Stevens Act requires Federal action agencies 
to consult with NMFS on activities that may adversely affect EFH. 
Adverse effects, as defined at 50 CFR 600.810(a), means any impact that 
reduces the quality and/or quantity of EFH. Adverse effects may 
include, for example, direct effects through contamination or physical 
disruption, indirect effects such as loss of prey or reduction in 
species fecundity, and site-specific or habitat-wide impacts, including 
individual, cumulative, or synergistic consequences of actions. Only 
actions that have a reasonably foreseeable adverse effect require 
consultation.
    Consultations are not likely to be redundant or inefficient. The 
EFH regulations provide for streamlined consultation procedures, such 
as general concurrences and abbreviated consultations, that may be used 
when the activities at issue do not have the potential to cause 
substantial adverse effects on EFH. The EFH consultation requirements 
will be consolidated with other existing consultation and environmental 
review procedures wherever appropriate. This approach will ensure that 
EFH consultations do not duplicate other environmental reviews, yet 
still fulfill the statutory requirement for Federal actions to consider 
potential effects on EFH.
    Comment 14: A commenter stated that the SFA Amendments generally 
failed to address the potential for significant adverse impacts of 
these amendments on non-fishing entities, specifically citing the 
requirements of NEPA and the Regulatory Flexibility Act (RFA).
    Response: The conservation and enhancement recommendations outlined 
in the SFA Amendments include a review of suggested measures for 
municipal, state, and Federal agencies and other organizations for the 
conservation and enhancement of EFH. As stated previously, these 
recommendations are non-binding. Any regulatory action that may reflect 
these recommendations will be subject to the analysis and public review 
required by state or Federal law, which will be the appropriate vehicle 
for consideration of impacts to both fishing and non-fishing entities.
    In the EAs included with the SFA Amendments, the Council found, and 
NMFS concurs, that there will be no significant impacts on the human 
environment as a result of these SFA Amendments. The EFH regulations 
and NOAA policy require that NMFS coordinate EFH consultations with 
other consultation and commenting requirements under environmental 
review procedures currently in place. This will eliminate duplication 
and will ensure a workable review process.
    An analysis of the rule with respect to the requirements of the RFA 
concluded that the SFA Amendments would not have a significant economic 
impact on a substantial number of small entities. As a result, no 
regulatory flexibility analysis was prepared. Further, no specific 
management measures were submitted regarding the EFH designation. Any 
changes in management provisions that arise as a result of the measures 
enacted by these SFA Amendments (such as a framework adjustment) will 
be reviewed for their economic impacts when submitted.
    Comment 15: A number of commenters stated that the amendment did 
not adequately address fishing impacts to EFH, and urged NMFS to 
disapprove these sections. Commenters stated that work plans to 
implement additional HAPCs and gear management measures should be 
developed.
    Response: NMFS agrees that the Council did not adequately address 
adverse impacts to EFH from fishing gear, and as a result, has 
disapproved three sections of the SFA Amendments that relate to EFH.
    In letters to the Council dated September 4, 1998, and October 2, 
1998, NMFS identified the need for improvements in these sections and 
provided specific recommendations. Although the Council attempted to 
address many of the comments provided by NMFS, the SFA Amendments fell 
short of the requirements set forth in both the SFA and the EFH 
regulations. In order to comply with the EFH regulations, the 
disapproved sections must be revised to discuss specifically how each 
of the fishing equipment types used in areas designated as EFH affect 
EFH. The SFA Amendments state that the gears expected to have the most 
adverse impact are hydraulic clam dredges and the scallop dredge, and 
note a number of discernable effects, but conclude that the effects are 
minimal. The SFA Amendments should be revised to give a clearer 
explanation of the basis for its conclusion about the magnitude and 
permanence of any adverse effects.
    Section 2.2.4 of all three amendments states that evidence of 
various gear impacts on bottom habitat have been presented to the 
Council, and that all mobile gear contacting the sea floor has 
potential impact to EFH. However, the Council concludes that these 
effects are not ``identifiable'' and that for this reason and lack of 
quantifiable information, no management measures will be proposed. 
Although the Council may be correct that no new management measures are 
practicable, the SFA Amendments do not contain a sufficient discussion 
or analysis to support this conclusion. The three amendments should be 
revised either to provide a clear rationale for the conclusion that no 
new management measures are practicable, in accordance with 50 CFR 
600.815(a)(3)(iii) and (iv); or to propose new management measures that

