[Federal Register Volume 66, Number 187 (Wednesday, September 26, 2001)]
[Rules and Regulations]
[Pages 49136-49146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24117]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 010319075-1217-02; I.D. 011101A]
RIN 0648-AF87


Fisheries of the Northeastern United States; Fishery Management 
Plan for Tilefish

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

ACTION: Final rule.

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SUMMARY: NMFS announces the approval of the Fishery Management Plan for 
Tilefish (FMP) and issues a final rule to implement that FMP. The final 
rule is designed to eliminate overfishing, as defined in that FMP, and 
to rebuild the tilefish stock in the northwest Atlantic Ocean by 
implementing: A stock rebuilding strategy; a limited entry program; a 
tiered commercial quota; permit and reporting requirements for 
commercial vessels, operators, and dealers; a prohibition on the use of 
gear other than longline gear by limited-access tilefish vessels; and 
an annual specification and framework adjustment process.

DATES: This final rule is effective November 1, 2001.

ADDRESSES: 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.
    Comments regarding the collection-of-information requirements 
contained in this final rule should be sent to Patricia A. 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 (Attn: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Bonnie Van Pelt, Fishery Management 
Specialist, voice 978-281-9244; fax 978-281-9135; e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    A Notice of Availability (NOA) of the FMP was published in the 
Federal Register on February 12, 2001 (66 FR 9814), with a comment 
period ending April 13, 2001. A proposed rule to implement the FMP was 
published in the Federal Register on April 3, 2001 (66 FR 17673), with 
a comment period ending May 18, 2001. The FMP was approved by NMFS on 
behalf of the Secretary of Commerce (Secretary) on May 10, 2001.
    This final rule is designed to eliminate overfishing as defined in 
the FMP and to rebuild the tilefish stock in the Northwest Atlantic 
Ocean by implementing: (1) A stock rebuilding strategy; (2) a limited 
entry program; (3) tiered commercial quota allocations or total 
allowable landings (TAL) for limited access and open access permit 
categories; (4) a prohibition on the use of gear other than longline 
gear for limited access tilefish vessels; (5) permit and reporting 
requirements for commercial vessels, operators, and dealers; and (6) an 
annual specification and framework adjustment process. These items form 
the basis for management of the stock. Discussions and details 
pertaining to these items and the justification for the development of 
the FMP are found in the preamble to the proposed rule and the NOA and 
are not repeated here.
    The annual quota setting process implemented by this final rule 
differs from that set forth in the FMP in order to incorporate the 
provisions of the Council's omnibus framework, Framework 1 (covering 
most of the Council's FMPs), which allow the Council to set aside up to 
3 percent of a species' TAL to be used to compensate for research. 
Framework 1 established the ability to modify quotas through the annual 
specification process. The background of the framework and the quota 
modification process are discussed in the preamble to the final rule 
implementing Framework 1, published August 10, 2001 (66 FR 42156), for 
other Mid-Atlantic fisheries.
    This final rule differs from the proposed rule by providing for an 
up to 3-percent research set-aside for tilefish and by revising the 
vessel reporting requirements for the tilefish Interactive Voice 
Response System (IVR) by requiring that vessel owners/operators report 
on a trip-by-trip basis, rather than on a weekly basis. Since the 
average tilefish trip is 10 days, this change from weekly to per trip 
reporting better reflects fishing practices. Paperwork Reduction Act 
(PRA) burden estimates for individual vessel reporting through the IVR 
over the entire fishing year decrease due to this change.

Comments and Responses

    NMFS received 306 written comments on the FMP and the proposed 
rule. Five commenters favored the approval of the FMP and the 
implementing measures. The remaining commenters were opposed to one or 
more portions of the FMP and/or its implementing

[[Page 49137]]

