[Federal Register Volume 66, Number 64 (Tuesday, April 3, 2001)]
[Proposed Rules]
[Pages 17673-17680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8163]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 010319075-1075-01; I.D. 011101A]
RIN 0648-AF87


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Tilefish 
Fishery; Tilefish Fishery Management Plan

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

ACTION:  Proposed rule; request for comments.

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SUMMARY:  NMFS proposes regulations to implement the Fishery Management 
Plan for Tilefish (FMP). The FMP was developed by the Mid-Atlantic 
Fishery Management Council (Council) and would initiate management of 
golden tilefish (Lopholatilus chamaeleonticeps) pursuant to the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The management unit is defined as all golden tilefish in 
the exclusive economic zone (EEZ) from Maine to the Virginia/North 
Carolina border. The intended effect of this proposed rule is to stop 
overfishing and to rebuild the tilefish stock in the Northwest Atlantic 
Ocean.

DATES:  Comments must be received on or before May 18, 2001.

ADDRESSES: Comments on this proposed rule should be sent to Patricia A. 
Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 
Blackburn Drive, Gloucester, MA 01930-2298. Mark the outside of the 
envelope: ``Comments on Tilefish Plan Proposed Regulations.'' Comments 
may also be sent via facsimile (fax) to (978) 281-9135. Comments will 
not be accepted if submitted via e-mail or the Internet.
    Comments on the collection-of-information requirements that would 
be established by this proposed rule should be sent to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Washington, DC 20503 (Attention: NOAA Desk Officer) and to the Regional 
Administrator, NMFS, Northeast Region (see previous address).
    Copies of the FMP, its Regulatory Impact Review (RIR)/Initial 
Regulatory Flexibility Analysis (IRFA), and the Final Environmental 
Impact Statement (FEIS) are available from Daniel T. Furlong, Executive 
Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal 
Building, 300 South New Street, Dover, DE 19904-6790.

FOR FURTHER INFORMATION CONTACT: Myles Raizin, Fishery Policy Analyst, 
978-281-9104, e-mail at [email protected], fax at (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Results of the NMFS 1998 stock assessment of tilefish indicate that 
the tilefish stock is at a low biomass (B) level and is overexploited. 
Total biomass in 1998 was estimated to be 6.8 million lb (3.1 million 
kg), which is approximately 35 percent of the biomass that would 
produce maximum sustainable yield (MSY) or BMSY. The 
biomass-based fishing mortality rate (F) in 1998 was estimated to be 
0.45, which is about double the F that would produce MSY or 
FMSY where FMSY = 0.22. Total landings of 
tilefish in 1998 were 2.7 million lb (1.2 million kg), which is 
significantly less than the estimated MSY of 4.2 million lb (1.9 
million kg). Total landings of tilefish in 1999 decreased to 1.2 
million lb (0.544 million kg).
    To meet the requirements of the Magnuson-Stevens Act, the FMP would 
establish the following: An overfishing definition; a stock rebuilding 
strategy; a limited entry program; a commercial quota; permit and 
reporting requirements for commercial vessels, operators, and dealers; 
a Tilefish Monitoring Committee; a framework adjustment process; and 
identification and designation of tilefish essential fish habitat 
(EFH). A notice of availability of the FMP was published at 66 FR 9814, 
February 12, 2001, with a 60-day comment period ending on April 13, 
2001.

Overfishing Definition

    The Magnuson-Stevens Act requires that each fishery management plan 
specify objective and measurable status determination criteria for 
identifying when stocks or stock complexes are overfished. The Council 
would establish status determination criteria based on a maximum F 
threshold and a minimum B threshold. The maximum F threshold would be 
specified as FMSY, and the minimum B threshold would be 
specified as 1/2 BMSY. The Magnuson-Stevens Act national 
standard guidelines suggest that risk-averse fishing mortality and 
biomass targets be specified. For tilefish, the Council

[[Page 17674]]

adopted a target fishing mortality rate (Ftarget) equal to 
the annual F determined from the rebuilding schedule in the FMP. The 
Council chose a target stock B (Btarget) equal to 
BMSY (Btarget = 18.6 million lb (8,448 mt)).

Stock Rebuilding Schedule

    The Council proposes a rebuilding schedule of 10 years, with 
measures designed to provide a 50-percent probability of attaining 
BMSY at the end of the 10-year period. Total allowable 
landings (TAL) for each of the next 10 fishing years would be set at 
1.995 million lb (905,172 kg). The rebuilding schedule would reduce F 
from its 1998 level of 0.45, to 0.29 in the first year, and gradually 
down to F = 0.11 in the tenth year.

