[Federal Register Volume 65, Number 144 (Wednesday, July 26, 2000)]
[Rules and Regulations]
[Pages 45844-45854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18648]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

[Docket No. 990713190-0155-02; I.D. 041599B]
RIN 0648-AH63


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

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

ACTION: Final rule; technical amendment.

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SUMMARY: NMFS issues this final rule to implement approved measures 
contained in Amendment 1 (Amendment 1) to the Fishery Management Plan 
for the Atlantic Bluefish Fishery (FMP). Amendment 1 contains a number 
of measures requiring regulatory implementation to control fishing 
mortality on Atlantic bluefish (bluefish). This rule implements permit 
and reporting requirements for commercial vessels, dealers, and party/
charter boats; implements permit requirements for bluefish vessel 
operators; establishes a Bluefish Monitoring Committee (Committee) 
charged with annually recommending to the Mid-Atlantic Fishery 
Management Council (Council) and the Atlantic States Marine Fisheries 
Commission (Commission) the total allowable landings (TAL) and other 
restrictions necessary to achieve the target fishing mortality rates 
(F) specified in the FMP; establishes a framework adjustment process; 
establishes a 9-year stock rebuilding schedule; establishes a 
commercial quota with state allocations; and establishes a recreational 
harvest limit. The purpose of this rule is to control fishing mortality 
of bluefish and rebuild the stock. Also, this rule makes technical 
amendments to the regulations implementing the Spiny Dogfish Fishery 
Management Plan. In addition, this rule makes technical amendments to 
crossreferencing regulations managing the American lobster fishery. 
Furthermore, NMFS informs the public of the approval by the Office of 
Management and Budget (OMB) of the collection-of-information 
requirements contained in this rule and publishes the OMB control 
numbers for these collections.

DATES: This rule is effective August 25, 2000.

ADDRESSES: Copies of Amendment 1, its Regulatory Impact Review, the 
Final Regulatory Flexibility Analysis (FRFA), 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.
    Comments regarding the collection-of-information requirements 
contained in this final rule should be sent to Patricia Kurkul, 
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn 
Drive, Gloucester, MA 01930, and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503 (Attention: NOAA Desk Officer).

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

SUPPLEMENTARY INFORMATION: This final rule implements the measures to 
control fishing mortality of bluefish contained in Amendment 1, which 
were approved by NMFS on behalf of the Secretary of Commerce 
(Secretary) on July 29, 1999. 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. 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. As part of the rebuilding plan, Amendment 1 
contains a new overfishing definition for the bluefish stock and a 9-
year rebuilding schedule. The rebuilding plan was also approved by 
NMFS. The overfishing definition is not being codified in regulations. 
NMFS did not approve all of Amendment 1. NMFS disapproved the de 
minimus provision related to state allocations of the commercial quota, 
the portion of the essential fish habitat (EFH) section assessing the 
effects of fishing gear on bluefish EFH, and the description and 
analysis of fishing communities. All of the other measures contained in 
Amendment 1, as originally submitted, were approved. A proposed rule to 
implement these measures was published on August 23, 1999 (64 FR 
45938).
    The de minimus provision, which would have exempted states 
receiving less than 0.1 percent of the overall allocation from 
participating in the state allocation system, was disapproved because 
it 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. This could result in a state's de minimus quota being 
rapidly exceeded and could result in overfishing of the bluefish stock.
    A portion of the EFH provisions were disapproved because Amendment 
1 failed to list and to consider adequately the potential adverse 
impacts of all fishing gear used in the waters described as EFH, 
particularly those waters under state jurisdiction. A significant 
portion of bluefish EFH occurs within state waters and the Council has 
indicated that there is some linkage between juvenile bluefish and 
submerged aquatic vegetation (SAV). Amendment 1 indicates that there 
are impacts to SAV from certain estuarine fishing gear. However, these 
gear are not listed in Section 2.2.3.6 (Fishing Gear Used Within the 
Bluefish Range), their potential impacts to bluefish EFH are not 
assessed in Section 2.2.3.7 (Fishing Impacts to Bluefish EFH), nor are 
the measures for managing potential adverse impacts considered in 
Section 2.2.4 (Options for Managing Adverse Effects from Fishing). 
These three sections of the EFH designation in the amendment were, 
therefore, disapproved.
    The description and analysis of fishing communities was disapproved 
because the communities involved in the present day fishery are not 
sufficiently identified and the amendment does not describe or consider 
impacts on recreational fishing communities, such as Ocean City, 
Maryland, Virginia Beach, Virginia, or Oregon Inlet, North Carolina. 
The fishing communities section of Amendment 1 is based on the 1993 
surveys of the Mid-Atlantic commercial fishing communities by McCay et 
al. Dependence of communities on the fishery is not assessed or 
considered, and the requirements of section 303(a)(9) and national 
standard 8 are not satisfied.