regulations. Comments focused on the gear impacts portion of the 
Essential Fish Habitat (EFH) description, the stock rebuilding 
strategy, the limited access program and related ancillary economic 
impacts, implementation of the conservation recommendations described 
in the FEIS, and endangered species interactions.
    Comment 1. Numerous commenters stated that the gear impacts portion 
of the EFH designation should be disapproved since it does not list 
bottom-tending mobile gear (trawls and dredges) as gear capable of 
destroying tilefish burrows. One commenter indicated that a 
conservative approach would have listed bottom-tending gear as having 
an adverse impact on EFH and supported a prohibition of bottom-tending 
gear in the Habitat Area of Particular Concern (HAPC).
    Response. While bottom-tending mobile gear could potentially impact 
tilefish habitat by causing, for example, the filling or closing off of 
tilefish burrow openings, there is no scientific evidence showing that 
bottom-tending mobile gear adversely affects tilefish habitat. Tilefish 
burrows are subterranean and, as such, may not be susceptible to 
impacts from mobile gear as epibenthic (i.e., above the bottom) 
structures. Based on the adverse economic effects that a prohibition on 
the use of bottom-tending mobile gear in tilefish HAPC would have upon 
several other fisheries and on the lack of scientific evidence showing 
identifiable adverse effects caused by such gear on tilefish EFH and 
HAPC, the Council did not propose gear prohibitions in the HAPC on 
other than limited access tilefish vessels. The Council's discussion 
and rationale supporting its actions satisfy the requirements of 50 CFR 
600.815(a)(3) to minimize, to the extent practicable, the adverse 
effects of fishing on EFH.
    Tilefish are harvested primarily (approximately 97 percent) by 
longline gear; impacts on habitat from this type of gear are not 
detectable and, if they occur, are probably minimal and temporary. This 
final rule prohibits limited access tilefish vessels from using gear 
other than longline gear.
    Comment 2. One commenter stated that the issues surrounding the 
effects of bottom trawling (long and short-term) on tilefish EFH should 
be resolved, and that the Council and NMFS have an obligation to 
prevent, mitigate, or minimize adverse effects of fishing on tilefish 
EFH to the extent practicable, if there is evidence that a fishing 
practice is having an identifiable adverse effect on EFH.
    Response. Initially, the Council determined that bottom trawls 
adversely impacted EFH by destroying tilefish burrows. The 
determination was made by inference, using scientific reports on 
habitat damage caused by trawling. The adverse impact determination was 
included in the Council's draft Draft Environmental Impact Statement 
(DEIS) on which the Council held public hearings. A large number of 
commenters (vessel owners, fish buyers and processors) disagreed with 
this determination because of the lack of specific scientific evidence 
to support it. The Council, in response, convened a workshop comprised 
of tilefish experts to determine whether there was adequate information 
to make a determination of adverse impacts. Participants in the 
workshop concluded that nothing is definitively known about tilefish 
habitat and mobile fishing gear interactions. Based on this, the 
Council changed its determination in the FEIS/FMP for bottom trawls to 
``bottom trawl gear is not adequately identified as having an adverse 
effect on tilefish EFH.'' NMFS agrees with this determination. NMFS 
supports mitigative measures to prevent adverse impacts to tilefish EFH 
to the extent that they are practicable. NMFS and the Council support a 
cooperative research program to further investigate this issue. In the 
meantime, in the absence of any specific evidence showing there is an 
adverse impact on tilefish EFH from trawling, the Council chose not to 
propose any management measures to address the effects of trawl fishing 
on tilefish EFH. This final rule implements a framework mechanism to 
allow for the development and implementation of management measures to 
minimize impacts from gear on tilefish EFH should they be shown to 
exist.
    Comment 3. One commenter stated that the Council's proposed 
rebuilding strategy, which has a 50-percent probability of rebuilding 
the stock within 10 years, should be replaced with a rebuilding program 
where stocks would have 75-percent probability of being rebuilt in 8 
years.
    Response. Section 304(e)(4)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) requires, for a 
fishery that is overfished, that an FMP specify a time period for 
ending overfishing and rebuilding the fishery that is as short as 
possible, taking into account the status and biology of any overfished 
stocks of fish, the needs of fishing communities, recommendations by 
international organizations in which the United States participates, 
and the interaction of the overfished stock of fish with the marine 
ecosystem, and does not exceed 10 years except in cases where the 
biology of the stock of fish, or other environmental conditions, or 
management measures under an international agreement in which the 
United States participates, dictate otherwise. Based on the factors 
required by the Magnuson-Stevens Act to be considered and upon the 
record before the Council, NMFS agrees with the Council that, for the 
tilefish fishery, a stock rebuilding plan with a 50-percent probability 
of rebuilding the stock within 10 years is appropriate.
    Comment 4. One commenter alleged that a constant-harvest strategy 
allows overfishing to occur in the near term, which is inconsistent 
with the requirements of the Sustainable Fisheries Act (SFA) amendments 
to the Magnuson-Stevens Act.
    Response. Although a constant-harvest strategy would allow 
overfishing to continue in the start-up years of the FMP, this is 
permissible under the SFA. Section 304(e) of the Magnuson-Stevens Act 
contemplates Regional Fishery Management Councils to take action to end 
overfishing. Such action initiates rebuilding of an overfished stock. 
Section 304(e)(4)(A)(i) of the Magnuson-Stevens Act requires that a 
Council consider, among other factors, the needs of fishing 
communities, in specifying a time period for ending overfishing and 
rebuilding the fishery. Ending overfishing in a fishery that is 
severely overfished cannot be accomplished in the first few years 
without severe economic and social impacts on the participants and 
fishing communities. Such drastic action is not required in this 
instance. Furthermore, the Council projected potential economic 
benefits of a constant-harvest strategy, such as ease in quota 
management and a constant long-term economic planning horizon for 
industry participants.
    Comment 5. One commenter stated that there should be a 
precautionary backstop in the event that stock recovery does not 
progress according to the rebuilding schedule, such that NMFS could 
adopt a reference point at 1/4 Bmsy that, if reached, would trigger the 
closure of the fishery.
    Response. The regulations provide a backstop mechanism. The FMP 
Monitoring Committee, which is required to meet after the completion of 
each stock assessment, or at the request of the Council Chairman, 
reviews landings information and any other relevant available data to 
determine whether the annual quota requires modification to respond to 
any changes to the stock's biological reference points

[[Page 49138]]