[[Page 57591]]

address, to the extent practicable, any identifiable adverse effects.
    Although NMFS agrees that the development of schedules for the 
identification of HAPCs and gear management measures could be useful, 
these activities are not required by either the Magnuson-Stevens Act or 
the EFH regulations.

Other Comments

    Comment 16: Three commenters felt that the analyses and discussion 
of bycatch were not adequate, particularly with respect to the scup and 
summer flounder fisheries. One of the commenters referred to discards 
in these fisheries as ``significant'' and ``a clear problem'', 
respectively, and noted that minimizing scup bycatch has taken on a 
special urgency in light of what is believed to be a large year class 
in 1997.
    Response: NMFS agrees that the bycatch provision for scup was not 
adequate, and disapproved the provision as inconsistent with National 
Standard 9. Measures for scup in the Summer Flounder, Scup, and Black 
Sea Bass FMP do not reduce bycatch adequately or minimize bycatch 
mortality. The most recent assessment for scup, conducted at the 
27th stock assessment workshop (SAW-27) advised reducing F 
``substantially and immediately'' and noted that reducing discards 
(especially in small mesh fisheries) would have the most impact in that 
regard. NMFS acknowledges that data with respect to identifying primary 
discard sources sufficient to implement management measures are 
limited. Still, it is envisioned that the Council would take the 
precautionary approach to develop measures to reduce discards as a 
result of this disapproval. The most recent stock assessment for summer 
flounder (SAW-25) did not express similar concerns for that fishery, 
although NMFS contemplates that the Council will take the precautionary 
approach when establishing future actions for this fishery as well.
    NMFS supports action related to this issue, particularly as a 
follow-up to the discussions of scup discards in the April 27, 1999, 
workshop held by the Council's Comprehensive Management Committee. This 
Committee is charged with investigating alternatives to address scup 
discards, such as gear modification and season/area closures.
    Comment 17: In addition to non-compliance with National Standard 9, 
one commenter believes the Summer Flounder, Scup, and Black Sea Bass 
FMP does not comply with National Standard 8, the requirement to take 
into account the impact of regulations on fishing communities, and 
National Standard 10 on safety at sea. Specifically, the commenter 
feels that the Council gave only ``cursory treatment'' to the changes 
the summer flounder state-by-state quota has had on fishing communities 
and that the quota created unsafe conditions for industry participants.
    Response: NMFS approved the continuation of the state-by-state 
allocation of summer flounder quota under Amendment 10 to the Summer 
Flounder, Scup, and Black Sea Bass FMP. The Council and Commission 
agreed that, although the state-by-state system has some problems, it 
is the most flexible in that it allows states to implement subquotas 
and trip limits to manage best their individual fisheries. Review of 
Amendment 10 included a review for consistency with the new National 
Standards, 8, 9, and 10. During that review, the quota allocation was 
found consistent with the national standards and other applicable law.
    Comment 18: One commenter charges that the amendments do not 
address Magnuson-Stevens Act National Standards 1 (prevent 
overfishing), 2 (best available scientific information), and 7 
(unnecessary duplication). The commenter stated that the Council 
``appeared to avoid serious discussion'' of addressing overfishing and 
rebuilding overfished stocks.
    Response: NMFS notes that the commenter did not elaborate on its 
assertion that the SFA Amendments violated several national standards. 
However, of the three FMPs reviewed under this rule, comprising a total 
of nine separate species, three of those species are considered 
overfished under their revised OFDs (summer flounder, scup, and black 
sea bass). The SFA Amendments continue the rebuilding programs already 
established for these species. These rebuilding programs called for an 
end to overfishing of the summer flounder resource in 1998, of scup in 
2002, and of black sea bass in 2003. These schedules continue to direct 
the Council to design annual measures to achieve specific fishing 
mortality rates. However, as noted earlier in this document, the 
Council will be required to develop a more rigorous rebuilding program 
for scup. The scientific advice advocates for more conservative 
rebuilding measures, and NMFS agrees that more could have been done in 
this regard. However, only the scup rebuilding schedule was found so 
deficient as to compel disapproval (see response to comment 8), while 
those for summer flounder and black sea bass were determined to be 
adequate.
    NMFS finds no evidence that the best scientific information was not 
used by the Council, consistent with National Standard 2.
    With regards to the commenter's assertion that the SFA Amendments 
violate National Standard 7, NMFS assumes, for the purpose of 
responding to this comment, that the commenter is alleging that the EFH 
consultation process is duplicative of other federally required 
consultation processes.
    Inter-agency consultations on Federal activities that may adversely 
affect EFH are required by the Magnuson-Stevens Act. Section 305(b)(2) 
of the Magnuson-Stevens Act states: ``Each Federal agency shall consult 
with the Secretary with respect to any action authorized, funded, or 
undertaken, or proposed to be authorized, funded, or undertaken, by 
such agency that may adversely affect any essential fish habitat 
identified under this Act.'' Other Federal statutes, such as the Fish 
and Wildlife Coordination Act, the Endangered Species Act, and NEPA 
require consultation or coordination between NMFS and other Federal 
agencies. EFH consultations will be conducted, to the extent possible, 
under existing review processes and within existing time frames. NMFS 
is committed to a consultation process that will be effective, 
efficient, and non-duplicative. The SFA Amendments contain conservation 
recommendations that are appropriate for many Federal actions, and they 
can also serve as guidelines that should be considered during project 
planning.

