[Federal Register Volume 61, Number 129 (Wednesday, July 3, 1996)]
[Rules and Regulations]
[Pages 34966-35011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16660]
[[Page 34965]]
_______________________________________________________________________
Part III
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 902
50 CFR Part 625, et al.
Fisheries of the Northeastern United States; Final Rule
Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Rules
and Regulations
[[Page 34966]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Parts 625, 648, 650, 651, 652, 655, and 657
[Docket No. 960612172-6172-01; I.D. 051096C]
RIN 0648-AI21
Fisheries of the Northeastern United States
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS is consolidating six CFR parts governing the marine
fisheries of the Northeast region into one new CFR part. The new part
contains regulations implementing the fishery management plans (FMPs)
for: summer flounder; Atlantic sea scallops; Northeast multispecies;
Atlantic surf clams and ocean quahogs; Atlantic mackerel, squid, and
butterfish; and Atlantic salmon and implementing management measures
for scup. This final rule reorganizes the FMPs' and scup management
measures into a more logical and cohesive order, removes duplicative
and outdated provisions, and makes technical and editorial changes to
improve readability and clarity, to achieve uniformity in regulatory
language, and to correct errors in the existing regulations. This final
rule also amends references to Paperwork Reduction Act (PRA)
information collection requirements to reflect the consolidation. The
purpose of this final rule is to make the regulations more concise,
better organized, and thereby easier for the public to use. This action
is part of the President's Regulatory Reinvention Initiative.
EFFECTIVE DATE: July 1, 1996, except for paragraphs (a)(78), (k), and
(l) of Sec. 648.14, and subpart H of part 648 (Secs. 648.124--648.125),
which are effective from July 1, through September 29, 1996.
ADDRESSES: Comments regarding burden-hour estimates for collection-of-
information requirements contained in this rule should be sent to Dr.
Andrew A. Rosenberg, Regional Director, 1 Blackburn Drive, Gloucester,
MA 01930 and the Office of Information and Regulatory Affairs, Office
of Management and Budget (OMB), Washington, D.C. 20503 (Attention: NOAA
Desk Officer).
FOR FURTHER INFORMATION CONTACT: Patricia A. Kurkul, NMFS, 508-281-
9331.
SUPPLEMENTARY INFORMATION:
Background
In March 1995, President Clinton issued a directive to Federal
agencies regarding their responsibilities under his Regulatory
Reinvention Initiative. This initiative is part of the National
Performance Review and calls for comprehensive regulatory reform. The
President directed all agencies to undertake a review of all their
regulations, with an emphasis on eliminating or modifying those that
are obsolete, duplicative, or otherwise in need of reform. This final
rule is intended to carry out the President's directive with respect to
those regulations implementing Northeast region FMPs and management
measures for scup.
Currently, regulations implementing the FMPs for the Northeast
fisheries are contained in six separate CFR parts (50 CFR parts 625,
650, 651, 652, 655, and 657). NMFS, through this rulemaking, removes
those six parts and consolidates the regulations contained therein into
one new part (50 CFR part 648). This consolidated regulation provides
the public with a single reference source for Federal fisheries
regulations specific to the Northeast region. The restructuring of six
parts into a single part results in one set of regulations that is more
concise, clearer, and easier to use than six separate parts. General
regulations pertaining to all fisheries and regulations pertaining to
foreign fisheries have been consolidated and restructured in new 50 CFR
part 600 by earlier rulemaking.
The summer flounder fishery in the Northwest Atlantic is managed
jointly by NMFS and the Atlantic States Marine Fisheries Commission
(Commission) under the FMP for the summer flounder fishery, which is
implemented by regulations formerly at 50 CFR part 625. This FMP was
prepared by the Mid-Atlantic Fishery Management Council (MAFMC) in
cooperation with Commission and the New England Fishery Management
Council (NEFMC) and the South Atlantic Fishery Management Council
(SAFMC). NMFS manages the harvest of sea scallops under the FMP for the
Atlantic sea scallop fishery, which is implemented through regulations
formerly at 50 CFR part 650. The Northeast multispecies fishery is
managed by NMFS under regulations implementing the FMP for the
Northeast multispecies fishery formerly at 50 CFR part 651. The FMPs
for the Atlantic sea scallop fishery and the Northeast multispecies
fisheries were prepared by the NEFMC, in consultation with the MAFMC
(multispecies and scallops) and the SAFMC (scallops). Atlantic surf
clam and ocean quahog fisheries are managed by NMFS under regulations
implementing the FMP for the Atlantic surf clam and ocean quahog
fisheries formerly at 50 CFR part 652. This FMP was prepared by the
MAFMC in consultation with the NEFMC. Atlantic mackerel, squid, and
butterfish fisheries are managed by NMFS under the FMP for the Atlantic
mackerel, squid, and butterfish fisheries of the Northwest Atlantic
Ocean, which is implemented by regulations formerly at 50 CFR part 655.
The regulations governing fishing for Atlantic mackerel, squid, and
butterfish by vessels other than vessels of the United States are
contained in 50 CFR part 600. This FMP was prepared by the MAFMC. The
Atlantic salmon fishery is managed by NMFS under the FMP for Atlantic
salmon, which is implemented by regulations formerly at 50 CFR part
657. This FMP was prepared by the NEFMC.
All of these FMPs were prepared under the authority of the Magnuson
Fishery Conservation and Management Act.
The MAFMC recently submitted to NMFS Amendment 8 to the FMP for the
summer flounder fishery. That amendment would include scup in the
management unit of the FMP. The MAFMC requested NMFS to impose
management measures for scup on an emergency interim basis pending its
requested approval and implementation of Amendment 8. The emergency
measures imposed by NMFS formerly appeared at 50 CFR part 625.