or to insure that the rebuilding schedule is maintained.
    Comment 6. Numerous commenters alleged that limited entry Option 2 
should not be approved since it is not fair and equitable to all 
participants in the fishery.
    Response. Limited entry Option 2 was not the option adopted by the 
Council and approved in the FMP. The Council adopted limited entry 
Option 6, which was approved by NMFS. Option 6 was recommended to the 
Council by present and historical industry participants in the tilefish 
fishery. It incorporates Option 2 for full-time vessels and allows for 
an expansion of the qualifying time frame for part-time vessels. Option 
6 also contemplates an amendment to the limited entry program in the 
FMP at the end of the 10-year rebuilding period, or when the fishery is 
rebuilt, whichever comes first, to formalize the qualifying period for 
entry into the tilefish fishery from 1984 though 1998.
    Comment 7. Several commenters stated that the tilefish limited 
access program does not meet the objectives of the FMP.
    Response. The objectives of the FMP are to be accomplished through 
the suite of measures contained therein. It is not necessary that each 
management measure in an FMP accomplishes every one of the FMP's 
objectives. In the case of the tilefish limited access program, it will 
not only reduce overcapitalization, consistent with Objective 2 of the 
FMP, but it also will prevent overfishing and contribute to the 
rebuilding of the stock by limiting fishing effort and maintaining the 
integrity of the annual quota, which meets Objective 1. Further, the 
data collected through the reporting requirements applied to vessels in 
the limited access program fulfills the requirements of Objective 4. 
The identification and description of EFH in Objective 3 are 
accomplished through other components of the FMP.
    Comment 8. Several commenters alleged that the FMP is devoid of 
discussion on how allocation alternatives further the goals of the FMP.
    Response. NMFS disagrees. The overall goal of the FMP is to rebuild 
tilefish so that Optimum Yield can be obtained. To help achieve this, 
this rule implements a limited access system with specified amounts of 
TAL allocated to the various permit categories. Once the allocation or 
quota for a given limited access permit category is harvested, the 
Administrator, Northeast Region, NMFS (Regional Administrator) will 
close the EEZ to fishing for tilefish for that permit category for the 
remainder of the year. The limitation of fishing effort represented by 
the limited access categories and these closures will ensure the 
integrity of the annual quota and facilitate rebuilding of the stock. 
Specific discussions of the environmental and economic impacts of these 
alternatives can be found in sections 3.1 and 4.7 of the FMP.
    Comment 9. One commenter alleged that Option 6 was brokered between 
two factions of the industry without regard to Constitutional due 
process and was not considered by the Tilefish Committee. The commenter 
asserted that two industry groups, competitors of a current participant 
in the fishery, came to a compromise that was then adopted by the 
Council as Option 6, without analysis. The commenter believed the 
Council's Option 3 was reasonable and would have qualified the present 
participant concerned into the limited access program.
    Response. Option 6 incorporates the same requirements as Option 2 
for full-time vessels. In addition, Option 6 expands the time frame for 
qualifying for the part-time category by allowing for consideration of 
landings of at least 28,000 lb (12,701 kg) of tilefish in any 1 year 
from 1984 to 1993, at least one pound of which was landed prior to June 
15, 1993, as a qualifying criterion. This alternative was supported by 
the differing factions in the tilefish fishery. The industry made a 
presentation to the Council regarding this alternative. After due 
deliberation, the Council adopted this alternative as Option 6. This 
alternative was thoroughly analyzed by the Tilefish Technical Committee 
prior to the Council adoption of the final version of the FMP. The 
inclusion in Option 6 of historical participants who fished as far back 
as 1984 was reasonable in the view of the Council, given the factors it 
has to consider under section 303(b)(6) of the Magnuson-Stevens Act. 
Option 6 was adopted during a full and open Council process; all 
interested parties had the opportunity to provide input and comments 
prior to its adoption. NMFS published a NOA and a proposed rule for 
further public comment. This is all part of the process of preparation, 
approval, and implementation of the FMP. NMFS agrees that limited 
access Option 3, the preferred option in the DEIS, is reasonable. 
However, no commenters, including the participant that the commenter is 
referring to, favored Option 3. The Council believed that a rejection 
of its preferred option of that magnitude by the industry required it 
to choose an alternative limited access option that would achieve the 
same conservation goals.
    Comment 10. One commenter alleged that the justification for 
adopting Option 6 was that the Council did not have to conduct any 
analysis; the Council could simply adopt the agreement reached by the 
select group who participated in a closed meeting. The commenter also 
stated that a present participant's landings were not considered in the 
decision to adopt Option 6 and that the vessel in question will likely 
be unable to qualify for a full-time tier 1 category permit.
    Response. The Council's Tilefish Technical Committee conducted an 
analysis of Option 6, as summarized in Table 79 in the FMP. Further, 
the Council's decision to adopt Option 6 was detailed in an open public 
forum, in which the industry participated. All data considered in 
analyzing the various options were contained in NMFS' official 
database. In addition, the Council considered additional data from 
vessels, which it solicited from the states (only landings from the 
State of New York were submitted), for the period 1988 through 1998.
    Since the limited access tilefish fishery has not yet been 
implemented, there is no basis to determine specifically which vessels 
would qualify for the different limited access permit categories. Once 
these final regulations become effective, vessel owners will have an 
opportunity to apply for a particular limited access permit category 
and produce supporting landings information. The Council used a blind 
analysis, in which vessels were identified only by a random number, to 
ascertain the number of vessels that would qualify for the different 
permit categories under the different options. The Council had no 
information to conclude whether a specific named vessel would qualify 
for a particular limited access permit category.
    Comment 11. One commenter stated that Option 6 was created for the 
sole purpose of restructuring the top tier of eligible fishers and that 
there was no biological or ecological basis to exclude a current 
participant from the fishery. The commenter believed Option 6 was 
chosen based on economic allocation as its sole purpose, which would be 
a violation of national standard 5.
    Response. Option 6 did not change the tier 1 qualification 
criteria. It incorporated the criteria from Option 2, without 
modification, thereby leaving the qualifying criteria for full-time 
tier 1 category as follows: 250,000 lb (113,398 kg) per year for 3 
years between 1993 and 1998. All the management measures are designed 
to work in concert to meet the overall FMP goals and objectives. It is 
up to the

[[Page 49139]]