Commercial Vessel Permitting

Limited Entry Categories

    The Council identified two groups as having participated in the 
directed bottom longline fishery for tilefish. One group is composed of 
primarily New Jersey and Rhode Island vessels that fished for tilefish 
in the 1970s and 1980s. The other group is composed of a small number 
of present participants homeported in Montauk, NY. The majority of the 
New Jersey longline vessels left the fishery in the mid- to late-1980s 
to fish, for the most part, on swordfish, which was considered a more 
profitable fishery.
    The Council proposes a two-tier full-time category and a part-time 
category. To qualify for the full-time tier 1 category, a vessel must 
have landed at least 250,000 lb (113,430 kg) per year for 3 years 
between 1993 and 1998. To qualify for the full-time tier 2 category, a 
vessel must have landed at least 30,000 lb (13,612 kg) of tilefish per 
year for 3 years between 1993 and 1998. To be in the part-time 
category, a vessel must have landed 10,000 lb (4,537 kg) or more of 
tilefish in at least 1 year between 1988 and 1993, and 10,000 lb (4,537 
kg) or more in at least 1 year between 1994 and 1998, or 28,000 lb 
(12,704 kg) or more of tilefish in at least 1 year between 1984 and 
1993. Data indicate that 4 vessels would qualify for each of the two 
full-time tiers, and 44 would qualify for the part-time category. 
Because tier 1 full-time vessels must meet a higher threshold for 
historical landings, tier 1 vessels would be allocated a larger share 
of full-time quota than tier 2 vessels. The 4 vessels that would 
qualify for tier 1 are all homeported in Montauk, NY. A trigger in the 
FMP would require the Council to amend the limited entry program, which 
utilizes 1984-98 data, once the stock has been rebuilt to 
BMSY, to allow the entry of vessels that were historical 
participants in the fishery.
    The Council also proposes to restrict entrants into the limited 
access fishery to those vessels that fish with longline gear only. This 
provision was included because data indicate that otter trawls, for the 
most part, have not directed their fishing efforts on tilefish. The 
Council also noted that bottom- tending mobile gear could potentially 
have a detrimental impact on tilefish habitat.
    Vessel owners or operators would not be allowed to obtain a 
tilefish limited access permit for more than one limited access 
category. In addition, vessel owners or operators who would be issued a 
limited access permit would not qualify for an incidental catch permit. 
This provision would prevent limited access vessels from harvesting 
tilefish once the annual quota for their permit category is attained.

Incidental Catch Category

    The Incidental Catch Permit would be an open access permit. A trip 
limit of 300 lb (138 kg) would be implemented for vessels in this 
category. Vessels with incidental catch permits would not be restricted 
to longline gear only.

Commercial Quota Allocation

    The quota would be divided among the three limited access 
categories after 5 percent of the TAL is deducted to reflect landings 
by vessels issued incidental catch permits. After adjusting for the 
incidental catch, the remaining TAL would be allocated as follows: 
Full-time tier 1 category, 66 percent; full-time tier 2 category, 15 
percent; and part-time category, 19 percent. If the Administrator, 
Northeast Region, NMFS (Regional Administrator) determines that the 
quota for a certain limited access category is expected to be exceeded, 
the Regional Administrator would close the EEZ to fishing for tilefish 
by those vessels in that category for the remainder of the fishing 
year. NMFS would publish a notification of the closure in the Federal 
Register. Any overages that occur in the quota for any limited access 
category in a given fishing year would be subtracted from the quota for 
that category in the following fishing year. If incidental catch 
exceeds 5 percent of the TAL for a given fishing year, the trip limit 
of 300 lb (138 kg) may be reduced in the following year.

Vessel Operator Permit

    Any individual who operates a vessel for the purpose of fishing 
commercially for tilefish would be required to obtain an operator's 
permit. Any vessel fishing commercially for tilefish would be required 
to have on board at least one operator who holds an operator's permit, 
who would be held accountable for any violations of the fishing 
regulations by that vessel and those aboard, and who would be subject 
to a permit sanction for such violations. During the permit sanction 
period, the individual operator could not work in any capacity aboard a 
federally permitted fishing vessel. An individual who already holds an 
operator's permit for another federally managed fishery would not need 
to apply for another operator permit, since NMFS issues only one 
operator permit for all federally managed fisheries.

Dealer Permit

    Any dealer of tilefish would be required to have a Federal dealer's 
permit. A dealer of tilefish is defined as a person or firm that 
receives tilefish harvested in or from the EEZ for a commercial purpose 
other than transport.

Reporting Requirements for Commercial Vessels and Dealers

    Vessel owners with permits issued pursuant to the FMP would be 
required to submit vessel logbooks within 15 days of the end of the 
reporting month, in order for NMFS to monitor the fishery. The logbook 
would require vessels to report everything caught, including bycatch, 
and would be the same as the logbooks required under other Federal 
fishery management plans. Owners and operators of vessels issued a 
limited access permit would be required to report landings under an 
interactive voice response (IVR) reporting system for vessels.
    Dealers with permits issued pursuant to the FMP would be required 
to submit weekly reports that would include the quantity of tilefish 
purchased (in pounds) and the name and permit number of the individuals 
from whom the tilefish was purchased, among other information. Buyers 
that do not purchase tilefish directly from vessels would not be 
required to submit reports under this provision. Processors would be 
required to submit the Annual NMFS Processed Product Report.

Annual Specification Process

     The Tilefish Monitoring Committee established under the FMP would 
be a joint committee made up of representatives of the Council staff, 
the NMFS Northeast Regional Office, the NMFS Northeast Fisheries 
Science Center, the states (Maine to Virginia), and the fishing 
industry. State representatives could include any

[[Page 17675]]

individuals designated by their respective states. There would be a 
maximum of three state representatives, with the New England states 
having one and the Mid-Atlantic states having up to two. There would 
also be a non-voting industry advisor who would be appointed by the 
Council Chairman. The Council's Executive Director or his designee 
would chair the Committee. The Tilefish Monitoring Committee would 
review annually the best available data and make recommendations to the 
Tilefish Committee regarding the specification of quotas and management 
measures to implement those quotas for the upcoming year. The Council 
would consider the report of the Tilefish Committee, as well as public 
input, in determining the quota recommendation for the next fishing 
year. Upon receiving a quota recommendation from the Council, NMFS 
would publish a proposed rule in the Federal Register soliciting public 
comment on the Council's recommendations. NMFS, after receiving public 
comment, could specify quotas other than those recommended by the 
Council, provided that the quotas are consistent with the objectives of 
the FMP and that the reason for the change in the Council's recommended 
quota is clearly stated.