In new part 648, portions of the existing regulations that contain
identical or nearly identical provisions have been combined and
restructured into similar measures. Paragraph headings have been added
for ease in identifying measures, and regulatory language has been
revised to make needed technical changes and corrections and to improve
clarity and consistency.
Section 3507(c)(B)(i) of the PRA requires that agencies inventory
and display a current control number assigned by the Director, OMB, for
each agency information collection. Section 902.1(b) of 15 CFR
identifies the location of NOAA regulations for which OMB approval
numbers have been issued. Because this final rule recodifies many
recordkeeping and reporting requirements, it also revises section
902.1(b) to reference correctly the new
[[Page 34967]]
sections resulting from the consolidation.
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
Because this rule makes only nonsubstantive and technical changes
to existing regulations, no useful purpose would be served by providing
advance notice and opportunity for public comment. Accordingly, the
Assistant Administrator for Fisheries, NOAA, under 5 U.S.C. 553(b)(B),
for good cause finds that providing notice and opportunity for public
comment is unnecessary. To the extent that the technical changes made
by this rule are nonsubstantive, they are not subject to a 30-day delay
in effective date under 5 U.S.C. 553(d). To the extent that the
technical changes made by this rule are substantive, the Assistant
Administrator, under 5 U.S.C. 553(d)(3), for good cause finds that it
is impracticable, unnecessary, and contrary to the public interest to
delay their effective date for 30 days. The technical changes do not
require any changes in the conduct of fishery participants and thus a
30-day delay in effective date is unnecessary. Further to delay their
effectiveness would make it extremely difficult for the affected public
to use and understand the regulations and, thus, such a delay would be
impracticable and contrary to the public interest.
Notwithstanding any other provision of 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.
The following collection-of-information requirements for Northeast
fisheries have been approved by OMB:
(a) Approved under 0648-0018--Processed Products Family of Forms--
(1) Fishery products: Fish meal oil = 9.6 min/response; (2) fishery
products U.S Processors and wholesalers: 3.5 min/response; (3) small
processors = 6.6 min/response; (4) large processors = 3.85 min/
response; and (5) additional responses in mandatory fisheries = 6.6
min/response.
(b) Approved under 0648-0202--Northeast Permit Family of Forms--(1)
Vessel permit (initial) = 30 min/response; (2) vessel permit (renewal)
5 min/response; (3) appeal permit denial = 30 min/response; (4)
operator permit = 1 hr/response; (5) dealer permit = 5 min/response;
(6) observer deployments 2 min/response; (7) experimental fishing
exemption = 1.9 hr/response; and (8) vessel identification = 45 min/
response.
(c) Approved under 0648-0212--Vessel Logbooks--(1) Vessel log = 5
min/response; (2) shellfish log = 12.5 min/response; and (3) pound net
log = 15 min/response.
(d) Approved under 0648-0229--Dealer Purchase Reports = 2 min/
response.
(e) Approved under 0648-0235--Survey of Intent and Capacity--
Written response = 15 min/response; phone = 5 min/response.
(f) Approved under 0648-0238--ITQ Allocation Transfer Request = 5
min/response.
(g) Approved under 0648-0240--Application to Shuck at Sea = 5 min/
response.
(h) Approved under 0648-0305--Gear Identification Requirements = 1
min/response.
(i) Approved under 0648-0306--Vessel Identification Requirements =
45 min/response.
(j) Approved under 0648-0307--Vessel Monitoring and Communications
Requirements (VTS) = 5 sec/response.
The estimated response times include the time needed for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding burden estimates, or
any other aspect of these data collections, including suggestions for
reducing the burden, to NMFS and OMB (see ADDRESSES).
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Parts 625, 648, and 651
Fisheries, Fishing, Reporting and recordkeeping requirements.
50 CFR Parts 650, 652, and 655
Fisheries, Reporting and recordkeeping requirements.
50 CFR Part 657
Fisheries, Fishing.
Dated: June 24, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 15 CFR chapter IX and,
under the authority of 16 U.S.C. 1801 et seq., 50 CFR chapter VI are
amended as follows:
15 CFR CHAPTER IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, paragraph (b) the table is amended by removing in
the left column under 50 CFR, the entries ``625.4'', ``625.5'',
``625.6'', ``625.7'', ``625.20'', ``625.27'', ``650.4'', ``650.5'',
``650.6'', ``650.7'', ``650.8'', ``650.24'', ``650.25'', ``650.26'',
``650.28'', ``651.4'', ``651.5'', ``651.6'', ``651.7'', ``651.8'',
``651.20'', ``651.21'', ``651.22'', ``651.25'', ``651.28'', ``651.29'',
``652.4'', ``652.5'', ``652.6'', ``652.7'', ``652.9'', ``652.20'',
``652.24'', ``655.4'' and 655.6'', and in the right column, in
corresponding positions, the control numbers; and by adding, in
numerical order, the following entries to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
CFR part or section where the
information collection requirement Current OMB control number (all
is located numbers begin with 0648-)
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
648.4............................... -0202, -0212
648.5............................... -0202
648.6............................... -0202
648.7............................... -0018, -0212 and -0229
648.8............................... -0306, -0229
648.9............................... -0202 and -0307
648.10.............................. -0202
648.11.............................. -0202
648.15.............................. -0202
648.53.............................. -0202
648.70.............................. -0238
648.74.............................. -0240
648.80.............................. -0202
648.81.............................. -0202
648.82.............................. -0202
648.84.............................. -0305
648.100............................. -0202
648.106............................. -0202
------------------------------------------------------------------------
* * * * *
3. Part 648 is added effective July 1, 1996, except for paragraphs
(a)(78), (k), and (l) of Sec. 648.14 and subpart H (Secs. 648.124--
648.125), which are effective from July 1, through September 29, 1996,
to read as follows:
[[Page 34968]]
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
Subpart A--General Provisions
Sec.