Council to exercise discretion in arriving at options to address stock 
rebuilding and to minimize adverse economic impacts. The Council did 
not consider economic impacts on individually named vessels in its 
deliberations; all of the analyses it conducted were done on a blind 
basis. The tilefish fishery is a very small fishery. The tilefish 
resource is sensitive to additional fishing effort that could slow or 
even prevent its rebuilding, depending on the level of effort involved. 
The annual quota under the constant harvest strategy is 1.995 million 
lb (904.9 mt). The four vessels that qualify for the tier 1 permit 
category have the capacity to harvest in excess of this amount. These 
vessels harvested 2.635 million lb (1195 mt) in 1997. Limiting the 
number of vessels participating in this fishery will help to decrease 
fishing mortality and to maintain the integrity of the annual quota. 
Since there is a biological basis limit entry into the tilefish 
fishery, the commenter's allegation that such limitation violates 
national standard 5 is without merit.
    Comment 12. One commenter stated that Options 5 and 6 violate 
national standard 4.
    Response. Option 5 was not adopted by the Council or approved by 
NMFS. Thus, whether it satisfies national standard 4 is irrelevant. The 
FMP is designed to prevent further overcapitalization by establishing a 
limited entry scheme. The allegations relating to national standard 4 
are that the industry groups set the qualifying criteria for the full-
time tier 1 to exclude a current participant from the fishery. However, 
the industry compromise did not propose to modify the qualifying 
criteria for tier 1. Indeed, those criteria were adopted by the Council 
prior to its consideration of Option 6 after much discussion, much of 
which involved industry input. The category qualifying criteria are 
simply performance criteria relating to levels of landings during a 
certain time period to differentiate between vessels that are heavily 
involved in the fishery (those that landed at least 250,000 lb (113,398 
kg) per year for 3 years between 1993-1998) and those that are not 
(those vessels that landed 90,000 lb (408,233 kg) or less during the 
same or earlier expanded time frame). These criteria apply evenly 
across the fishery to all participants and represent a reasonable means 
to distinguish varying levels of participation in the tilefish fishery.
    Comment 13. One commenter alleged that the FMP fails to consider 
the best data available in establishing the limited access system for 
tilefish and, therefore, violates national standard 2.
    Response. NMFS disagrees. Limited access programs are designed to 
consider past and present participation and relative degrees of 
dependence on a fishery. All data used in developing the limited access 
permit and TAL allocations were based on the best and most recent 
information contained in the NMFS data base. These data constitute the 
best scientific information available.
    Comment 14. One commenter stated that the tier 1 full-time 
qualified vessels catch small fish of which a significant majority are 
juveniles and sexually immature. Because of this, the commenter alleges 
it will be impossible for the tilefish stock to rebuild without a 
minimum fish size provision.
    Response. It is possible that present participants are currently 
landing large numbers of small fish. However, there is evidence that, 
as the stock biomass decreases, a disproportionate number of smaller 
fish occur in the population. As the stock rebuilds and the age 
structure of the stock expands, the tendency to harvest small fish will 
decrease. A minimum fish size and gear restrictions are listed in the 
FMP as measures the Council could implement in the future through 
framework adjustment provisions, should data become available 
demonstrating such measures to be necessary and appropriate.
    Comment 15. Several commenters indicated that the regulations and 
the FMP are not consistent with national standard 1.
    Response. The FMP implements a rebuilding program that will prevent 
overfishing and attain Maximum Sustainable Yield (MSY) through a 
constant harvest strategy (within a reasonable time). The rebuilding 
strategy chosen is based on analyses conducted by the NMFS Northeast 
Fisheries Science Center (NEFSC) and has a 50-percent probability of 
rebuilding tilefish to the biomass that will support the MSY level 
within 10 years. The Council considered 13 rebuilding schedules that 
were either based on constant harvest levels or fishing mortality 
reduction levels, all of which were designed to rebuild to the biomass 
that will support MSY. The critical choices that the Council made were 
the selection of the time frame of 10 years for rebuilding and of the 
probability of rebuilding within that time frame of 50-percent. In 
addition, a benchmark stock assessment will be conducted every 3 years 
through the NEFSC Stock Assessment Review Committee (SARC)/Stock 
Assessment Workshop (SAW) process, the results of which will be 
evaluated by the Tilefish FMP Monitoring Committee. The Council will 
consider any recommendations of the Monitoring Committee and can adjust 
the annual harvest level in order to assure that the tilefish stock 
will be rebuilt within 10 years. This management strategy is consistent 
with national standard 1.
    Comment 16. One commenter alleged that the preamble of the proposed 
regulations is inaccurate with respect to the discussion of the 
economic impacts of the FMP. The commenter stated that numbers clearly 
qualify a current vessel participant for a full-time tier 2 permit, yet 
the vessel is not included in the analysis.
    Response. All of the analyses performed by the Council were blind. 
No individual vessels were identified in these analyses. The analyses 
employed the best and most recent data available in the NMFS database. 
The FMP has yet to be implemented. Once these regulations become 
effective, the participant concerned can apply for the full-time tier 2 
category permit by submitting supporting landings information. If the 
participant's application is denied, the participant has the right to 
appeal the denial. The FMP and its implementing regulations include a 
provision for appeal, and individuals will be given an opportunity to 
document any landings they believe are inaccurate after the FMP is 
implemented.
    Comment 17. One commenter believed that the FMP does not comply 
with national standard 1, and, notwithstanding data before the 
Secretary, the Secretary, in violation of national standard 2, failed 
to consider all the relevant economic impacts, and to use the best 
scientific and commercial information in approving the FMP.
    Response. See the response to Comment 4 related to national 
standard 1. All data used in developing the FMP and its management 
measures were based on the best and most recent information contained 
in the NMFS database. These data constitute the best scientific 
information available. Thus, the FMP does not violate national standard 
2.
    Comment 18. One commenter stated that the Magnuson-Stevens Act 
requires that all the fishery management plans be consistent with other 
applicable laws. The commenter believes other applicable laws include 
the antitrust laws, which the commenter believes were violated during 
the FMP development process.
    Response. Under the Noerr-Pennington doctrine, antitrust law does