[[Page 45845]]

    Details concerning the justification for and development of 
Amendment 1 and the implementing regulations were provided in the 
notice of availability (NOA) of Amendment 1 (64 FR 23260, April 30, 
1999) and in the preamble to the proposed rule (64 FR 45938, August 23, 
1999) and are not repeated here.

Approved Measures

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 
is 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 is 90 percent of Fmsy 
and the long-term B target is Bmsy. The overfishing 
definition contained in Amendment 1 is not codified in regulations.
    In accordance with Sec. 648.160(a), the rebuilding plan provides 
for the bluefish stock to be rebuilt to Bmsy over a 9-year 
period. In the first (1999) and second (2000) years of rebuilding, F 
remained/remains at the 1998 level, F=0.51; in years 3 through 5 (2001, 
2002, and 2003), F will be reduced to F=0.41; and in years 6 through 9 
(2004, 2005, 2006, and 2007), F will 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.
    The Council's analysis of the impacts of the rebuilding program was 
based on the 9-year period for fishing years 1999 through 2007. 
Although the rebuilding plan was approved on July 29, 1999, NMFS did 
not implement the plan in 1999 in Federal waters because of delays in 
publishing this final rule. However, the states participating in the 
bluefish fishery took action for 1999 in accordance with the rebuilding 
schedule of Amendment 1 through the ASMFC and their own existing 
administrative programs for managing quotas in the commercial fishery 
for bluefish. Therefore, fishing year 2000 will be the second year of 
the rebuilding plan.

Annual Adjustment Process and Bluefish Monitoring Committee

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

EFH for Bluefish

    Specific description and identification of EFH for bluefish that is 
contained in Section 2.2.2.2 of Amendment 1 was approved. The Council 
did not identify any habitat areas of particular concern for bluefish.

Recreational Harvest Limit and Commercial Quotas

    This final rule establishes a procedure to specify an annual 
coastwide harvest level that is to be divided into two separate TAL 
values, one each for the recreational and commercial sectors. The 
relative shares of the annual coastwide harvest level for the 
recreational and commercial sectors are 83 and 17 percent, 
respectively. These values are based on the average catch composition 
of the two sectors during the 1981 through 1989 fisheries. The 
commercial TAL is further allocated to the states from Maine through 
Florida based on their percentage share of commercial landings for the 
period 1981 through 1989. However, this rule provides for an exception 
to the split of the annual coastwide harvest level between 83 percent 
of the recreational sector and 17 percent for the commercial sector. If 
17 percent of the annual coastwide harvest level for a given year is 
less than 10.5 million lb (4.8 million kg) and the recreational fishery 
is not projected to land its harvest limit for the upcoming year, the 
commercial TAL may be allocated up to 10.5 million lb (4.8 million kg) 
(the average commercial landings for the period 1991 through 1996) as 
its quota, provided that the combination of the projected recreational 
landings and the commercial quota does not exceed the TAL. This 
strategy was adopted to ensure that commercial landings would not be 
unduly constrained under a low annual coastwide harvest level and a 
proportionally low recreational landing. The annual coastwide harvest 
limit will be set annually, based on the F values specified in the 
rebuilding schedule, and a target F=0.36, once rebuilding is achieved.

Allocations for the Commercial Fishery

    For fishing year 1999, the states implemented a TAL of 36.84 
million lb (16.71 million kg), consistent with the first year of the 
rebuilding plan approved under Amendment 1 (see Sec. 648.160(a)). The 
commercial fishery was allocated 9.583 million lb (2.69 million kg). 
State-by-state allocation of the commercial TAL was based on the 
percentages listed in Sec. 648.160(e)(1).

Framework Adjustment Process

    In addition to the annual review and modifications to management 
measures associated with the Monitoring Committee process, Amendment 1 
and the final rule set forth procedures allowing the Council to add or 
modify management measures through a streamlined public review process 
called a framework adjustment process. As such, management measures 
that have been identified in Amendment 1 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 may then be implemented through a 
final rule without first publishing a proposed rule. The measure 
identified in Amendment 1 add 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 EFH and fishing gear management 
measures that impact EFH, and description and identification of habitat 
areas of particular concern.

Permit and Reporting Requirements

    This final rule adds permit and reporting requirements that mirror 
similar requirements for other Northeast fisheries. These measures 
include new permitting requirements for Federal commercial vessels, 
charter and party boats, dealers, and vessel operators, and new 
reporting requirements for commercial and charter/party boat vessels 
and dealers. In addition to logbook reporting, dealers will 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 vessel permitting system represents 
a modification of the present system where individuals, and not 
vessels, are issued a permit to sell bluefish. Under bluefish 
regulations prior to Amendment 1, any person selling a