648.1 Purpose and scope.
648.2 Definitions.
648.3 Relation to other laws.
648.4 Vessel permits.
648.5 Operator permits.
648.6 Dealer/processor permits.
648.7 Recordkeeping and reporting requirements.
648.8 Vessel identification.
648.9 VTS requirements.
648.10 DAS notification requirements.
648.11 At-sea sea sampler/observer coverage.
648.12 Experimental fishing.
648.13 Transfers at sea.
648.14 Prohibitions.
648.15 Facilitation of enforcement.
648.16 Penalties.
Subpart B--Management Measures for the Atlantic Mackerel, Squid,
and Butterfish Fisheries
648.20 Maximum OYs.
648.21 Procedures for determining initial annual amounts.
648.22 Closure of the fishery.
648.23 Gear restrictions.
Subpart C--Management Measures for Atlantic Salmon
648.40 Prohibition on possession.
Subpart D-- Management Measures for the Atlantic Sea Scallop
Fishery
648.50 Shell-height standard.
648.51 Gear and crew restrictions.
648.52 Possession restrictions.
648.53 DAS allocations.
648.54 State waters exemption.
648.55 Framework adjustments to management measures.
Subpart E--Management Measures for the Atlantic Surf Clam and Ocean
Quahog Fisheries
648.70 Annual individual allocations.
648.71 Catch quotas.
648.72 Minimum surf clam size.
648.73 Closed areas.
648.74 Shucking at sea.
648.75 Cage identification.
Subpart F--Management Measures for the NE Multispecies Fishery
648.80 Regulated mesh areas and restrictions on gear and methods of
fishing.
648.81 Closed areas.
648.82 Effort-control program for limited access vessels.
648.83 Minimum fish sizes.
648.84 Gear-marking requirements and gear restrictions.
648.85 Flexible Area Action System.
648.86 Possession restrictions.
648.87 Sink gillnet requirements to reduce harbor porpoise takes.
648.88 Open access permit restrictions.
648.89 Recreational and charter/party restrictions.
648.90 Framework specifications.
Subpart G--Management Measures for the Summer Flounder Fishery
648.100 Catch quotas and other restrictions.
648.101 Closures.
648.102 Time restrictions.
648.103 Minimum fish sizes.
648.104 Gear restrictions.
648.105 Possession restrictions.
648.106 Sea turtle conservation.
Subpart H--Management Measures for the Scup Fishery
648.124 Gear restrictions.
648.125 Minimum fish sizes.
Authority: 16 U.S.C. 1801 et seq.
Subpart A--General Provisions
Sec. 648.1 Purpose and scope.
(a) This part implements the fishery management plans for the
Atlantic mackerel, squid, and butterfish fisheries (Atlantic Mackerel,
Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon FMP); the
Atlantic sea scallop fishery (Atlantic Sea Scallop FMP (Scallop FMP));
the Atlantic surf clam and ocean quahog fisheries (Atlantic Surf Clam
and Ocean Quahog FMP); the Northeast multispecies fishery (NE
Multispecies FMP); and the summer flounder fishery (Summer Flounder
FMP). These FMPs and the regulations in this part govern the
conservation and management of fisheries of the northeastern United
States.
(b) This part governs domestic fishing only. Foreign fishing is
governed under subpart F of part 600 of this chapter.
Sec. 648.2 Definitions.
In addition to the definitions in the Magnuson Act and in
Sec. 600.10 of this chapter, the terms used in this part have the
following meanings:
Alewife means Alosa pseudoharengus.
American lobster or lobster means Homarus americanus.
American shad means Alosa sapidissima.
Atlantic butterfish or butterfish means Peprilus triacanthus.
Atlantic croaker means Micropogonias undulatus.
Atlantic mackerel or mackerel means Scomber scombrus.
Atlantic Mackerel, Squid, and Butterfish Monitoring Committee means
the committee made up of staff representatives of the MAFMC and the
NEFMC, and the Northeast Regional Office and NEFSC of NMFS. The MAFMC
Executive Director or a designee chairs the Committee.
Atlantic salmon means Salmo salar.
Atlantic sea scallop or scallop means Placopecten magellanicus,
throughout its range.
Black sea bass means Centropristis striata.
Blowfish (puffer) means any species in the family Tetraodontidae.
Bluefish means Pomotomus saltatrix.
Bushel (bu) means a standard unit of volumetric measurement deemed
to hold 1.88 ft\3\ (53.24 L) of surf clams or ocean quahogs in the
shell.
Cage means a container with a standard unit of volumetric
measurement containing 60 ft\3\ (1,700 L). The outside dimensions of a
standard cage generally are 3 ft (91 cm) wide, 4 ft (122 cm) long, and
5 ft (152 cm) high.
Chafing gear or cookies, with respect to the scallop fishery, means
steel, rubberized or other types of donut rings, disks, washers, twine,
or other material attached to or between the steel rings of a sea
scallop dredge.
Charter or party boat means any vessel that carries passengers for
hire to engage in recreational fishing and, with respect to
multispecies, that is not fishing under a DAS.
Combination vessel means a vessel that has fished in any one
calendar year with scallop dredge gear and otter trawl gear during the
period 1988 through 1990, and that is eligible for an allocation of
individual DAS under the NE Multispecies FMP and has applied for or
been issued a limited access scallop permit.
Commercial fishing or fishing commercially means fishing that is
intended to, or results in, the barter, trade, transfer, or sale of
fish.
Commission means the Atlantic States Marine Fisheries Commission.
Conger eel means Conger oceanicus.
Cunner means Tautogolabrus adspersus.
Council means the New England Fishery Management Council (NEFMC)
for the Atlantic sea scallop and the NE multispecies fisheries or the
Mid-Atlantic Fishery Management Council (MAFMC) for the Atlantic
mackerel, squid, and butterfish; the Atlantic surf clam and ocean
quahog; and the summer flounder fisheries.