[[Page 49140]]

not prohibit two or more persons from associating together to petition 
a government body to take a particular action with respect to a law 
that would produce a restraint of trade or monopoly. Thus, the 
industry's presentation to the Council of a further option it favored 
to manage the tilefish fishery did not violate antitrust law.
    Comment 19. One commenter suggested that workable, protective 
measures to protect endangered species are preferable to cooperation 
between enforcement agencies and tilefish fishermen, as advocated in 
the FMP, to ensure compliance with the Endangered Species Act (ESA).
    Response. NMFS conducted a formal section 7 consultation for the 
FMP, consistent with ESA guidelines. The biological opinion 
accompanying the consultation concluded that the tilefish fishery may 
take a small number of loggerhead and leatherback sea turtles. This 
small take is not expected to result in jeopardy to either sea turtle 
species or to other endangered and/or threatened species under NMFS' 
jurisdiction, including right whales and their critical habitat. Thus, 
protection measures for these species are not necessary at this time.
    Comment 20. Several commenters, including a bait dealer, three crew 
members, a wharf owner, and a tackle dealer, claimed that the 
implementation of a limited access program and the commensurate 
reduction in potential harvest for a particular vessel would have 
significant negative economic impacts on their businesses and 
livelihoods.
    Response. NMFS recognizes that there may be ancillary economic 
impacts on small entities, other than dealers and vessels, from actions 
that reduce fishing activity. Since the number of present participants 
in the fishery is small (from a total of 215 vessels that landed any 
tilefish in 1998, the FMP identified 4 full-time tier 1; 4 full-time 
tier 2; and 42 part-time vessels), it would seem unlikely that they 
would provide a major share of revenues to dockside businesses. Crew 
members are not considered to be small businesses under the Regulatory 
Flexibility Act. Because the limited entry scheme is based in large 
part on recent participation in the fishery, it is highly likely that 
tilefish vessels currently patronizing these businesses will continue 
to do so, possibly in conjunction with participation in other 
fisheries. Further, the constant harvest strategy adopted in the FMP 
should provide for a steadier fishery and income for all concerned. 
However, NMFS recognizes that limited access could yield negative 
economic impacts for all entities affected by the final rule. Economic 
impacts on communities affected by the tilefish fishery were considered 
by the Council and are addressed in the FMP.

Changes From the Proposed Rule

    In Sec. 648.2, a definition of the tilefish management unit is 
added to distinguish management of the northern portion of the tilefish 
stock under the FMP, from management of the southern portion of the 
tilefish stock under the NMFS Southeast Region Snapper/Grouper 
fisheries.
    In Sec. 648.4, paragraph (a)(12) is revised to clarify that 
tilefish fished for, possessed, or landed in or from the EEZ means 
tilefish in or from the tilefish management unit.
    In Sec. 648.4, paragraph (a)(12)(i) is revised to clarify that the 
vessel must have landed the specified amounts of tilefish under 
paragraph (a)(12)(i)(A) within the tilefish management unit to qualify 
for a limited access tilefish permit.
    In Sec. 648.4, paragraph (a)(12)(ii), the title and paragraph 
(a)(12)(ii)(A) are removed, the subsequent paragraphs (a)(12)(ii)(B) 
through (M) are redesignated as paragraphs (a)(12)(i)(B) through 
(M),and the removed title and paragraph language are added to the newly 
redesignated paragraph (a)(12)(i)(I) (previously reserved).
    In Sec. 648.4, the newly redesignated paragraph 
(a)(12)(i)(M)(3)(ii) is redesignated paragraph (a)(12)(ii) and revised 
to clarify the description of eligibility and conditions for issuance 
of tilefish incidental catch permits and to indicate that vessels with 
tilefish incidental catch permits may only possess or land tilefish in 
or from the tilefish management unit.
    In Sec. 648.4, the newly redesignated paragraph (a)(12)(i)(M)(3)(i) 
is redesignated as the text of paragraph (a)(12)(i)(M)(3).
    In Sec. 648.4, paragraph (b) is revised to clarify that any vessel 
owner whose vessel is permitted to fish in the tilefish management unit 
for the species managed under the FMP must comply with the more 
restrictive of either state, local or Federal regulations.
    In Sec. 648.5, paragraph (a) is revised to clarify that any vessel 
operators who are fishing for or possessing tilefish taken from the 
tilefish management unit must have a valid operator permit.
    In Sec. 648.7, paragraph (a)(2)(i) is corrected to include tilefish 
as a species of fish that is not required to be reported by federally 
permitted dealers through the IVR system.
    In Sec. 648.7, paragraph (b)(1)(iv) is corrected by removing 
paragraphs (b)(1)(iv)(A) and (B), and by revising paragraph (b)(1)(iv) 
to state that IVR reports must be submitted on a per- trip basis, 
rather than on a weekly basis.
    In Sec. 648.12, the introductory text is corrected to show that 
tilefish has been redesignated from subpart M to subpart N of 50 CFR 
part 648. Subpart M has been assigned to the Atlantic Deep-Sea Red Crab 
Fishery; therefore ``Management Measures for the Tilefish Fishery'' 
will appear as subpart N.
    In Sec. 648.14, paragraphs (x)(11) and (cc)(1), (2), (3), (8), and 
(9) are modified to clarify that the prohibitions apply to activities 
dealing with tilefish harvested in or from the tilefish management 
unit.
    In Sec. 648.14, the introductory text of paragraph (cc) is modified 
to exempt vessels participating in a research activity, as described in 
Sec. 648.290 (previously Sec. 648.250), from the general prohibitions 
specified at Sec. 600.725.
    In Sec. 648.14, paragraph (cc)(4) is removed because there is no 
processor permit. Subsequent paragraphs in paragraph (cc) have been 
renumbered and the comments that follow refer to the renumbered 
paragraphs.
    In Sec. 648.14, paragraph (cc)(6) is revised to include the gear 
restriction related to other than longline gear.
    In Sec. 648.14, paragraphs (cc)(7) and (8) are revised to update 
the reference.
    In Sec. 648.14, paragraph (cc)(9) is added to specify that the 
landing of tilefish harvested by vessels fishing in U.S. waters in 
excess of the incidental catch limit is prohibited in the tilefish 
management unit, unless the vessel holds a limited access tilefish 
permit.
    In subpart N, Secs. 648.250 through 648.254 have been redesignated 
as Secs. 648.290 through 648.294, respectively, for consecutive 
numbering.
    In Sec. 648.290 (previously Sec. 648.250), paragraphs (b) and (d) 
are revised and paragraph (e) is added to allow for the set-aside of up 
to 3-percent of the tilefish TAL for purposes of compensation for 
research, consistent with Framework 1.
    Section 648.294 (previously Sec. 648.254) has been revised to 
specify the gear stowage requirements for gear other than longline 
gear.