[[Page 45846]]

bluefish harvested from the exclusive economic zone is identified as a 
commercial fisherman and must have had 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 allows 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. These individuals would be subject to the 
recreational possession limit and would no longer be able to sell 
bluefish.
    This rule also makes technical amendments to the regulations 
implementing the Spiny Dogfish FMP published on January 11, 2000, at 65 
FR 1557 and whose effectiveness was delayed, first, to March 15, 2000 
(65 FR 7461, February 15, 2000), second, to March 27, 2000 (65 FR 
15110, March 21, 2000), and third, to April 3, 2000 (65 FR 16844, March 
30, 2000). The final rule implementing the Spiny Dogfish FMP 
inadvertently removed the requirement contained in Sec. 648.5 for surf 
clam and ocean quahog operators to obtain an operator permit. This 
final rule corrects the regulations in Sec. 648.5(a) by adding surf 
clam and ocean quahog to the list of species identified.
    In addition, the final rule published on December 6, 1999 (64 FR 
68228), implemented measures to manage the American lobster fishery in 
the EEZ from Maine through North Carolina. The final regulations 
removed part 649 of 50 CFR Chapter VI. However, a crossreference to 
part 649 contained in Sec. 648.5 was not removed at the time of 
implementation of the final rule. This final rule removes the 
crossreference to part 649.

Comments and Responses

    Ten written comments on Amendment 1 were received by NMFS during 
the comment period established by the NOA for Amendment 1, which ended 
June 29, 1999. These comments were considered by NMFS before it 
partially approved Amendment 1 on July 29, 1999. Those comments 
received during the comment period on Amendment 1 are addressed here.
    NMFS received one additional comment on the proposed rule during 
the comment period ending on October 7, 1999. Because the comment 
period was distinct from, and followed the comment period for the 
amendment, the comment received during the proposed rule period was not 
considered in NMFS' determination to partially approve Amendment 1. 
This comment is addressed here.
    Comment 1: Two commenters considered the EFH portion of the 
Amendment to be overly broad and to exceed the intent of Congress. The 
commenters 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. 
One commenter notes that NMFS and the Council should clarify and 
elaborate on its views as to how the Amendment relates to the EFH 
consultation and recommendation requirements.
    Response: The Magnuson-Stevens Act defines EFH as those waters and 
substrate necessary to fish for spawning, breeding, feeding, or growth 
to maturity. The EFH regulations explain that this definition should be 
interpreted to include associated physical, chemical and biological 
properties that make the habitat appropriate for use by the species and 
may include aquatic areas historically used by fish where appropriate. 
The geographic extent of EFH for a species should be based on the 
habitat necessary to support a sustainable fishery and the managed 
species contribution to a healthy ecosystem, and can include state and 
Federal waters. The Council's EFH description and identification are 
consistent with these requirements. The information that the Council 
used for EFH designation was primarily species distributions and 
relative abundance data, which would be classified as ``Level 2'' 
information under the EFH regulations (50 CFR 600.815). The use of this 
data in determining EFH is fully explained within the text of the 
amendment. Upon approval of the EFH designations, Federal agencies must 
consult with NMFS regarding any action that may adversely affect EFH, 
and NMFS must provide conservation recommendations regarding any 
Federal or state agency action that would adversely affect EFH, 
pursuant to section 305(b) of the Magnuson-Stevens Act.
    Comment 2: A commenter stated that the conservation and enhancement 
recommendations for non-fishing impacts to EFH that are provided in the 
Amendment 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 other regulatory programs, 
and may cause severe over-regulation. One commenter also stated that 
the Magnuson-Stevens Act did not empower the Fishery Management 
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 this section of 
the Amendment is well researched and substantiated. Discussions of 
actions with the potential to adversely affect EFH and accompanying 
conservation and enhancement recommendations 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 exemplary and provided to assist non-
fishing 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 or similar recommendations are needed or 
implemented.
    Comment 3: Two commenters stated that the Amendment contains 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 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 may have a reasonably foreseeable adverse effect require 
consultation. The EFH regulations provide for streamlined consultation 
procedures in which the level of

[[Page 45847]]