Framework Adjustment Process

    In addition to the annual specification adjustment, the Council 
could add or modify management measures through a framework adjustment 
process at any time during the year. This adjustment procedure would 
allow the Council to add or modify management measures through a 
streamlined public review process. The following specific management 
measures could be implemented or adjusted at any time through the 
framework process: (1) Minimum fish size, (2) minimum hook size, (3) 
closed seasons, (4) closed areas, (5) gear restrictions or 
prohibitions, (6) permitting restrictions, (7) gear limits, (8) trip 
limits, (9) overfishing definition and related thresholds and targets, 
(10) annual specification quota setting process, (11) FMP Monitoring 
Committee composition and process, (12) description and identification 
of EFH, (13) fishing gear management measures that affect EFH, (14) 
habitat areas of particular concern, and (15) set-aside quotas for 
scientific research.
     The adjustment procedure would involve the following steps. If the 
Council determines that an adjustment to management measures is 
necessary to meet the goals and objectives of the FMP, it would 
recommend, develop, and analyze appropriate management actions over the 
span of at least two Council meetings. The Council would provide the 
public with advance notice of the availability of the recommendation, 
the appropriate justifications and economic and biological analyses, 
and an opportunity to comment on the proposed adjustments before and 
during the second Council meeting on that framework action. After 
developing management actions and receiving public comment, the Council 
would submit the recommendation to the Regional Administrator. The 
recommendation would include supporting rationale, an analysis of 
impacts, and a recommendation on whether to publish the management 
measures as a final rule. If, after reviewing the Council's 
recommendation and supporting information, the Regional Administrator 
concurs with the Council's recommended management measures and 
determines that the recommended management measures may be published as 
a final rule, the action would be published in the Federal Register as 
a final rule. If the Regional Administrator concurs with the Council's 
recommendation, but determines that the recommended measures should be 
published first as a proposed rule to obtain additional public comment, 
the action will be published as a proposed rule in the Federal 
Register. If, after additional public comment, the Regional 
Administrator concurs with the Council's recommendation, the action 
will be published as a final rule in the Federal Register. If the 
Regional Administrator does not concur with the Council's 
recommendation, the Council will be notified, in writing, of the reason 
for non-concurrence.

Identification and Description of Tilefish EFH

    Tilefish EFH would be defined as the water column and substrate 
between the 250 and 1,200 ft (105 to 366 m) isobath, from the U.S./
Canadian boundary to the Virginia/North Carolina boundary. 
Additionally, the area included as EFH in NMFS statistical areas 537 
and 616, as defined at section 2.2.2.2.1 and shown in Figures 4 and 5 
of the FMP, would be identified as Habitat Areas of Particular Concern 
(HAPC), since greater than 90 percent of the recent tilefish landings 
come from these areas.

Other Measures

    The Regional Administrator would be authorized to place sea 
samplers (observers) aboard vessels if it is determined that a 
voluntary sea sampling system is not producing a representative sample 
from the tilefish fishery. Fishing vessels would be encouraged to leave 
an area following an interaction with an endangered species in order to 
minimize the probability of additional encounters.
     The Regional Administrator, in consultation with the Council 
Executive Director, could exempt any person or vessel from the 
requirements of the FMP in order to conduct experimental fishing 
beneficial to the management of the tilefish resource or fishery. The 
Regional Administrator could not grant such an exemption unless it is 
determined that the purpose, design, and administration of the 
exemption are consistent with the objectives of the FMP, the provisions 
of the Magnuson-Stevens Act, and other applicable law. The exemption 
could not have a detrimental effect on the tilefish resource or 
fishery, cause any quota to be exceeded, or create significant 
enforcement problems.

Classification

    At this time, NMFS has not determined that the FMP that this rule 
would implement is consistent with the national standards of the 
Magnuson-Stevens Act and other applicable laws. NMFS, in making that 
determination, will take into account the data, views, and comments 
received during the comment period.
    The Council prepared an IRFA that describes the economic impact 
this proposed rule, if adopted, would have on small entities. A summary 
of this analysis follows:
    A description of the reasons why action by the agency is being 
considered and the objectives and legal basis of the proposed rule are 
explained in the preamble to this rule and in the IRFA and are not 
repeated here. All of the affected businesses (fishing vessels and 
dealers) qualify as small entities under the standards described in 
NMFS guidelines.

Economic Impacts on Dealers and Processors

    In 1998, 83 Federal seafood dealers handled tilefish. Seventy-three 
of these derived less than 5 percent of their revenues from tilefish, 
and only 5 depended on tilefish for more than 20 percent of their 
revenues; one of them, however, derived 100 percent of his revenues 
from tilefish. In terms of value, 21 dealers reported annual revenue 
from tilefish of over $10,000, 7 reported revenue over $50,000, and 1 
reported revenue of between 1 and 5 million dollars.
    Fewer than three processors reported processing tilefish for the 
Northeast and

[[Page 17676]]

South Atlantic combined in the 1998 NMFS Processed Products Survey. As 
such, all data for these processors are confidential. All the firms 
reporting were small entities, and tilefish constitute a very small 
percentage of their total volume and value.