Classification

    NMFS has determined that the FMP that this rule implements is 
necessary for the conservation and management of the tilefish fishery 
and is consistent with the Magnuson-Stevens Act and other applicable 
laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared a FEIS for this FMP; a notice of availability 
was

[[Page 49141]]

published on February 12, 2001 (66 FR 9814). NMFS determined, upon 
review of the FMP/FEIS and public comments, that approval and 
implementation of the FMP is preferable to the status quo and other 
considered alternatives. The FMP contains management measures capable 
of preventing overfishing; providing economic and social benefits to 
the fishing industry in the long term; and contributing to enhancement 
of the ecosystem through a rebuilt tilefish resource.
    NMFS prepared a final regulatory flexibility analysis (FRFA) for 
this action, which complies with Section 604 of the Regulatory 
Flexibility Act. The FRFA includes the IRFA, comments on the IRFA, 
responses to those comments as contained in this preamble, and a 
summary of the analyses done in support of this final rule. The 
preamble to the proposed rule included a detailed summary of the 
analyses contained in the IRFA, and that discussion is not repeated in 
its entirety here. A summary of the FRFA follows:
    A description of the reasons why action by the agency is being 
considered and the objectives of the action are explained in the 
preamble to the proposed rule and are not repeated here. This action 
contains reporting and recordkeeping requirements that were analyzed in 
the IRFA. It will not duplicate, overlap, or conflict with any other 
Federal rules. This action is taken under authority of the Magnuson-
Stevens Act and regulations at 50 CFR part 648.

Public Comments

    Three hundred and six comments were submitted during the comment 
periods on the FMP and proposed rule. The majority of comments were not 
specifically on the IRFA, but several were related to economic impacts 
on small entities. The comments and responses are contained in the 
Comments and Responses section of the preamble of this final rule and 
are not repeated here. Comments 6, 9, 10, 11, 12, 13, 16, and 17 were 
specifically directed at the economic consequences of the FMP and, 
particularly, at the limited entry program and its potential impacts on 
individual vessels, all of which are small entities.

Number of Small Entities

    All of the businesses (fishing vessels, dealers and processors) 
affected by this final rule are considered small entities. In 1998, 215 
different vessels landed tilefish along the Atlantic coast. In 1998, 83 
federally permitted seafood dealers handled tilefish. Fewer than three 
permitted processors reported processing tilefish in 1998 for the 
Northeast and Southeast Regions combined. Tilefish constituted a very 
small percentage of their total volume and value of processed products.

Cost of Compliance

    It is estimated that, in 1998, 215 different vessels landed 
tilefish along the Atlantic coast. Under this final rule, any vessel 
fishing commercially for tilefish must obtain a Federal vessel tilefish 
permit in order to fish for tilefish in the EEZ. From January 1, 1988, 
to June 15, 1993, 312 vessels landed at least 1 lb (0.45 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 
permit applications as a result of this final rule. Overhead costs 
herein are based on an estimated $15.00 per hour. Annual initial costs 
for vessel permits are estimated to be $106 ($0.34 per vessel x 312 
vessels) for postage and $2,340 ($7.50 per vessel x 312 vessels) for 
clerical costs. Annual initial costs for dealer permits are estimated 
to be $3.40 ($0.34 x 10 dealers) for postage and $12.50 ($1.25 per 
dealer x 10 dealers) for clerical costs. It is estimated that 85 of the 
vessels expected to apply for an initial vessel permit do not presently 
possess a Northeast fisheries permit; therefore, for operator permits, 
an annual cost of $29 ($0.34 per operator x 85 vessels) for postage is 
expected and an annual cost of $1750 ($15.00 per operator x 85 
vessels)for clerical costs is expected. Also, a cost of $850 ($10 per 
vessel x 85 vessels) is expected 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 as follows: $1.70 (0.34 per vessel 
x 5 vessels) for postage, and $225 ($45.00 x 5 vessels) for clerical 
costs. Eighty-five vessels currently do not report under the system in 
place for Northeast permit holders; therefore, annual costs of 
submitting vessel logbooks are expected to be $347 ($4.08 x 85 vessels) 
for postage and $1,275 ($15.00 per vessel x 85 vessels) for clerical 
costs. Annual costs of submitting dealer reports are expected to be 
$177 ($17.70 per dealer x 10 dealers) for postage and $260 ($26.0 x 10 
dealers) for clerical costs.