consultation for any action is commensurate with the degree of 
potential impact to 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 4: One commenter expressed concern regarding the inclusion 
of two frameworkable measures: (1) ``Description and identification of 
EFH,'' and (2) ``Description and identification of habitat areas of 
particular concern.'' The commenter is concerned that the framework 
process would allow changes to these measures to be published as a 
final rule without first publishing them as a proposed rule. The 
commenter states that non-fishing interests lack representation at 
Council meetings and, therefore, will not have an opportunity to 
comment on actions regarding EFH. The commenter asserts that the 
framework adjustment process for these two measures will foster 
inconsistencies in treatment among the different NMFS Regions and the 
Councils, thereby complicating the EFH consultation process. The 
commenter requests that the inclusion of these measures be delayed 
until revision of NMFS EFH interim final regulations and guidelines.
    Response: The framework adjustment process requires the Councils, 
when making specifically allowed adjustments to the FMP, to develop and 
to analyze the actions over the span of at least two Council meetings. 
The Councils must provide the public with advance notice of the 
meetings through publication of the meeting agenda in the Federal 
Register, the proposals and the analysis, and provide an opportunity to 
comment on the proposals prior to, and at, the second Council meeting. 
Commenters may also submit written comments to the Council before or 
during the second Council meeting. Upon review of the analysis and 
public comment, the Council may recommend to the Administrator, 
Northeast Region, NMFS (Regional Administrator), that the measures be 
published as a final rule, if certain conditions are met. NMFS may 
either publish the measures as a final rule, or as a proposed rule if 
NMFS or the Council determines that additional public comment is 
needed. Within the guidelines, modifications to EFH and Habitat Areas 
of Particular Concern can be implemented in a expedited manner while 
providing ample notice and opportunity for comment by all stakeholders.
    Comment 5: A commenter stated that the Amendment generally failed 
to address the potential for significant adverse impacts of the 
Amendment on non-fishing entities, specifically citing the requirements 
of NEPA and the Regulatory Flexibility Act.
    Response: The description and identification of aquatic areas or 
substrate as EFH for a species or life stage does not carry with it any 
regulation or restriction of any activity. Following designation of 
EFH, NMFS, on behalf of the Secretary, is required to minimize, to the 
extent practicable, adverse impacts to EFH from fishing, and Federal 
action agencies are required to consult with NMFS on any action it 
authorizes, funds, or undertakes that may adversely affect EFH. NMFS' 
regulations of fishing in the EEZ or another action agency's regulation 
of non-fishing activities must comply with all applicable laws, such as 
the National Environmental Policy Act (NEPA) and the Regulatory 
Flexibility Act (RFA).
    Comment 6: One commenter asserts that the Amendment is inconsistent 
with the Magnuson-Stevens Act national standards 1, 2, and 7.
    Response: In regard to national standard 1, the Amendment utilizes 
a NMFS-certified overfishing definition developed by scientists from 
the Universities of Rhode Island and Connecticut. The overfishing 
definition was also adopted by the Bluefish Technical Monitoring 
Committee and approved by the Science and Statistical Committee of the 
Council. The rebuilding schedule will allow the stock of Atlantic 
bluefish to rebuild to a level of maximum sustainable yield in 9 years. 
The overfishing definition and rebuilding strategy are consistent with 
national standard 1. Because the overfishing definition for bluefish 
contains a Bthreshold = 1/2Bmsy and 
Btarget = Bmsy, and the Ftarget is 
less than Fmsy, the definition complies with national 
standard 1 guidelines. Also, the rebuilding schedule for bluefish is in 
compliance with national standard 1 because it is less than 10 years, 
but also takes into account the needs of fishing communities 
(especially in years 1 and 2 by not having a lower F value). The 
Amendment is consistent with national standard 2 since it relies on the 
best scientific information available.
    The commenter does not elaborate upon the assertion that the 
Amendment violates national standard 7, so NMFS assumes, for the 
purpose of responding to their comment, that the commenter is alleging 
that the EFH consultation process is duplicative of other federally 
required consultation procedures. NMFS has determined that the 
Amendment is consistent with the Magnuson-Stevens Act, including 
national standard 7. Interagency consultations on Federal activities 
that may adversely affect EFH are required by the Magnuson-Stevens Act. 
As explained earlier, EFH consultations will be incorporated whenever 
practicable into existing review processes and be accomplished within 
existing process time frames. NMFS is committed to a consultation 
process that will be effective, efficient, and non-duplicative. The EFH 
regulations at 50 CFR 600.920 suggest that NMFS be consulted as early 
as possible in project planning so that appropriate conservation 
measures can minimize the potential for adverse effects to the EFH. The 
Amendment contains conservation recommendations that are appropriate 
for many Federal actions, and that can also serve as guidelines during 
project planning.
    Comment 7: One commenter believed the Council should have adopted a 
5-year rebuilding strategy in lieu of a 9-year strategy explaining that 
a 5-year plan would end overfishing and begin recovery as soon as 
possible. In addition, the 5-year rebuilding schedules evaluated by the 
Council show that the recovery alternatives generate similar and 
sometimes greater cumulative commercial revenues and cumulative 
recreational harvest limits compared to the preferred alternative.
    Response: The Council believes and NMFS agrees that the 9-year 
strategy could mitigate short-term potential negative economic impacts 
to the recreational and, under certain scenarios, to the commercial 
sector. The Amendment will allow a transfer of up to 10.5 million lb 
(4.8 million kg) to the commercial sector if the recreational sector is 
not projected to take their share of the quota. In the years that this 
entire amount can be transferred, there is no difference in revenues to 
the commercial sector, because under any rebuilding strategy this 
sector would be able to fish the 10.5 million lb (4.8 million kg) cap. 
However, in years when the transfers cannot take place the commercial 
quotas would be substantially less under the 5-year plan as opposed to 
the 9-year plan. Recreational revenues are usually less for the first 
five years under the 5-year rebuilding plans, but much greater 
thereafter. NMFS recognizes that overfishing may occur in 1999 and 2000 
although given recent landings information this seems highly unlikely. 
Recreational landings have been decreasing and were roughly half of the