Framework Adjustment Procedures

    Comment 19: Six commenters supported the framework provisions.
    Response: Comment noted. NMFS also supports the approved framework 
provisions.
    Comment 20: One commenter objects to inclusion of the OFD in the 
framework procedure, and states that it is ``not a typical management 
measure'' and is, therefore, inappropriate to include there.
    Response: NMFS disagrees that inclusion of OFDs into the list of 
items that may be altered by framework adjustment is inappropriate. 
OFDs, and their related thresholds and targets, while not management 
measures, may change as stocks rebuild and those values are 
recalculated. Therefore, it is appropriate and scientifically sound 
that the Council have the ability to adjust OFDs as improved 
information becomes available without going through the formal 
amendment process.

Pertinent Data/Reporting Methodology

    Comment 21: One commenter felt that the use of the available data 
(vessel trip

[[Page 57592]]

reports (VTR) and observer data) to describe discards is not ``valid or 
defensible.'' The commenter notes ``ample evidence'' from public 
comment that discards are more substantial than reported. The Council 
should, according to the commenter, undertake ``an effort to reach out 
to fishermen for a more complete documentation of their fluke [summer 
flounder] discards.''
    Response: While NMFS acknowledges that data are limited in 
describing discards in many fisheries, anecdotal information presented 
at public forums is often contradictory and difficult to assimilate 
into a form useful for quantitative analysis. Currently, industry 
participants are required by law to report discards, truthfully and 
accurately, in their VTR logbooks. Industry cooperation in filling out 
these reports accurately is essential to provide managers and 
scientists with timely information to evaluate the condition of 
resources. The information is also necessary to evaluate the 
effectiveness of current management measures and to validate the 
information received through dealer reports. It is in industry's best 
interest to fill out these logbooks accurately and completely so that 
regulations are based on data that portray the industry correctly.
    Comment 22: One commenter feels that the SFA Amendments do not 
comply with the mandate to establish a standardized reporting 
methodology for addressing discards.
    Response: NMFS disagrees. The SFA Amendments do not establish a 
standardized reporting system because such a system already exists. The 
existing program includes the VTR system and sea sampling. The VTR 
system was established in 1993 in response to industry concerns that 
the voluntary reporting system did not provide complete information 
about their particular fishery, port, or vessel. The VTR system reaches 
all fishermen, even those in remote locations, and records important 
information concerning fishing operations, including data on gear and 
areas fished, as well as species kept and discarded.
    The sea-sampling program is designed primarily to observe fishing 
operations in fisheries that have interactions with protected resources 
such as marine mammals and turtles. However, information on bycatch is 
also collected on these sampled trips. In addition, the Administrator, 
Northeast Region, NMFS (Regional Administrator), may request any vessel 
holding a moratorium permit for summer flounder, scup, or black sea 
bass, or a permit for mackerel, squid, or butterfish, to carry a NMFS-
approved sea sampler/observer. If requested by the Regional 
Administrator to carry an observer or sea sampler, a vessel may not 
engage in any fishing operations in the respective fishery unless an 
observer or sea sampler is on board, or unless the requirement is 
waived.