Economic Impacts on Vessels

     In 1998, 215 different vessels landed tilefish along the Atlantic 
coast. Under the FMP, any vessel fishing commercially for tilefish 
would have to obtain a Federal vessel tilefish permit. Based on 1998 
data, the percentage of the limited access, incidental, and total 
vessels that would incur revenue losses of 5 percent or greater under 
the proposed rule was 10.0 percent, 2.5 percent, and 4.0 percent, 
respectively. However, an analysis of vessels that would qualify for 
limited access under the proposed rule reveals that 100 percent of the 
full-time tier 1 category vessels, 25 percent of the full-time tier 2 
category vessels, and none of the part-time category vessels would 
incur revenue reductions of 5 percent or greater. One vessel that would 
not qualify for the limited access program but could obtain an 
incidental category permit is projected to incur revenue losses of 50 
percent or greater. This vessel had substantial landings of tilefish in 
1998 and very few landings of other species. Since this vessel would be 
in the incidental category, it would be limited to landing 300 lb (138 
kg) of tilefish per trip.
    Economic Impacts Resulting From Reporting and Recordkeeping 
Requirements
    It is estimated that, in 1998, 215 different vessels landed 
tilefish along the Atlantic coast. Under the proposed rule, any vessel 
fishing commercially for tilefish would be required to obtain a Federal 
vessel tilefish permit. Based on the period of January 1, 1988, to June 
15, 1993, 312 vessels landed at least 1 lb (2.20 kg) of tilefish. 
Assuming that all these vessels would be eligible for a tilefish permit 
and that they would all apply, there would be 312 new permit 
applications as a result of this proposed rule. Total initial costs for 
vessel permits would be $106 for public burden ($0.34 per vessel x 312 
vessels). For dealer permits, there would be a total cost of $3 ($0.34 
per vessel x 10). It is estimated that 85 of the vessels that would 
apply for initial vessel permits do not presently possess a Northeast 
fisheries permit; therefore, for operator permits, there would be a 
total cost of $29 ($0.34 per operator x 85 vessels) and $850 ($10.00 
per vessel x 85 vessels) for obtaining and displaying vessel 
identification numbers. About 5 percent of the vessels (5 vessels) 
applying for the initial vessel permit may also incur additional costs 
associated with confirmation of permit history, replacement and 
upgrades, and permit vessel appeals, which are estimated to total $6 
($0.34 per vessel x 5 vessels x 3 responses). Eighty-five vessels 
currently do not report under the system in place for Northeast permit 
holders; therefore, total costs of submitting vessel logbooks would be 
$419 annually ($4.93 per vessel x 85 vessels). Total costs of 
submitting dealer reports would be $177 ($17.70 per dealer x 10 
dealers).
    There are no large businesses involved in the industry; therefore, 
there are no disproportionate effects on small entities. There are no 
disproportionate costs of compliance among the affected small entities. 
The proposed action does not create regulations that duplicate, 
overlap, or conflict with any state regulation or other Federal law.
    A copy of this analysis is available from the Council (see 
ADDRESSES).
    The Council prepared a final environmental impact statement (FEIS) 
for this FMP. The FEIS was filed with the Environmental Protection 
Agency (EPA) March 28, 2001. The EPA will publish a notice of 
availability of the FEIS in the Federal Register. A copy of the FEIS 
may be obtained from the Council (see ADDRESSES).
    This proposed rule has been determined to be not significant for 
the purposes of E.O. 12866.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    This rule contains collection-of-information requirements subject 
to review and approval by Office of Management and Budget (OMB) under 
the Paperwork Reduction Act. This rule will also subject persons to 
requirements not contained in the rule itself. For example, persons 
required to obtain vessel permits under this rule will automatically be 
subject to logbook reporting requirements. Both types of requirements 
have been submitted to OMB for approval.
    Public reporting burden for the collections of information 
contained in this rule are as follows: 1 hour for a vessel operator 
permit application, 30 minutes for a new vessel permit application, 15 
minutes for a vessel permit renewal application, 3 hours for a vessel 
permit appeal, 3 hours for a vessel confirmation of permit history 
application, 4 minutes per vessel report using the IVR system, 4 
minutes per dealer report using the IVR system, 3 hours for a vessel 
replacement or upgrade application, and 5 minutes for a dealer permit 
application. Reporting burden for the information requirements that are 
proposed in the FMP and are not contained in this rule, but will be 
imposed as a consequence of the rule, is estimated to be: 5 minutes per 
response for a vessel logbook, 2 minutes per dealer report using NOAA 
Form 88-30, 45 minutes for vessel identification, and 30 minutes for 
completing the Processed Products Report. These estimates include the 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information has 
practical utility; the accuracy of the burden estimate; ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and ways to minimize the burden of the collection of information, 
including through the use of automated collection techniques or other 
forms of information technology.
    Send comments on these or any other aspects of the collection of 
information to NMFS (see ADDRESSES) and to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Washington, DC 20503 (Attn: NOAA Desk Officer).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and Recordkeeping Requirements.