[[Page 45848]]

present quota in 1997. However, NMFS believes that the Council, in 
adopting the 9-year strategy, is attempting to end overfishing as soon 
as possible while maintaining an optimum yield that will not unduly 
harm participants in the fishery.
    Comment 8: Two commenters were concerned about the potential 
economic and social impacts of a minimum recreational size limit and 
effects of the size limit on communities.
    Response: This is a moot issue since the Amendment does not 
implement a size limit, only a mechanism for doing so through the 
framework or the annual adjustment process. The required analysis would 
be completed at that time. Shore based fisheries are regulated by state 
actions that may complement Amendment 1, but are not directly regulated 
by the FMP.
    Comment 9: One commenter raised concern with transferring the 
projected recreational surplus of up to 10.5 million pounds to the 
commercial quota. The commenter believes that this will increase the 
length of time required for the stock to rebuild.
    Response: The Council adopted this strategy to ensure that 
commercial landings would not be unduly constrained under low allowable 
harvest levels and proportionally low recreational landings. Commercial 
and recreational bluefish industry representatives who attended Council 
and committee meetings on Amendment 1 support this compromise. The 
recreational and commercial quotas would be set annually based on the 
fishing mortality rates specified in the rebuilding schedule. This 
matter is discussed in length in the Initial Regulatory Flexibility 
Analysis (IRFA) summary contained in the classification section of the 
proposed rule.
    Comment 10: One commenter had concerns regarding National Standard 
8, which requires management measures to consider affects on 
communities, and section 303(a)(9), which requires a fishery impact 
statement.
    Response: The description and analysis of fishing communities was 
disapproved because the communities involved in the present day fishery 
are not sufficiently identified and Amendment 1 does not describe or 
consider impacts on recreational fishing communities, such as Ocean 
City, Maryland, Virginia Beach, Virginia, or Oregon Inlet, North 
Carolina. The fishing communities section of Amendment 1 is based on 
the 1993 surveys of the Mid-Atlantic commercial fishing communities by 
McCay et al. Dependence of communities on the fishery is not assessed 
or considered, and the requirements of Section 303(a)(9) and National 
Standard 8 have not been satisfied. However, NMFS informed the Council 
of these deficiencies of the Amendment and expects the Council to 
provide this type of analysis in the future.
    Comment 11: One commenter believed that charter/party vessels 
should not be subject to the monthly vessel trip report (VTR) 
requirements due to the existing Marine Recreational Fisheries 
Statistics Survey and the apparent lack of rationale for requiring 
monthly logbooks. In addition, the commenter states that hull 
identification numbers should be included as a required element of 
permits and reporting logbooks, and that Amendment 1 should not be 
inconsistent with the Atlantic Coastal Cooperative Statistics Program 
(ACCSP) system.
    Response: The VTRs for charter/party vessels are currently 
necessary to ensure appropriate quota monitoring in fisheries. The VTR 
is an established system of mandatory reporting familiar to and used by 
the Council for quota and total allowable catch monitoring purposes. 
This reporting requirement will help satisfy the required provision of 
the Magnuson-Stevens Act to describe and to quantify trends in landings 
of the commercial, recreational and charter fishing sectors. Hull 
identification numbers, either U.S. Coast Guard (USCG) documentation 
number or state registration number, are required information on VTRs, 
and this will be clarified in the regulatory text. While the ACCSP may 
establish preferable monitoring systems, the program is not operational 
in the region. Until such time as the ACCSP establishes an appropriate 
monitoring system, the VTRs are necessary. The data collection aspects 
of Amendment 1 are subject to the framework adjustment process to allow 
for conversion to the ACCSP program in the future.