Day(s)-at-sea (DAS), with respect to the NE multispecies and
scallop fisheries, means the 24-hour periods of time during which a
fishing vessel is absent from port in which the vessel intends to fish
for, possess or land; or fishes for, possesses, or lands regulated
species or scallops.
Dealer means any person who receives, for a commercial purpose
(other than solely for transport on land),
[[Page 34969]]
from the owner or operator of a vessel issued a valid permit under this
part, any species of fish, the harvest of which is managed by this
part.
Dredge or dredge gear, with respect to the scallop fishery, means
gear consisting of a mouth frame attached to a holding bag constructed
of metal rings, or any other modification to this design, that can be
or is used in the harvest of scallops.
Dredge bottom, with respect to scallops, means the rings and links
found between the bail of the dredge and the club stick, which, when
fishing, would be in contact with the sea bed. This includes the
triangular shaped portions of the ring bag commonly known as
``diamonds.''
Dredge top, with respect to the scallop fishery, means the mesh
panel in the top of a dredge and immediately adjacent rings and links
found between the bail of the dredge, the club stick, and the two side
panels. The bail of the dredge is the rigid structure of the forward
portion of the dredge that connects to the warp and holds the dredge
open. The club stick is the rigid bar at the tail of the dredge bag
that is attached to the rings.
Dredge vessel, with respect to the scallop fishery, means any
fishing vessel that is equipped for fishing using dredge gear and that
is capable of catching scallops.
Exempted gear, with respect to the NE multispecies fishery, means
gear that is deemed to be not capable of catching NE multispecies and
includes: Pelagic hook and line, pelagic longline, spears, rakes,
diving gear, cast nets, tongs, harpoons, weirs, dipnets, stop nets,
pound nets, pelagic gillnets, pots and traps, purse seines, shrimp
trawls (with a properly configured grate as defined under this part),
and midwater trawls.
Fishing trip or trip means a period of time during which fishing is
conducted, beginning when the vessel leaves port and ending when the
vessel returns to port.
Fishing year means:
(1) For the scallop fishery, from March 1 through the last day of
February of the following year.
(2) For the NE multispecies fishery, from May 1 through April 30 of
the following year.
(3) For all other fisheries in this part, from January 1 through
December 31.
FMP means fishery management plan.
Fourspot flounder means Paralichthys oblongus.
Gross registered tonnage (GRT) means the gross registered tonnage
specified on the USCG documentation for a vessel.
Hagfish means Myxine glutinosa.
Handline or handline gear means fishing gear that is released by
hand and consists of one main line to which is attached no more than
two leaders for a total of no more than three hooks. Handlines are
retrieved only by hand, not by mechanical means.
Harbor porpoise means Phocoena phocoena.
Harbor Porpoise Review Team (HPRT) means a team of scientific and
technical experts appointed by the NEFMC to review, analyze, and
propose harbor porpoise take mitigation alternatives.
Herring means Atlantic herring, Clupea harengus, or blueback
herring, Alosa aestivalis.
Hickory shad means Alosa mediocris.
Hook gear means fishing gear that is comprised of a hook or hooks
attached to a line and includes, but is not limited to, longline,
setline, jigs, troll line, rod and reel, and line trawl.
Illex means Illex illecebrosus (short-finned or summer squid).
John Dory means Zenopsis conchifera.
Land means to begin offloading fish, to offload fish, or to enter
port with fish.
Liner means a piece of mesh or any other material rigged inside or
outside the main or outer net or dredge that restricts the mesh or ring
size or otherwise reduces escapement.
Link, with respect to the sea scallop fishery, means the material,
usually made of a \3/8\-inch (10-mm) or \7/16\-inch (11-mm) diameter
metal rod, that joins two adjacent rings within the ring bag of a
dredge.
Loligo means Loligo pealei (long-finned or bone squid).
Longhorn sculpin means Myoxocephalus octodecimspinosus.
Longline gear means fishing gear that is or is designed to be set
horizontally, either anchored, floating, or attached to a vessel, and
that consists of a main or ground line with three or more gangions and
hooks.
Menhaden means Atlantic menhaden, Brevoortia tyrannus.
Midwater trawl gear means trawl gear that is designed to fish for,
is capable of fishing for, or is being used to fish for pelagic
species, no portion of which is designed to be or is operated in
contact with the bottom at any time.
Monkfish or anglerfish means Lophius americanus.
Mullet means any species in the family Mugilidae.
Multispecies Monitoring Committee means a team of scientific and
technical staff appointed by the NEFMC to review, analyze, and
recommend adjustments to the management measures. The team consists of
staff from the NEFMC and the MAFMC, NMFS' Northeast Regional Office,
the NEFSC, the USCG, an industry representative, and no more than two
representatives from each affected coastal state appointed by the
Commission.
NEFSC means the Northeast Fisheries Science Center, NMFS.
Net tonnage (NT) means the net tonnage specified on the USCG
documentation for a vessel.
Northeast (NE) multispecies or multispecies means the following
species:
American plaice--Hippoglossoides platessoides.
Atlantic cod--Gadus morhua.
Haddock--Melanogrammus aeglefinus.
Ocean pout--Macrozoarces americanus.
Pollock--Pollachius virens.
Redfish--Sebastes marinus.
Red hake--Urophycis chuss.
Silver hake (whiting)--Merluccius bilinearis.
White hake--Urophycis tenuis.
Windowpane flounder--Scophthalmus aquosus.
Winter flounder--Pleuronectes americanus.
Witch flounder--Glyptocephalus cynoglossus.
Yellowtail flounder--Pleuronectes ferrugineus.
Northern shrimp means Pandalus borealis.
Ocean quahog means the species Arctica islandica.