Minimizing Economic Impacts on Small Entities

    The 10-year constant harvest rebuilding strategy using a 50-percent 
probability of meeting the rebuilding target of 10 years will allow 
greater landings during the initial years of the FMP implementation 
than any alternative strategy considered by the Council. For example, 
the highest constant F strategy (F=.168) would have allowed only 1.299 
million lb (589.2 mt) to be landed in fishing year 2001, compared to 
1.995 million lb (904.9 mt) resulting from the preferred strategy. 
Landing levels under status quo for 2001 were projected to be 2.3 
million lb (1043 mt) for all permit categories, or 305,000 lb (138 mt) 
more than the quota under the preferred management option. However, the 
long-term benefits of the preferred management strategy will likely 
outweigh the short-term negative economic impacts to all vessels, 
dealers, and other segments of the industry. At an ex-vessel price of 
$2.00 per lb ($0.90 per kg) revenues of approximately $600,000 will be 
foregone in 2001 under the preferred management strategy, though the 
effects will be disproportionately distributed among the limited access 
permit categories, due to their different quota allocations. Vessels in 
the tier 1 full-time category (66 percent), assuming equal landings 
among vessels within the category, have the potential to be affected 
the most, followed by part-time vessels (19 percent), tier 2 full-time 
category vessels (15 percent), and vessels in the incidental catch 
category (5 percent).
    Because tilefish are overfished, the Council determined that it was 
necessary to limit access into the fishery, not only due to the 
condition of the stock, but the rate at which the present fishery was 
harvesting tilefish. The Council further recognized that short-term 
economic losses for the aggregate of vessels and dealers would result 
from implementation of severe constraints on harvest. Unfortunately, 
there is no mechanism to mitigate entirely the aggregate negative 
short-term impacts of these measures on vessels participating in a 
limited access fishery.
    The FMP maintains present participation in the tilefish fishery, 
while recognizing that not all vessels will qualify for limited access 
permits. The FMP allows vessel owners who apply for an individual 
permit category, to furnish proof of landings, and to appeal if a 
limited access permit application is denied by NMFS. This allows 
vessels that did not pre-qualify for permits to apply and qualify for a 
limited access permit category. Vessels that landed tilefish in the 
1980s have an opportunity to participate in the fishery under the part-
time permit category if they have the requisite level of landings,

[[Page 49142]]

even though they did not appear in the NMFS database.
    This final rule contains new collection-of-information requirements 
and also subjects persons to collection-of-information requirements not 
contained in the rule. For example, persons obtaining vessel permits 
under this rule automatically become subject to vessel trip reporting 
requirements, although the later are not mentioned in this rule. Both 
types of requirements are subject to the PRA and were approved by the 
Office of Management and Budget (OMB). The OMB control numbers and the 
estimated time for a response are as follows:
    Tilefish vessel permits, OMB control number 0648-0202 (30 minutes/
response).
    Tilefish vessel permits renewal, OMB control number 0648-0202 (15 
minutes/response).
    Tilefish vessel permit appeals, OMB control number 0648-0202 (180 
minutes/response).
    Tilefish vessel confirmations of permit history, OMB control number 
0648-0202 (30 minutes/response).
    Tilefish vessel replacements or upgrades, OMB control number 0648-
0202 (180 minutes/response).
    Operator permits, OMB control number 0648-0202 (60 minutes/
response).
    Dealer permits, OMB control number 0648-0202 (5 minutes/response).
    Annual processor reports, OMB control number 0648-0018 (30 minutes/
response).
    Vessel trip reports, OMB control number 0648-0212 (5 minutes/
response).
    IVR system vessel reports, OMB control number 0648-0212 (4 minutes/
response).
    IVR system dealer reports, OMB control number 0648-0229 (4 minutes/
response).
    Dealer logbook reports, OMB control number 0648-0229 (2 minutes/
response).
    Vessel Identification, OMB control number 0648-0350 (45 minutes/
response).
    The aforementioned response 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. Send comments regarding these burden 
estimates, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).
    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.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping Requirements.