Changes From the Proposed Rule

    In Sec. 648.4(a)(8)(ii), the phrase ``to fish for bluefish'' was 
expanded to read ``to fish for, possess, or land Atlantic bluefish in 
or from the EEZ.''
    In Sec. 648.7, paragraph (b) was revised to add spiny dogfish to 
the list of species for which permit conditions apply. The final rule 
implementing the Spiny Dogfish FMP became effective on April 3, 2000, 
after the proposed rule for Amendment 1 to the Bluefish FMP was 
published.
    Several paragraphs in Sec. 648.7 were modified to make it easier 
for the public to understand which dealers are affected by the 
reporting requirements specified in that part. The current mandatory 
dealer reporting system was incorporated into each fishery management 
plan through plan amendments that occurred over a period of years. As 
amendments were implemented this section listed by species the dealers 
subject to this requirement. Now that the requirement has been 
incorporated into all of the Northeast Region fishery management plans, 
it is not necessary to list dealer permits by species. Therefore, 
Sec. 648.7(a)(1)(i) has been modified to show it applies to ``All 
dealers issued a dealer permit under this part, with the exception of 
those utilizing the surf clam or ocean quahog dealer permit;'' 
Sec. 648.7(a)(3)(i) has been modified to show that it applies to ``All 
dealers issued a dealer permit under this part.''
    For the same reason, a similar modification was made to 
Sec. 648.7(b)(1)(i) to clarify that the vessel reporting requirement 
applies to ``The owner or operator of any vessel issued a permit under 
this part.''
    In Sec. 648.14(w)(2), the phrase ``Atlantic bluefish taken from a 
fishing vessel'' was expanded to read ``Atlantic bluefish taken from a 
fishing vessel that were harvested in or from the EEZ.'' In 
Sec. 648.14(w)(3), the phrase ``dealer or transferee has a dealer 
permit issued under Sec. 648.6(a)'' was replaced by ``vessel has a 
valid bluefish permit issued under Sec. 648.4(a)(8)(i).'' The 
prohibition at Sec. 648.14(w)(7) was removed and replaced by ``To 
purchase or otherwise receive for a commercial purpose bluefish 
harvested from the EEZ after the effective date of the notification 
published in the Federal Register stating that the commercial quota has 
been harvested.'' A new paragraph was added at Sec. 648.14(w)(8) that 
prohibits dealers from purchasing bluefish from federally-permitted 
vessels after publication of a notification stating that the commercial 
quota has been harvested.
    Section 648.160(d) is revised to indicate that NMFS will only issue 
one proposed rule and final rule annually in the Federal Register to 
include both the commercial and recreational measures. The proposed 
rule for Amendment 1 indicated that a separate proposed and final rule 
would be issued annually for recreational fishing measures.
    NOAA codifies its OMB control numbers for information collection at 
15 CFR part 902. Part 902 collects and displays the control numbers 
assigned to information collection requirements of NOAA by OMB pursuant 
to the Paperwork Reduction Act (PRA). This final rule codifies OMB 
control number

[[Page 45849]]

0648-0202 for Secs. 648.91 through 648.94, and Sec. 648.96.
    Under NOAA Administrative Order 205-11, dated December 17, 1990, 
the Under Secretary for Oceans and Atmosphere has delegated to the 
Assistant Administrator for Fisheries, NOAA, the authority to sign 
material for publication in the Federal Register.

Classification

    NMFS determined on July 29, 1999, that Amendment 1 that this rule 
implements 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.
    This rule has been determined to be significant for the purposes of 
Executive Order 12866.
    The Council prepared an FEIS for this Amendment; an NOA for the 
FEIS was published in the Federal Register on June 25, 1999. NMFS 
determined upon review of Amendment 1 and its accompanying FEIS and 
public comments that approval and implementation of Amendment 1 is 
environmentally preferable to the status quo. The FEIS demonstrates 
that it contains management measures able to halt overfishing and to 
rebuild the Atlantic bluefish stock; protect marine mammals and 
endangered species; provide economic and social benefits to the fishing 
industry in the long term; and contribute to better balance in the 
ecosystem in terms of the Atlantic bluefish resource.
    In compliance with the RFA, the Council prepared and NMFS adopted 
an IRFA contained in Amendment 1 that describes the economic impacts of 
the proposed rule, if adopted, on small entities. The final regulatory 
flexibility analysis (FRFA) consists of the IRFA, public comments and 
responses thereto, the analysis of impacts and alternatives in 
Amendment 1 to the Atlantic Bluefish FMP, a description of the need 
for, and objectives of the rule found in the preamble of the proposed 
rule, and a summary of the impacts on small entities as published in 
the classification section of the proposed rule, all of which are not 
repeated here. A summary of the FRFA is as follows:

Need for and Objectives of the Rule

    NMFS is issuing this final rule to implement approved management 
measures contained in Amendment 1 to the Bluefish FMP. The purpose of 
this rule is to control fishing mortality of bluefish and begin 
rebuilding the stock.

Public Comments

    There were several public comments submitted during the public 
comment period for the proposed rule that related to impacts on small 
entities, including comments 5 and 8. The public comments and responses 
thereto are contained in the preamble to this rule. No changes were 
made to the proposed rule.

Number of Small Entities

    In the full permit year of 1998, there were 1,126 Federal bluefish 
permits issued to individuals. All of these individuals readily fall 
within the definition of a small business. NMFS estimated that 190 
Federal permits held by individuals are associated with commercial 
vessel ownership. The number of recreational vessels that sell their 
catch and could apply for a vessel permit is unknown.

Projected Reporting and Recordkeeping Requirements

    This rule would 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 IVR system to assure 
timely reports for purposes of quota monitoring.