Offload or offloading means to begin to remove, to remove, to pass
over the rail, or otherwise take away fish from any vessel. For
purposes of the surf clam and ocean quahog fishery, it means to
separate physically a cage from a vessel, such as by removing the sling
or wire used to remove the cage from the harvesting vessel.
Operator means the master, captain, or other individual on board a
fishing vessel, who is in charge of that vessel's operations.
Out of the multispecies fishery or DAS program means the period of
time during which a vessel is absent from port and is not fishing for
regulated species under the NE multispecies DAS program.
Pair trawl or pair trawling means to tow a single net between two
vessels for the purpose of, or that is capable of, catching NE
multispecies.
Pelagic hook or longline gear means fishing gear that is not fixed,
nor designed to be fixed, nor anchored to the bottom and that consists
of monofilament main line (as opposed to a cable main line) to which
gangions are attached.
Personal use, with respect to the surf clam or ocean quahog
fishery, means harvest of surf clams or ocean quahogs for use as bait,
for human consumption,
[[Page 34970]]
or for other purposes (not including sale or barter) in amounts not to
exceed 2 bu (106.48 L) per person per fishing trip.
Postmark means independently verifiable evidence of date of
mailing, such as U.S. Postal Service postmark, United Parcel Service
(U.P.S.) or other private carrier postmark, certified mail receipt,
overnight mail receipt, or receipt received upon hand delivery to an
authorized representative of NMFS.
Prior to leaving port, with respect to the call-in notification
system for NE multispecies, means prior to the last dock or mooring in
port from which a vessel departs to engage in fishing, including the
transport of fish to another port.
Processor means a person who receives surf clams or ocean quahogs
for a commercial purpose and removes them from a cage.
Purse seine gear means an encircling net with floats on the top
edge, weights and a purse line on the bottom edge, and associated gear,
or any net designed to be, or capable of being, used in such fashion.
Recreational fishing means fishing that is not intended to, nor
results in the barter, trade, or sale of fish.
Recreational fishing vessel, with respect to the scup fishery,
means any vessel from which no fishing other than recreational fishing
is conducted. Charter and party boats are considered recreational
fishing vessels for purposes of the scup minimum size requirement.
Regional Director means the Director, Northeast Region, NMFS, or a
designee.
Regulated species means the subset of NE multispecies that includes
Atlantic cod, witch flounder, American plaice, yellowtail flounder,
haddock, pollock, winter flounder, windowpane flounder, redfish, and
white hake.
Reporting month means the period of time beginning at 0001 hours
local time on the first day of each calendar month and ending at 2400
hours local time on the last day of each calendar month.
Reporting week means the period of time beginning at 0001 local
time on Sunday and ending at 2400 hours local time the following
Saturday.
Re-rig or re-rigged means physical alteration of the vessel or its
gear in order to transform the vessel into one capable of fishing
commercially for a species in the applicable fishery.
Rigged hooks means hooks that are baited, or only need to be
baited, in order to be fished. Unsecured, unbaited hooks and gangions
are not considered to be rigged.
Rod and reel means a hand-held (including rod holder) fishing rod
with a manually operated reel attached.
Scallop dredge vessel means any fishing vessel, other than a
combination vessel, that uses or is equipped to use scallop dredge
gear.
Scup means Stenotomus chrysops.
Sea Scallop Plan Development Team (PDT) means a team of technical
experts appointed by the NEFMC.
Sea raven means Hemitripterus americanus.
Searobin means any species of the family Triglidae.
Shucking or to shuck means opening or to open a scallop, surf clam,
or ocean quahog and removing the meat or the adductor muscle from the
shell.
Shucking machine means any mechanical device that automatically
removes the meat or the adductor muscle from a scallop, surf clam, or
ocean quahog shell.
Sink gillnet or bottom-tending gillnet means with respect to the NE
multispecies fishery, any gillnet, anchored or otherwise, that is
designed to be, or is fished on or near the bottom in the lower third
of the water column.
Skate means any species of the family Rajidae.
Smooth dogfish means Mustelis canis.
Sorting machine means any mechanical device that automatically
sorts whole scallops by shell height, size, or other physical
characteristics.
Spiny dogfish means Squalus acanthias.
Spot means Leiostomus xanthurus.
Square mesh, with respect to the NE multispecies fishery, means
mesh in which the horizontal bars of the mesh run perpendicular to the
long axis of the net so when the net is placed under a strain the mesh
remains open to a square-like shape. Square mesh can be formed by
hanging diamond mesh ``on the square,'' if the resulting mesh conforms
with the above description of square mesh.
Squid means Loligo pealei or Illex illecebrosus.
Standard tote means a box typically constructed of plastic,
designed to hold 100 lb (45.3 kg) of fish plus ice, and that has a
liquid capacity of 70 L, or a volume of not more than 4,320 cubic in
(2.5 cubic ft or 70.79 cubic cm).
Substantially similar harvesting capacity means the same or less
GRT and vessel length.
Summer flounder means Paralichthys dentatus.
Summer Flounder Monitoring Committee means a committee made up of
staff representatives of the MAFMC, NEFMC, and SAFMC, the NMFS
Northeast Regional Office, the NEFSC, the Southeast Science Center, and
the Commission. The MAFMC Executive Director or a designee chairs the
committee.
Surf clams means Atlantic surf clams of the species Spisula
solidissima.
Swordfish means Xiphias gladius.
Tautog (blackfish) means Tautoga onitas.
Tied up to the dock, with respect to NE multispecies, means to tie-
up at a dock, on a mooring, or in a harbor.
Tilefish means Lopholatilus chamaeleonticeps.
Target total allowable catch (TAC) means the annual domestic
harvest targets for regulated species.
Transfer means to begin to remove, to remove, to pass over the
rail, or to otherwise take away fish from any vessel and move them to
another vessel.
Trawl sweep means the total length of the footrope on a trawl net
that is directly attached to the webbing of a net.