    Dated: March 28, 2001.
Clarence Pautzke
Acting Deputy Assistant Administrator for Fisheries, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. In Sec. 648.1, the first sentence of paragraph (a) is revised to 
read as follows:


Sec. 648.1   Purpose and scope.

    (a) This part implements the fishery management plans (FMPs) for 
the

[[Page 17677]]

Atlantic mackerel, squid, and butterfish fisheries (Atlantic Mackerel, 
Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon FMP); the 
Atlantic sea scallop fishery (Scallop FMP); the Atlantic surf clam and 
ocean quahog fisheries (Atlantic Surf Clam and Ocean Quahog FMP); the 
Northeast multispecies fishery (Multispecies FMP); the monkfish fishery 
(Monkfish FMP); the summer flounder, scup, and black sea bass fisheries 
(Summer Flounder, Scup, and Black Sea Bass FMP); the Atlantic bluefish 
fishery (Atlantic Bluefish FMP); the spiny dogfish fishery (Spiny 
Dogfish FMP); the Atlantic herring fishery (Atlantic Herring FMP); and 
the tilefish fishery (Tilefish FMP). * * *
* * * * *

    3. In Sec. 648.2, the definition for ``Council'' is revised and a 
new definition for ``Tilefish FMP Monitoring Committee'' is added in 
alphabetical order to read as follows:


Sec. 648.2  Definitions.

* * * * *
    Council means the New England Fishery Management Council (NEFMC) 
for the Atlantic herring, Atlantic sea scallop, monkfish, and NE 
multispecies fisheries; or the Mid-Atlantic Fishery Management Council 
(MAFMC) for the Atlantic mackerel, squid, and butterfish; Atlantic surf 
clam and ocean quahog; summer flounder, scup, and black sea bass; spiny 
dogfish; Atlantic bluefish; and tilefish fisheries.
* * * * *
    Tilefish FMP Monitoring Committee means a committee made up of 
staff representatives of the MAFMC, the NMFS Northeast Regional Office, 
the Northeast Fisheries Science Center, up to three state 
representatives (the New England states having one representative and 
the Mid-Atlantic states having a maximum of two representatives) and 
one non-voting industry member. The MAFMC Executive Director or his 
designee chairs the committee.
* * * * *

    4. In Sec. 648.4, paragraph (a)(12) is added and paragraph (b) are 
revised to read as follows:


Sec. 648.4  Vessel permits.

    (a) * * *
    (12) Tilefish vessels. Any vessel of the United States must have 
been issued and carry on board a valid tilefish vessel permit to fish 
for, possesses, or land tilefish in or from the EEZ.
    (i) Limited access tilefish permits--(A) Eligibility. A vessel may 
be issued a limited access tilefish permit if it meets any of the 
following limited access tilefish permit criteria:
    (1) Full-time tier 1 category. The vessel landed at least 250,000 
lb (113,430 kg) of tilefish per year for any 3 years between 1993 and 
1998, at least 1 lb (2.20 kg) of which was landed prior to June 15, 
1993.
    (2) Full-time tier 2 category. The vessel landed at least 30,000 lb 
(13,612 kg) per year for any of 3 years between 1993 and 1998, at least 
1 lb (2.20 kg) of which was landed prior to June 15, 1993.
    (3) Part-time category. The vessel landed 10,000 lb (4,537 kg) of 
tilefish in any 1 year between 1988 and 1993 and 10,000 lb (4,537 kg) 
in any 1 year between 1994 and 1998, or landed 28,000 lb (12,904 kg) of 
tilefish in any 1 year between 1984 and 1993.
    (ii)Limited access permit restrictions--(A)Categories--(1) A vessel 
may be issued a limited access tilefish permit for only one category 
during a fishing year.
    (2) A vessel issued a limited access permit may not be issued an 
incidental catch permit during a fishing year.
    (B) Application/renewal restriction--(1)Initial application. A 
vessel owner must apply for an initial limited access tilefish permit 
before [date 365 days from date of publication of the final rule].
    (2) For fishing years beyond the initial application year, the 
provisions of paragraph (a)(1)(i)(B) of this section apply.
    (C) Qualification restrictions. The provisions of paragraph 
(a)(1)(i)(C) of this section apply.
    (D) Change in ownership. The provisions of paragraph (a)(1)(i)(D) 
of this section apply.
    (E) Replacement vessels. The provisions of paragraph (a)(1)(i)(E) 
of this section apply.
    (F) Upgraded vessel. The provisions of paragraph (a)(1)(i)(F) of 
this section apply.
    (G) Consolidation restriction. The provisions of paragraph 
(a)(1)(i)(G) of this section apply.
     (H) Vessel baseline specifications. The provisions of paragraph 
(a)(1)(i)(H) of this section apply.
    (I) [Reserved]
     (J) Confirmation of permit history. The provisions of paragraph 
(a)(1)(i)(J) of this section apply.
    (K) Abandonment or voluntary relinquishment of permits. The 
provisions of paragraph (a)(1)(i)(K) of this section apply.
    (L) Restriction on permit splitting. The provisions of paragraph 
(a)(1)(i)(L) of this section apply.
    (M) Appeal of denial of a permit. (1) Any applicant denied a 
tilefish limited access permit may appeal to the Regional Administrator 
within 30 days of the notice of denial. Any such appeal shall be in 
writing. The only ground for appeal is that the Regional Administrator 
erred in concluding that the vessel did not meet the criteria in 
paragraphs (a)(12)(i)(A)(1),(2), or (3) of this section. The appeal 
must set forth the basis for the applicant's belief that the decision 
of the Regional Administrator was made in error.
    (2) The appeal may be presented, at the option of the applicant, at 
a hearing before an officer appointed by the Regional Administrator. 
The hearing officer shall make a recommendation to the Regional 
Administrator. The decision on the appeal by the Regional Administrator 
is the final decision of the Department of Commerce.
    (3) Status of vessels pending appeal. (i) A vessel denied a limited 
access tilefish permit may fish, provided that the denial has been 
appealed, the appeal is pending, and the vessel has on board a letter 
from the Regional Administrator authorizing the vessel to fish. The 
Regional Administrator will issue such a letter for the pendency of any 
appeal. The decision on the appeal is the final administrative action 
of the Department of Commerce. The letter of authorization must be 
carried on board the vessel. If the appeal is finally denied, the 
Regional Administrator shall send a notice of final denial to the 
vessel owner; the authorizing letter shall become invalid 5 days after 
receipt of the notice of denial.
    (ii) Tilefish incidental catch permit. Any vessel of the United 
States that fishes for, possesses, or lands tilefish in or from the EEZ 
that has not been issued a limited access tilefish permit must have 
been issued and carry onboard a valid tilefish incidental catch permit 
for which there are no eligibility criteria. Such vessel is subject to 
the restrictions in Sec. 648.252.
    (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,