Changes from the Proposed Rule

    In Sec. 648.4, paragraph (a)(5)(iii) is revised to reflect the 
request by the Council to clarify the language limiting the size and 
horsepower of a vessel permitted to harvest Atlantic mackerel. In 
Sec. 648.14, paragraph (p)(10) is added for the same reason.
    In Sec. 648.5, paragraph (d) is revised to eliminate the optional 
information submission of the applicant's social security number.
    In Sec. 648.7, the last two sentences of paragraph (c) are removed, 
as they refer to sections that were modified in previous actions.
    Amendment 10 to the Summer Flounder, Scup, and Black Sea Bass 
fisheries prohibited the transfer of summer flounder at sea (62 FR 
63872, December 3, 1997). Language in Sec. 648.7(f)(3) includes 
reporting requirements for at-sea processors. This language conflicts 
with the prohibited action specified at Sec. 648.13(d). Therefore, the 
language in Sec. 648.7 is revised to reflect the intent of Amendment 10 
to prohibit transfer of summer flounder at sea.
    In Sec. 648.21, paragraph (e) is removed, as it is redundant with 
the inseason adjustment process established under the framework 
provision in Sec. 648.24.
    Section 648.106 Sea Turtle Conservation, is revised by removing the 
old language and adding a reference to the current regulations 
implementing these measures under the authority of the Endangered 
Species Act (ESA) 50 CFR parts 222 and 223. This revision was discussed 
in the preamble to the proposed rule for this action (64 FR 16891, 
April 7.1999), however, the regulatory text was inadvertently omitted 
from the proposed rule. Because the public was notified and comment was 
invited on the change as part of the proposed rule, NMFS publishes the 
text as final.

Classification

    This 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 when this rule was proposed that it would not have a 
significant economic impact on a substantial number of small entities.
    While no comments were received specifically regarding this 
certification, one commenter did state that the SFA Amendments 
generally failed to address the potential for significant adverse 
impacts on non-fishing entities, as required under the RFA. This 
comment was addressed in the preamble (see the response to comment 14), 
and did not cause NMFS to change its determination regarding the 
certification. As a result, a regulatory flexibility analysis was not 
prepared.
    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 
approved by OMB under OMB control numbers 0648-0202 and 0648-0229. The 
requirements and their estimated response times are as follows:
    1. Under OMB control number 0648-0202, surf clam and ocean quahog 
operator permits at 1 hour per response,
    2. Under OMB control number 0648-0202, mackerel at-sea processor 
permits at 5 minutes per response, and
    2. Under OMB control number 0648-0229, mackerel dealer 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 interactive voice response 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. Send comments regarding these burden 
estimates or any other aspect of the data requirements, including 
suggestions for reducing the burden, to NMFS and to OMB (see 
ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: October 19, 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 amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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


[[Page 57593]]