Upon returning to port, for purposes of the call-in notification
system for the NE multispecies fishery, means the first point when a
vessel ties up at a dock or mooring in a port at the end of a fishing
trip.
Vessel length means the length specified on the USCG documentation
for a vessel or on the state registration for a vessel not required to
be documented under title 46 U.S.C., if the state length is verified by
an authorized officer or NMFS official.
Vessel Tracking System (VTS) means a vessel tracking system as set
forth in Sec. 648.9 and approved by NMFS for use by scallop and NE
multispecies vessels, as required by this part.
VTS unit means a device installed on board a vessel used for vessel
tracking and transmitting the vessel's position as required by this
part.
Weakfish means Cynoscion regalis.
Whiting means Merluccius bilinearis.
Sec. 648.3 Relation to other laws.
(a) The relation of this part to other laws is set forth in
Sec. 600.705.
(b) Nothing in these regulations supersedes more restrictive state
management measures for any of the species referenced in Sec. 648.1
and, for Atlantic salmon, more restrictive local management measures.
Sec. 648.4 Vessel permits.
(a) Fishery specific vessel permit information. (1) NE multispecies
vessels. Any vessel of the United States, including a charter or party
boat, must have been issued and have on board a valid multispecies
permit to fish for, possess or land multispecies in or from the EEZ.
Recreational vessels and vessels fishing for NE multispecies
exclusively in state waters are exempt from this requirement.
(i) Limited access multispecies permits--(A) Eligibility. To be
eligible to
[[Page 34971]]
apply for a limited access multispecies permit, as specified in
Sec. 648.82, in 1996 and thereafter, a vessel must have been issued a
limited access multispecies permit for the preceding year, must be
replacing a vessel that was issued a limited access multispecies permit
for the preceding year, or must qualify for a 1996 limited access
multispecies hook-gear permit under this paragraph (a)(1)(i). Vessels
qualifying for 1996 limited access multispecies hook-gear permits are
qualified only for that limited access permit category. A vessel is
eligible for a 1996 limited access multispecies hook-gear permit,
provided:
(1) The vessel was issued a 1995 open access multispecies hook-gear
permit and the owner or operator of the vessel submitted to the
Regional Director, no later than January 26, 1996, fishing log reports
dated between June 1, 1994, and June 1, 1995, when fishing with hook
gear under the open access hook-gear permit, documenting landings of at
least 500 lb (226.8 kg) of NE multispecies finfish, or its equivalent
in numbers of fish; or
(2) The vessel is replacing such a vessel.
(B) Application/renewal restrictions. Owners of vessels must apply
for a limited access multispecies hook-gear permit before September 1,
1996, to receive an automatic mailing of an application to renew their
permit in 1997 and to be assured that their permit application will be
processed within 30 days. Vessel owners applying after December 31,
1996, will be ineligible to apply for an initial limited access
multispecies hook-gear permit. To renew or apply for a limited access
multispecies permit, a completed application must be received by the
Regional Director by the first day of the fishing year for which the
permit is required. Failure to renew a limited access multispecies
permit in any year bars the renewal of the permit in subsequent years.
(C) Qualification restriction. Unless the Regional Director
determines to the contrary, no more than one vessel may qualify, at any
one time, for a limited access permit based on that or another vessel's
fishing and permit history. If more than one vessel owner claims
eligibility for a limited access permit, based on one vessel's fishing
and permit history, the Regional Director will determine who is
entitled to qualify for the permit and the DAS allocation according to
paragraph (a)(1)(i)(D) of this section.
(D) Change in ownership. The fishing and permit history of a vessel
is presumed to transfer with the vessel whenever it is bought, sold, or
otherwise transferred, unless there is a written agreement, signed by
the transferor/seller and transferee/buyer, or other credible written
evidence, verifying that the transferor/seller is retaining the
vessel's fishing and permit history for purposes of replacing the
vessel.
(E) Replacement vessels. To be eligible for a limited access permit
under this section, the replacement vessel must meet the following
criteria and any applicable criteria under paragraph (a)(1)(i)(F) of
this section:
(1) The replacement vessel's horsepower may not exceed by more than
20 percent the horsepower of the vessel that was initially issued a
limited access permit as of the date the initial vessel applied for
such permit.
(2) The replacement vessel's length, GRT, and NT may not exceed by
more than 10 percent the length, GRT, and NT of the vessel that was
initially issued a limited access permit as of the date the initial
vessel applied for such permit. For purposes of this paragraph
(a)(1)(i)(E)(2), a vessel not required to be documented under title 46
U.S.C. will be considered to be 5 NT. For undocumented vessels, GRT
does not apply.
(F) Upgraded vessel. A vessel may be upgraded, whether through
refitting or replacement, and still be eligible for or be eligible to
retain or renew a limited access permit, only if the upgrade complies
with the following:
(1) The vessel's horsepower may be increased, whether through
refitting or replacement, only once. Such an increase may not exceed 20
percent of the horsepower of the vessel initially issued a limited
access permit as of the date the initial vessel applied for such
permit.
(2) The vessel's length, GRT, and NT may be increased, whether
through refitting or replacement, only once. Any increase in any of
these three specifications of vessel size may not exceed 10 percent of
the respective specification of the vessel initially issued a limited
access permit as of the date the initial vessel applied for such
permit. If any of these three specifications is increased, any increase
in the other two must be performed at the same time. This type of
upgrade may be done separately from an engine horsepower upgrade.
(G) Consolidation restriction. Limited access permits and DAS
allocations may not be combined or consolidated.
(H) Appeal of denial of permit. (1) Eligibility. Any applicant
eligible to apply for an initial limited access multispecies hook-gear
permit who is denied such permit may appeal the denial to the Regional
Director within 30 days of the notice of denial. Any such appeal must
be based on one or more of the following grounds, must be in writing,
and must state the grounds for the appeal:
(i) The information used by the Regional Director was based on
mistaken or incorrect data.