[[Page 17678]]

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, or black sea bass moratorium or a 
spiny dogfish, 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 respective species. A state not receiving an 
allocation of summer flounder, scup, black sea bass, or bluefish, 
either directly or through a coastwide allocation, is deemed to have no 
commercial quota available. Owners and operators of vessels fishing 
under the terms of the tilefish limited access permit must agree not to 
land tilefish after NMFS has published a notification in the Federal 
Register stating that the quota for the tilefish limited access 
category under which a vessel is fishing, has been harvested. 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 who 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 receipt of the vessel owner's written request after a 
minimum period of 6 months from the date of cancellation.
* * * * *

    5. In Sec. 648.5, the first sentence in paragraph (a) is revised to 
read as follows:


Sec. 648.5  Operator permits.

    (a) General. Any operator of a vessel fishing for or possessing 
Atlantic sea scallops in excess of 40 lb (18.1 kg), NE multispecies, 
spiny dogfish, monkfish, Atlantic herring, Atlantic surf clam, ocean 
quahog, Atlantic mackerel, squid, butterfish, scup, black sea bass, 
bluefish, or tilefish harvested in or from the EEZ, or issued a permit, 
including carrier and processing permits, for these species under this 
part, must have been issued under this section, and carry on board, a 
valid operator permit. * * *
* * * * *

    6. In Sec. 648.6, paragraph (a) is revised to read as follows:


Sec. 648.6   Dealer/processor permits.

    (a) General. (1) All dealers of NE multispecies, monkfish, Atlantic 
herring, Atlantic sea scallop, spiny dogfish, summer flounder, Atlantic 
surf clam, ocean quahog, Atlantic mackerel, squid, butterfish, scup, 
bluefish, tilefish, and black sea bass; Atlantic surf clam and ocean 
quahog processors; and Atlantic herring processors or dealers, as 
described in Sec. 648.2; must have been issued under this section, and 
have in their possession, a valid permit or permits for these species. 
A person who meets the requirements of both the dealer and processor 
definitions of any of the aforementioned species' fishery regulations 
may need to obtain both a dealer and a processor permit, consistent 
with the requirements of that particular species' fishery regulations. 
Persons aboard vessels receiving small-mesh multispecies and/or 
Atlantic herring at sea for their own use exclusively as bait are 
deemed not to be dealers, and are not required to possess a valid 
dealer permit under this section, for purposes of receiving such small-
mesh multispecies and/or Atlantic herring, provided the vessel complies 
with the provisions of Sec. 648.13.
    (2) [Reserved]
* * * * *

    7. In 648.7, paragraph (a)(2)(i) is revised and paragraph 
(b)(1)(iv) is added to read as follows:


Sec. 648.7  Recordkeeping and reporting requirements.

    (a) * * *
    (2) Weekly IVR system reports. (i) Federally permitted dealers, 
other than Atlantic herring and tilefish dealers, purchasing quota-
managed species not deferred from coverage by the Regional 
Administrator pursuant to paragraph (a)(2)(ii) of this section must 
submit, within the time period specified in paragraph (f) of this 
section, the following information, and any other information required 
by the Regional Administrator, to the Regional Administrator or to an 
official designee, via the IVR system established by the Regional 
Administrator: Dealer permit number; dealer code; pounds purchased, by 
species, other than Atlantic herring; reporting week in which species 
were purchased; and state of landing for each species purchased. If no 
purchases of quota-managed species not deferred from coverage by the 
Regional Administrator pursuant to paragraph (a)(2)(ii) of this section 
were made during the week, a report so stating must be submitted 
through the IVR system in accordance with paragraph (f) of this 
section.
    (b) * * *
    (1) * * *
    (iv) The owner or operator of a vessel described here must report 
landings of tilefish each week to an IVR system. The report shall 
include at least the following information, and any other information 
required by the Regional Administrator: Vessel identification, 
reporting week in which species are caught, and pounds landed. Weekly 
tilefish landings must be submitted via the IVR system by midnight, 
Eastern time, each Tuesday for the previous week. This report does not 
exempt the owner or operator from other applicable reporting 
requirements of Sec. 648.7.
    (A) An owner or operator of any vessel issued a limited access 
permit for tilefish must submit a tilefish landings report via the IVR 
system for that week as required by the Regional Administrator.
    (B) [Reserved]
* * * * *