Cost of Compliance

    The alternatives concerning vessel and dealer permitting and 
reporting have no effect on revenues and represent a minute portion of 
the cost of doing business. The Council estimated that 249 new vessel 
permit applicants, 500 new charter/partyboat vessel permit applicants, 
and 97 dealers would each spend $7.50 to apply for a permit and $20.00 
per year for reporting requirements. In addition, no special knowledge 
is required to fill out the permit application. No additional costs of 
compliance would result from the implementation of the preferred or 
other alternative.

Steps Taken to Minimize Economic Impacts

    This final rule minimizes economic impacts on small entities by 
implementing a 9-year rebuilding plan. Rebuilding may occur faster if 
fishing for bluefish in Federal waters were prohibited altogether. 
However, the Council recommended and NMFS implements through this rule 
a 9-year rebuilding program that takes into account the economic needs 
of fishery participants to continue some level of fishing for bluefish 
while also meeting the statutory requirement to rebuild the fishery in 
as short a time frame as possible but within 10 years.

Reason for Selecting Alternatives in the Rule and Reasons for Rejecting 
Other Alternatives

    The alternative rebuilding schedules were rejected, because they 
would not have provided the same stability in projected yields, and 
would have resulted in greater short-term economic losses for the 
commercial sector, compared to the alternative implemented by this 
rule.
    The quota allocation between the commercial and recreational 
fisheries implemented by this rule was chosen because it was based on 
time period (1981-1989) that reflects the composition of the fishery 
when bluefish stock abundance was fairly high and stable. The 
recreational harvest limit of 10 fish was chosen in order to keep 
recreational harvest within its allocation over the course of the 
fishing year. The quota allocation periods other than 1981-1989 that 
were evaluated for the basis of any split between the commercial and 
recreational sectors were either too short (e.g., 1985-1989) or were 
based partly on catches attained during periods of relatively low stock 
abundance (e.g., 1981-1993) ; therefore they were rejected.
    The commercial vessel, charter/party boat and dealer permitting and 
reporting requirements implemented by this rule were chosen over the 
status quo (individual permits) so that NMFS will be better able to 
monitor the quota, to close the commercial fishery when the quota is 
reached, and evaluate harvest capacity. 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 would likely 
be undermined, because it would be very 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

[[Page 45850]]

of individual permits. The ability to monitor and to enforce commercial 
fishing quotas is essential to meeting the agency's fishery 
conservation and management responsibilities under the Magnuson-Stevens 
Act.

Paperwork Reduction Act

    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    This rule contains 8 new collection-of-information requirements 
subject to the Paperwork Reduction Act. These collection-of-information 
requirements have been approved by the OMB, and the OMB control numbers 
and public reporting burden are listed as follows:
    Bluefish vessel permits, OMB control number 0648-0202 (30 minutes/ 
response).
    Bluefish dealer permits, OMB control number 0648-0202 (12 minutes/ 
response).
    Bluefish vessel identification, OMB control number 0648-0202 (45 
minutes/ response).
    Employment section of the Processed Products Report, OMB control 
number 0648-0202 (2 minutes/response).
    State quota transfer applications, OMB control number 0648-0202 (60 
minutes/response). Vessel trip reports, OMB control number 0648-0212 (5 
minutes/response).
    Dealer reports through IVR system, OMB control number 0648-0229 (4 
minutes/response).
    Dealer reports for NOAA Form 30-80, OMB control number 0648-0229 (2 
minutes/response).
    The estimated response time includes the time needed 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 reporting 
burden estimates or any other aspect of the collection-of-information, 
including suggestions for reducing the burden, to NMFS and OMB (see 
ADDRESSES).

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: July 17, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 15 CFR part 902, chapter 
IX, and 50 CFR part 648, chapter VI, are amended as follows:

15 CFR Chapter IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT; OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:

    Authority: 44 U.S.C. 3501 et seq.


    2. In Sec. 902.1, the table in paragraph (b) under 50 CFR is 
amended by revising the entry for Sec. 648.7 and adding a new entry for 
Sec. 648.160 to read as follows:


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

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                             Current OMB control number
 CFR part or section where the information  (all numbers begin with 0648-
     collection requirement is located                    )
------------------------------------------------------------------------
 
                  *        *        *        *        *
50 CFR
 
                  *        *        *        *        *
648.7                                        -0018, -0202, -0212, and -
                                             0229
 
                  *        *        *        *        *
648.160                                      -0202
 
                  *        *        *        *
------------------------------------------------------------------------

50 CFR Chapter VI

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, paragraphs (a)(8), (b) and (c)(2)(i) are revised, 
and paragraph (c)(3) is removed as follows:


Sec. 648.4  Vessel permits.