(ii) The applicant was prevented by circumstances beyond his/her
control from meeting relevant criteria.
(iii) The applicant has new or additional information.
(2) Appeal review. The Regional Director will appoint a designee
who will make the initial decision on the appeal. The appellant may
request a review of the initial decision by the Regional Director by so
requesting in writing within 30 days of the notice of the initial
decision. If the appellant does not request a review of the initial
decision within 30 days, the initial decision shall become the final
administrative action of the Department of Commerce. Such review will
be conducted by a hearing officer appointed by the Regional Director.
The hearing officer shall make findings and a recommendation to the
Regional Director which shall be advisory only. Upon receiving the
findings and a recommendation, the Regional Director will issue a final
decision on the appeal. The Regional Director's decision is the final
administrative action of the Department of Commerce.
(3) Status of vessels pending appeal. A vessel denied a limited
access multispecies hook-gear permit may fish under the limited access
multispecies hook-gear category, provided that the denial has been
appealed, the appeal is pending, and the vessel has on board a letter
from the Regional Director authorizing the vessel to fish under the
limited access hook-gear category. The Regional Director will issue
such a letter for the pendency of any appeal. Any such decision is the
final administrative action of the Department of Commerce on allowable
fishing activity, pending a final decision on the appeal. The letter of
authorization must be carried on board the vessel. If the appeal is
finally denied, the Regional Director shall send a notice of final
denial to the vessel owner; the authorizing letter becomes invalid 5
days after receipt of the notice of denial.
(I) Limited access permit restrictions. (1) A vessel may be issued
a limited access multispecies permit in only one category during a
fishing year. Vessels may not change limited access multispecies permit
categories during the fishing year, except as provided in
[[Page 34972]]
paragraph (a)(1)(i)(I)(2) of this section. A vessel issued a limited
access multispecies hook-gear permit may not change its limited access
permit category at any time.
(2) The owner of a vessel issued a limited access multispecies
permit may request a change in permit category, unless otherwise
restricted by paragraph (a)(1)(i)(I)(1) of this section. In 1996, a
vessel owner has one opportunity to request a change in permit category
by submitting an application to the Regional Director by August 14,
1996. If a complete application is not submitted by that date, the
vessel must fish only in the DAS program assigned for the remainder of
the 1996 fishing year. Any DAS that a vessel uses prior to a change in
permit category will be counted against its allocation received under
any subsequent permit category. For 1997 and beyond, the owner of a
limited access multispecies vessel eligible to request a change in
permit category must elect a category prior to the start of each
fishing year and will have one opportunity to request a change in
permit category by submitting an application to the Regional Director
within 45 days of issuance of the vessel's permit. After that date, the
vessel must remain in that permit category for the duration of the
fishing year.
(3) With the exception of combination vessels, sea scallop dredge
vessels are not eligible for limited access multispecies permits.
(J) Confirmation of Permit History. Notwithstanding any other
provisions of this part, a person who does not currently own a fishing
vessel, but who has owned a qualifying vessel that has sunk, been
destroyed, or transferred to another person, may apply for and receive
a Confirmation of Permit History (CPH) if the fishing and permit
history of such vessel has been retained lawfully by the applicant. To
be eligible to obtain a CPH, the applicant must show that the
qualifying vessel meets the eligibility requirements, as applicable, in
this part. Issuance of a valid and current CPH preserves the
eligibility of the applicant to apply for or renew a limited access
permit for a replacement vessel based on the qualifying vessel's
fishing and permit history at a subsequent time, subject to the
replacement provisions specified in this section. A CPH must be applied
for and received on an annual basis in order for the applicant to
preserve the fishing rights and limited access eligibility of the
qualifying vessel. If fishing privileges have been assigned or
allocated previously under this part, based on the qualifying vessel's
fishing and permit history, the CPH also preserves such fishing
privileges. Any decision regarding the issuance of a CPH for a
qualifying vessel that has applied for or been issued previously a
limited access permit is a final agency action subject to judicial
review under 5 U.S.C. 704. An application for a CPH must be received by
the Regional Director by the beginning of the fishing year for which it
is required. Information requirements for the CPH application are the
same as those for a limited access permit with any request for
information about the vessel being applicable to the qualifying vessel
that has been sunk, destroyed, or transferred. Vessel permit applicants
who have been issued a CPH and who wish to obtain a vessel permit for a
replacement vessel based upon the previous vessel history may do so
pursuant to this paragraph (a)(1)(i)(J).
(K) Abandonment or voluntary relinquishment of permits. If a
vessel's limited access permit for a particular fishery is voluntarily
relinquished to the Regional Director, or abandoned through failure to
renew or otherwise, no limited access permit for that fishery may be
re-issued or renewed based on that vessel's history or to any vessel
relying on that vessel's history.
(L) Restriction on permit splitting. A limited access multispecies
permit may not be issued to a vessel or its replacement, or remain
valid, if the vessel's permit or fishing history has been used to
qualify another vessel for another Federal fishery.
(ii) Open access permits. Subject to the restrictions in
Sec. 648.88, a U.S. vessel that has not been issued a limited access
multispecies permit is eligible for an open access multispecies
handgear or charter/party permit. A U.S. vessel that has been issued a
valid limited access scallop permit, but that has not been issued a
limited access multispecies permit, is eligible for an open access
scallop multispecies possession limit permit. The owner of a vessel
issued an open access permit may request a different open access permit
category by submitting an application to the Regional Director at any
time.
(2) Atlantic sea scallop vessels--Any vessel of the United States
that fishes for, possesses, or lands Atlantic sea scallops in
quantities greater than 40 lb (18.14 kg) shucked, or 5 bu (176.2 L) of
in-shell scallops per trip, except vessels that fish exclusively in
state waters for scallops, must have been issued and carry on board a
valid scallop permit.