    8. 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, NE multispecies, monkfish, Atlantic 
mackerel, squid, butterfish, scup, black sea bass, bluefish, spiny 
dogfish, Atlantic herring, tilefish; or a moratorium permit for summer

[[Page 17679]]

flounder; to carry a NMFS-approved sea sampler/observer.* * *
* * * * *
    (e) The owner or operator of a vessel issued a summer flounder 
moratorium permit, a scup moratorium permit, a black sea bass 
moratorium permit, a bluefish permit, a spiny dogfish permit, an 
Atlantic herring permit, or a tilefish 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, black sea bass, bluefish, spiny 
dogfish, Atlantic herring, tilefish, or other specimens taken by the 
vessel.
    (2) Provide the sea sampler/observer with sea turtles, marine 
mammals, summer flounder, scup, black sea bass, bluefish, spiny 
dogfish, Atlantic herring, tilefish, or other specimens taken by the 
vessel.
* * * * *

    9. 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 A (General Provisions), 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 (Atlantic herring), L 
(spiny dogfish), and M (tilefish) 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 MAFMC regarding such 
exemptions for the Atlantic mackerel, squid, butterfish, summer 
flounder, scup, black sea bass, spiny dogfish, bluefish, and tilefish 
fisheries.
* * * * *

    10. In Sec. 648.14, paragraphs (x)(11) and (cc) are added to read 
as follows:


Sec. 648.14  Prohibitions.

* * * * *
    (x) * * *
    (11)Tilefish. All tilefish retained or possessed on a vessel issued 
any permit under Sec. 648.4 are deemed to have been harvested from the 
EEZ, unless the preponderance of all submitted evidence demonstrates 
that such tilefish were harvested by a vessel fishing exclusively in 
state waters.
* * * * *
    (cc) In addition to the general prohibitions specified in 
Sec. 600.725 of this chapter, it is unlawful for any person to do any 
of the following:
    (1) Fish for, possess, retain or land tilefish, unless:
    (i) The tilefish are being fished for or were harvested in or from 
the EEZ by a vessel holding a valid tilefish permit under this part, 
and the operator on board such vessel has been issued an operator 
permit that is on board the vessel; or
    (ii) The tilefish were harvested by a vessel not issued a tilefish 
permit that was fishing exclusively in state waters; or
    (iii) The tilefish were harvested in or from the EEZ by a vessel 
engaged in recreational fishing.
    (2) Operate, or act as an operator of, a vessel with a tilefish 
permit, or a vessel fishing for or possessing tilefish in or from the 
EEZ, unless the operator has been issued, and is in possession of, a 
valid operator permit.
    (3) Purchase, possess, receive, or attempt to purchase, possess, or 
receive, as a dealer, or in the capacity of a dealer, tilefish that 
were harvested in or from the EEZ, without having been issued, and in 
possession of, a valid tilefish dealer permit.
    (4) Purchase, possess, receive, or attempt to purchase, possess, or 
receive, as a processor, or in the capacity of a processor, tilefish 
from a fishing vessel with a tilefish permit or from a dealer with a 
tilefish dealer permit, without having been issued, and in possession 
of, a valid tilefish processor permit.
    (5) Sell, barter, trade, or otherwise transfer, or attempt to sell, 
barter, trade, or otherwise transfer, for a commercial purpose, any 
tilefish, unless the vessel has been issued a tilefish permit, or 
unless the tilefish were harvested by a vessel without a tilefish 
permit that fished exclusively in state waters.
    (6) Purchase, possess, or receive, for a commercial purpose, or 
attempt to purchase, possess or receive, for a commercial purpose, 
tilefish caught by a vessel without a tilefish permit, unless the 
tilefish were harvested by a vessel without a tilefish permit that 
fished exclusively in state waters.
    (7) Fish for tilefish, with any gear other than longline, while in 
possession of a limited access permit.
    (8) Possess tilefish harvested in or from the EEZ in excess of the 
trip limit, pursuant to Sec. 648.252, unless issued a limited access 
permit.
    (9) Land tilefish harvested in or from the EEZ for sale after the 
effective date of the notification in the Federal Register, pursuant to 
Sec. 648.251, which notifies permit holders in a limited access 
category that the quota for that category is no longer available.
* * * * *
    11. In 50 CFR part 648, Subpart M is added to read as follows:

Subpart M--Management Measures for the Tilefish Fishery

Sec.
Sec. 648.250   Catch quotas and other restrictions.
Sec. 648.251   Closures.
Sec. 648.252    Tilefish trip limits.
Sec. 648.253    Framework specifications.
Sec. 648.254   Gear restrictions.

Subpart M--Management Measures for the Tilefish Fishery


Sec. 648.250  Catch quotas and other restrictions.