    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 either 165 feet in length overall 
(LOA) and 750 gross registered tons, or a shaft horsepower of 3000 shp. 
Vessels that exceed the size or horsepower restrictions may seek to 
obtain an at-sea processing permit specified under Sec. 648.6(a)(2).
* * * * *
    3. In Sec. 648.5, paragraphs (a) and (d) are 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, as of November 
26, 1999, Atlantic surf clams and ocean quahogs, 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.
* * * * *
    (d) Information requirements. An applicant must provide at least 
all the following information and any other information required by the 
Regional Administrator: Name, mailing address, and telephone number; 
date of birth; hair color; eye color; height; weight; and signature of 
the applicant.
* * * * *
    4. In Sec. 648.6, paragraphs (a) and (c) are revised to read as 
follows:


Sec. 648.6  Dealer/processor permits.

    (a) General. (1) Dealer permits. All NE multispecies, sea scallop, 
summer flounder, surf clam, and ocean quahog dealers, and surf clam and 
ocean quahog processors must have been issued under this section, and 
have in their possession, a valid permit for these species. All 
mackerel, squid, and butterfish dealers and all scup and black sea bass 
dealers must have been issued under this section, and have in their 
possession, a valid permit for these species.
    (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, as applicable, 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.
* * * * *
    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 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 either 165 ft (50.3 m) in length overall 
and 750 GRT, or a shaft horsepower of 3000 shp, except for the 
retention and possession of Atlantic mackerel for processing 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 and paragraph (e) 
is removed 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 Council, 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 Council shall develop and analyze 
appropriate management actions over the span of at least two Council 
meetings. The Council 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 Council meeting. The Council'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

[[Page 57594]]

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, 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) 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, 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 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 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) NMFS action. If the Council's recommendation includes 
adjustments or additions to management measures and, after reviewing 
the Council's recommendation and supporting information:
    (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, the measures will be issued as a final rule in 
the Federal Register.
    (ii) If NMFS concurs with the Council'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 NMFS concurs with the Council recommendation, the measures 
will be issued as a final rule in the Federal Register.
    (iii) If NMFS does not concur, the Council 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, which is located in Georges Bank, and is located 
east of 69 deg. W. longitude, and south of 42 deg.20' N. latitude.
* * * * *
    11. Section 648.77 is added under subpart E to read as follows:


Sec. 648.77  Framework adjustments to management measures.

    (a) Within season management action. The Council, at any time, 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. The Council shall develop and analyze 
appropriate management actions over the span of at least two Council 
meetings. The Council 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 Council meeting. The Council'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) 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, 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 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) NMFS action. If the Council's recommendation includes 
adjustments or additions to management measures and, after reviewing 
the Council's recommendation and supporting information:
    (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, the measures will be issued as a final rule in 
the Federal Register.
    (ii) If NMFS concurs with the Council'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 NMFS concurs with the Council recommendation, the measures 
will be issued as a final rule and published in the Federal Register.
    (iii) If NMFS does not concur, the Council 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]
    12. Section 648.106 is revised to read as follows:

[[Page 57595]]

Sec. 648.106  Sea Turtle conservation.

    Sea turtle regulations are found at 50 CFR parts 222 and 223.
    13. 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. The Council, 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. The Council shall develop and analyze 
appropriate management actions over the span of at least two Council 
meetings. The Council 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 Council meeting. The Council'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) 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, 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 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) NMFS action. If the Council's recommendation includes 
adjustments or additions to management measures and, if after reviewing 
the Council's recommendation and supporting information:
    (i) 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, the measures will be issued as a final rule in 
the Federal Register.
    (ii) If NMFS concurs with the Council'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 NMFS concurs with the Council recommendation, the measures 
will be issued as a final rule and published in the Federal Register.
    (iii) If NMFS does not concur, the Council 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]
    14. 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) Council recommendation. See Sec. 648.107(a)(2)(i) through (iv).
    (3) NMFS action. See Sec. 648.107(a)(i) through (iii).
    (4) Emergency actions. See Sec. 648.107(a)(4).
    (b) [Reserved]
    15. 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) Council 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. 99-27921 Filed 10-25-99; 8:45 am]
BILLING CODE 3510-22-F