    Dated: September 19, 2001.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

    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 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 of ``Council'' is revised and new 
definitions for ``Tilefish FMP Monitoring Committee'' and ``Tilefish 
Management Unit'' are 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.
    Tilefish Management Unitmeans an area of the Atlantic Ocean from 
the latitude of the VA and NC border (36 deg.33.36' N. Lat.), extending 
eastward from the shore to the outer boundary of the exclusive economic 
zone and northward to the United States-Canada border in which the 
United States exercises exclusive jurisdiction over all golden tilefish 
(Lopholatilus chamaeleonticeps) fished for, possessed, caught or 
retained in or from such area.
* * * * *

    4. In Sec. 648.4, paragraph (a)(12) is added and paragraph (b) is 
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, possess, or land tilefish in or from the tilefish management unit.
    (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, provided that the 
vessel landed the specified amounts of tilefish to meet such criteria 
within the tilefish management unit:
    (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, at least

[[Page 49143]]

1 lb (2.20 kg) of which was landed prior to June 15, 1993.
    (B) Application/renewal restriction--(1) Initial application. A 
vessel owner must apply for an initial limited access tilefish permit 
before November 1, 2002, one year from the effective date of the 
regulations.
    (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) Limited access permit restrictions. (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 tilefish permit may not be 
issued an incidental catch tilefish permit during a fishing year.
    (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. 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. A vessel of the United 
States that is subject to these regulations and that has not been 
issued a limited access tilefish permit is eligible for and may be 
issued a tilefish incidental catch permit to possess or land tilefish 
in or from the tilefish management unit. 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, any vessel owner permitted to fish in 
the EEZ for any species except tilefish managed under this part must 
comply with the more restrictive requirement. 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 tilefish management unit for tilefish 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 coast-wide 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:

[[Page 49144]]

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, or 
bluefish harvested in or from the EEZ, or tilefish harvested in or from 
the tilefish management unit, 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)(1) 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.
* * * * *

    7. In 648.7, the first sentence of 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) * * *
    (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 and 
tilefish; reporting week in which species were purchased; and state of 
landing for each species purchased. * * *
* * * * *
    (b) * * *
    (1) * * *
    (iv) The owner or operator of any vessel issued a limited access 
permit for tilefish must submit a tilefish catch report via the IVR 
system within 24 hours after returning to port and offloading as 
required by the Regional Administrator. The report shall include at 
least the following information, and any other information required by 
the Regional Administrator: Vessel identification, trip during which 
species are caught, and pounds landed. IVR reporting does not exempt 
the owner or operator from other applicable reporting requirements of 
Sec. 648.7.
* * * * *

    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 
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), M (deep-sea red crab), and N (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 in or 
from the tilefish management unit, 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, unless participating in a research 
activity as described in Sec. 648.290(e), it is unlawful for any person 
owning or operating a vessel 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 tilefish management unit 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 tilefish 
management unit by a vessel engaged in recreational fishing.

[[Page 49145]]

    (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 
tilefish management unit, 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 tilefish management unit, without having 
been issued, and in possession of, a valid tilefish dealer permit.
    (4) 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.
    (5) 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.
    (6) Fish for tilefish, with any other than longline gear, while in 
possession of a limited access permit, as specified in Sec. 648.294.
    (7) Possess tilefish harvested in or from the tilefish management 
unit in excess of the trip limit, pursuant to Sec. 648.292, unless 
issued a limited access tilefish permit.
    (8) Land tilefish harvested in or from the tilefish management unit 
for sale after the effective date of the notification in the Federal 
Register, pursuant to Sec. 648.291, which notifies permit holders in a 
limited access category that the quota for that category is no longer 
available.
    (9) Land tilefish in or from the tilefish management unit, in 
excess of the trip limit pursuant to Sec. 648.292, unless the vessel 
holds a valid limited access tilefish permit.

    11. In 50 CFR part 648, subpart N is added to read as follows:

Subpart N--Management Measures for the Tilefish Fishery

Sec.
648.290  Catch quotas and other restrictions.
648.291  Closures.
648.292  Tilefish trip limits.
648.293  Framework specifications.
648.294  Gear restrictions.

Subpart N--Management Measures for the Tilefish Fishery


Sec. 648.290  Catch quotas and other restrictions.

    The fishing year is the 12-month period beginning with November 1, 
2001.
    (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) TAL allocation. For each fishing year, up to 3 percent of the 
TAL may be set aside for the purpose of funding research. Once a 
research TAC, if any, is set aside, the TAL will first be reduced by 5 
percent to adjust for the incidental catch. The remaining 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 of the quota for any 
limited access category that occur 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. 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 next fishing year, the 
appropriate TAL for the next fishing year, the percentage of TAL 
allocated to research quota, 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 and any management measures to assure that 
the TAL will not be exceeded. After considering public comments, NMFS 
will publish a final rule in the Federal Register to implement a TAL 
and any management measures. The previous year's specifications will 
remain effective unless revised through the specification process and/
or the research quota process described in paragraph (e) of this 
section. NMFS will issue notification in the Federal Register if the 
previous year's specifications will not be changed.
    (e) Research quota. See Sec. 648.21(g).


Sec. 648.291  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. 648.292  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. 648.293  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.
    (1) Specific management measures. The following specific management 
measures may be implemented or adjusted at any time through the 
framework process:
    (i) Minimum fish size,
    (ii) Minimum hook size,
    (iii) Closed seasons,
    (iv) Closed areas,
    (v) Gear restrictions or prohibitions,
    (vi) Permitting restrictions,
    (vii) Gear limits,

[[Page 49146]]

    (viii) Trip limits,
    (ix) Overfishing definition and related thresholds and targets,
    (x) Annual specification quota setting process,
    (xi) Tilefish FMP Monitoring Committee composition and process,
    (xii) Description and identification of EFH,
    (xiii) Fishing gear management measures that impact EFH,
    (xiv) Habitat areas of particular concern, and
    (xv) Set-aside quotas for scientific research.
    (2) 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.
    (3) 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.
    (4) 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. 648.294  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, or possess gear other than longline gear unless properly 
stowed in accordance with Sec. 648.23.
[FR Doc. 01-24117 Filed 9-25-01; 8:45 am]
BILLING CODE 3510-22-S