    The fishing year is the 12-month period beginning with [day and 
month of the effective date of the final rule implementing the FMP].
    (a) Total allowable landings (TAL). The TAL for each fishing year 
will be 1.995 million lb (905,172 kg) unless modified pursuant to 
paragraph (d) of this section.
    (b) Allocation by category. For each fishing year, the TAL will 
first be reduced by 5 percent to adjust for the incidental catch. The 
remaining 95 percent of the TAL will be allocated as follows: Full-time 
tier category 1, 66 percent; Full-time tier category 2, 15 percent; and 
Part-time, 19 percent.
    (c) Adjustments to the quota. Any overages that occur in the quota 
for any limited access category in a given fishing year will be 
subtracted from the quota for that category in the following fishing 
year. If incidental harvest exceeds 5 percent of the TAL for a given 
fishing year, the trip limit of 300 lb (138 kg) for the incidental 
category may be reduced in the following year. If an adjustment is 
required, a notification of adjustment of the quota will be published 
in the Federal Register.
    (d) Annual specification process. The Tilefish FMP Monitoring 
Committee (Monitoring Committee) will meet after the completion of each 
stock assessment or at the request of the Council Chairman. The 
Monitoring Committee shall review tilefish landings information and any 
other relevant available data to determine if the annual quota requires 
modification to respond to any changes to the stock's biological 
reference points or to ensure that the rebuilding schedule is 
maintained. The Monitoring Committee will consider whether any 
additional management measures or revisions to existing measures are 
necessary to ensure that the TAL will not be exceeded. Based on that 
review, the Monitoring Committee will provide a recommendation to the 
Tilefish Committee of the Council.

[[Page 17680]]

 Based on these recommendations and any public comment received, the 
Tilefish Committee shall recommend to the Council the appropriate quota 
and management measures for the next fishing year. The Council shall 
review these recommendations and any public comments received, and 
recommend to the Regional Administrator, at least 120 days prior to the 
beginning of the fishing year, the appropriate TAL for the next fishing 
year and any management measures to assure that the TAL will not be 
exceeded. The Council's recommendations must include supporting 
documentation, as appropriate, concerning the environmental and 
economic impacts of the recommendations. The Regional Administrator 
shall review these recommendations, and after such review, NMFS will 
publish a proposed rule in the Federal Register specifying the annual 
TAL. After considering public comments, NMFS will publish a final rule 
in the Federal Register to implement a TAL and any other measures. The 
previous year's specifications will remain effective unless revised 
through the specification process. NMFS will issue notification in the 
Federal Register if the previous year's specifications will not be 
changed.


Sec. 648.251   Closures.

    (a) EEZ closure. If the Regional Administrator determines that the 
quota for a certain limited access category will be exceeded, the 
Regional Administrator will close the EEZ to fishing for tilefish by 
those vessels in that category for the remainder of the fishing year 
and publish notification in the Federal Register.
    (b) [Reserved]


Sec. 648.252  Tilefish trip limits.

    Any U.S. fishing vessel fishing under a tilefish incidental catch 
category permit is prohibited from possessing more than 300 lb (138 kg) 
of tilefish per trip.


Sec. 648.253   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 Tilefish FMP. The following specific management 
measures may be implemented or adjusted at any time through the 
framework process:
    (1) Minimum fish size,
    (2) Minimum hook size,
    (3) Closed seasons,
    (4) Closed areas,
    (5) Gear restrictions or prohibitions,
    (6) Germitting restrictions,
    (7) Gear limits,
    (8) Trip limits,
    (9) Overfishing definition and related thresholds and targets,
    (10) Annual specification quota setting process,
    (11) Tilefish FMP Monitoring Committee composition and process,
    (12) Description and identification of EFH,
    (13) Fishing gear management measures that impact EFH,
    (14) Habitat areas of particular concern, and
    (15) Set-aside quotas for scientific research.
    (1) Adjustment process. If the Council determines that an 
adjustment to management measures is necessary to meet the goals and 
objectives of the FMP, it will recommend, develop, and analyze 
appropriate management actions over the span of at least two Council 
meetings. The Council will provide the public with advance notice of 
the availability of the recommendation, appropriate justifications and 
economic and biological analyses, and opportunity to comment on the 
proposed adjustments prior to and at the second Council meeting on that 
framework action. After developing management actions and receiving 
public comment, the Council will submit the recommendation to the 
Regional Administrator; the recommendation must include supporting 
rationale, an analysis of impacts, and a recommendation on whether to 
publish the management measures as a final rule.
    (2) Council recommendation. After developing management actions and 
receiving public testimony, the Council will 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, 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 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.
    (iv) Whether there will be a continuing evaluation of management 
measures adopted following their implementation as a final rule.
    (3) Regional Administrator 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 the Regional Administrator 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 (b)(2) of this section, the measures 
will be issued as a final rule in the Federal Register.
    (ii) If the Regional Administrator concurs with the 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 the Regional Administrator concurs with the 
Council's recommendation, the measures will be issued as a final rule 
in the Federal Register.
    (iii) If the Regional Administrator does not concur with the 
Council's recommendation, 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.


Sec. 648.254  Gear restrictions.

    A vessel issued a limited access tilefish permit issued under 
Sec. 648.4(a)(12)(i) cannot fish for tilefish with any gear other than 
longline.
[FR Doc. 01-8163 Filed 4-2-01; 8:45 am]
BILLING CODE 3510-22-S