    (a) * *ensp;*
    (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 permit to 
fish for, possess, or land Atlantic bluefish in or from the EEZ if it 
is carrying passengers for hire. Persons on board 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, spiny dogfish, 
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

[[Page 45851]]

respective species. A state not receiving an allocation of summer 
flounder, scup, black sea bass, spiny dogfish, 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 information, and any 
other information 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 title 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 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, 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, surf 
clam, ocean quahog, mackerel, squid, butterfish, scup, black sea bass, 
spiny dogfish, 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. An 
operator's permit issued pursuant to part 697 of this chapter satisfies 
the permitting requirement of this section. This requirement does not 
apply to operators of recreational vessels.
* * * * *

    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, spiny dogfish, 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, in paragraphs (a)(1)(i) and (a)(3)(i) the first 
sentence is revised and in paragraph (b)(1)(i) the heading is removed 
and (b)(1)(i) is revised as follows:


Sec. 648.7  Record keeping and reporting requirements.

    (a) * * *
    (1) * * *
    (i) All dealers issued a dealer permit under this part, with the 
exception of those utilizing the surf clam or ocean quahog dealer 
permit, 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) or total value 
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) All dealers issued a dealer permit under this part, with the 
exception of those processing only surf clams or ocean quahogs, 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) The owner or operator of any vessel issued a permit under this 
part 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. If authorized in writing by the Regional Administrator, 
a vessel owner or operator may submit reports electronically, for 
example by using a VMS or other media. With the exception of those 
vessel owners or operators fishing under a surf clam or ocean quahog 
permit, at least the following information and any other information 
required by the Regional Administrator must be provided: Vessel name, 
USCG documentation number (or state registration number, if 
undocumented); permit number; date/time sailed; date/time landed; trip 
type; number of crew; number of anglers (if a charter or party boat); 
gear fished; quantity and size of gear; mesh/ring size; chart area 
fished; average depth; latitude/longitude (or loran station and 
bearings); total hauls per area fished; average tow time duration; 
pounds by species (or count,

[[Page 45852]]

if a party or charter vessel) of all species landed or discarded; 
dealer permit number; dealer name; date sold; port and state landed; 
and vessel operator's name, signature, and operator's permit number (if 
applicable).
* * * * *

    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 spiny dogfish, 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, or a spiny dogfish 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 
spiny dogfish, 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 
spiny dogfish, or other specimens taken by the 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 and 
monkfish), G (summer flounder), H (scup), I (black sea bass), J 
(bluefish), K (spiny dogfish), 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, the spiny dogfish, and the 
bluefish fisheries.
* * * * *

    9. In Sec. 648.14, paragraphs (w)(1) through (5) are revised and 
paragraphs (w)(6), (w)(7), (w)(8), and (x)(9) 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)(i) 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 solely for transport on land, Atlantic 
bluefish taken from a fishing vessel that were harvested in or from the 
EEZ 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 that were harvested in or from the EEZ, unless the vessel has 
been issued a valid bluefish permit under Sec. 648.4(a)(8)(i).
    (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.
    (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) To purchase or otherwise receive for a commercial purpose 
bluefish harvested from the EEZ after the effective date of the 
notification published in the Federal Register stating that the 
commercial quota has been harvested.
    (8) To purchase or otherwise receive for a commercial purpose 
bluefish harvested by a federally permitted vessel after the effective 
date of the notification published in the Federal Register stating that 
the commercial quota has been harvested.
    (x) * * *
    (9) All bluefish possessed on board a party or charter vessel 
issued a permit under Sec. 648.4(a)(8)(ii) 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.


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 determine 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 0 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 0 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. A total 
of 83 percent of the TAL will be allocated to the recreational fishery 
as a harvest limit.
    (2) Commercial quota. A total of 17 percent of the TAL will be 
allocated to the commercial fishery as a quota. If 17 percent of the 
TAL is less than 10.5 million lb (4.8 million kg) and the

[[Page 45853]]

recreational fishery is not projected to land its harvest limit for the 
upcoming year, the commercial fishery may be allocated up to 10.5 
million lb (4.8 million 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, NMFS will publish a proposed rule in the Federal Register on or 
about October 15, to implement a coastwide commercial quota and 
recreational harvest limit and additional management measures for the 
commercial and recreational fisheries to assure that the applicable 
specified F will not be exceeded. After considering public comment, 
NMFS will publish a final rule in the Federal Register.
    (e) Distribution of annual commercial 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 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 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 
Bluefish 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 upon the filing by NMFS of a notification of the 
approval of the transfer or combination with the Office of 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 
notification that the Regional Administrator has disapproved the 
previous request or when notification 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 hanges in allocation.


Sec. 648.161  Closures.

    (a) EEZ closure. NMFS 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 the Regional 
Administrator 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. NMFS 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. NMFS shall publish notification in the Federal 
Register advising a state that, effective upon a specific date, its 
commercial quota has

[[Page 45854]]

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 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 Secs. 648.160(d) or 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 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 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 recommendation 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's 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.
    (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. 00-18648 Filed 7-25-00; 8:45 am]
BILLING CODE 3510-22-F