(i) Limited access scallop permits. Any vessel of the United States
that possesses or lands more than 400 lb (181.44 kg) of shucked, or the
equivalent amount of in-shell scallops (50 bu (176.2 L)) per trip,
except vessels that fish exclusively in state waters for scallops, must
have been issued and carry on board a valid limited access scallop
permit.
(A) Eligibility. To be eligible to apply for a limited access
scallop permit, a vessel must have been issued a limited access scallop
permit for the preceding year, or the vessel must be replacing a vessel
that has been issued a limited access scallop permit for the preceding
year.
(B) Application/renewal restrictions. To renew or apply for a
limited access scallop permit, a completed application must be received
by the Regional Director by the first day of the fishing year for which
the permit is required. Failure to renew a limited access scallop
permit in any year bars the renewal of the permit in subsequent years.
(C) Qualification restriction. See paragraph (a)(1)(i)(C) of this
section.
(D) Change in ownership. See paragraph (a)(1)(i)(D) of this
section.
(E) Replacement vessels. See paragraph (a)(1)(i)(E) of this
section.
(F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Percentage ownership restrictions. (1) For any vessel acquired
after March 1, 1994, a vessel owner is not eligible to be issued a
limited access scallop permit for the vessel if the issuance of the
permit will result in the vessel owner, or any person who is a
shareholder or partner of the vessel owner, having an ownership
interest in limited access scallop vessels in excess of 5 percent of
the number of all limited access scallop vessels at the time of permit
application.
(2) Vessel owners who were initially issued a 1994 limited access
scallop permit, or were issued or renewed a limited access scallop
permit for a vessel in 1995 and thereafter in compliance with the
ownership restrictions in paragraph (a)(2)(i)(H)(1) of this section,
are eligible to renew such permit(s), regardless of whether the renewal
of the permits will result in the 5 percent ownership restriction being
exceeded.
(3) Having an ownership interest includes, but is not limited to,
persons who are shareholders in a vessel owned by a corporation, who
are partners (general or limited) to a vessel owner, or who, in any
way, partly own a vessel.
(I) Limited access permit restrictions. A vessel may be issued a
limited access scallop permit in only one category during a fishing
year. The owner of a vessel issued a limited access scallop
[[Page 34973]]
permit must elect a permit category for that vessel prior to the start
of each fishing year and will have one opportunity to request a change
in permit category by submitting an application to the Regional
Director within 45 days of issuance of the vessel's permit. After this
date, the vessel must remain in that permit category for the duration
of the fishing year. Any DAS that a vessel uses prior to a change in
permit category will be counted against its allocation received under
any subsequent permit category.
(J) Confirmation of Permit History. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(ii) General scallop permit. Any vessel of the United States that
is not in possession of a limited access scallop permit, and that
possesses, or lands per trip, more than 40 lb (18.14 kg) and less than
or including 400 lb (181.44 kg) of shucked meats, or the equivalent
amount of in-shell scallops (5 and 50 bu (176.2 L and 176.2 L),
respectively), except vessels that fish exclusively in state waters for
scallops, must carry on board a valid general scallop permit.
(3) Summer flounder vessels. Any vessel of the United States that
fishes for or retains summer flounder in the EEZ must have been issued
and carry on board a valid summer flounder permit, except for vessels
other than party or charter vessels that observe the possession limit
set forth in Sec. 648.105.
(i) Moratorium permits (applicable through 1997). (A) Eligibility.
To be eligible to apply for a moratorium permit to fish for and retain
summer flounder in excess of the possession limit in Sec. 648.105 in
the EEZ, a vessel must have been issued a summer flounder moratorium
permit in a previous year or be replacing a vessel that was issued a
moratorium permit for a previous year.
(B) Application/renewal restriction. No one may apply for a summer
flounder moratorium permit for a vessel after:
(1) The owner retires the vessel from the fishery.
(2) The vessel fails to land any summer flounder at least once
within any 52-consecutive-week period.
(C) Replacement vessels. To be eligible for a moratorium permit,
the replacement vessel must be replacing a vessel of substantially
similar harvesting capacity that is judged unseaworthy by the USCG, for
reasons other than lack of maintenance, or that involuntarily left the
fishery during the moratorium. Both the entering and replaced vessels
must be owned by the same person. Vessel permits issued to vessels that
involuntarily leave the fishery may not be combined to create larger
replacement vessels.
(ii) Party and charter boat permits. Any party or charter boat is
eligible for a permit to fish for summer flounder, other than a summer
flounder moratorium permit, if it is carrying passengers for hire. Such
vessel must observe the possession limits specified in Sec. 648.105.
(iii) Exemption permits. Owners of summer flounder vessels seeking
an exemption from the minimum mesh requirement under the provisions of
Sec. 648.104(b)(1) must apply to the Regional Director under paragraph
(c) of this section at least 7 days prior to the date they wish the
permit to become effective. The applicant must mark ``Exemption Permit
Request'' on the permit application at the top. A permit issued under
this paragraph (a)(3)(iii) does not meet the requirements of paragraph
(a)(3)(i) of this section, but is subject to the other provisions of
this section. Persons issued an exemption permit must surrender it to
the Regional Director at least 1 day prior to the date they wish to
fish not subject to the exemption. The Regional Director may impose
temporary additional procedural requirements by publishing a
notification in the Federal Register.
(4) Surf clam and ocean quahog vessels.--Any vessel of the United
States that fishes for surf clams or ocean quahogs, except vessels
taking surf clams and ocean quahogs for personal use or fishing
exclusively within state waters, must have been issued and carry on
board a valid surf clam or ocean quahog permit, respectively.
(5) Mackerel, squid, and butterfish vessels--Beginning on January
1, 1997, any vessel of the United States, including party or charter
vessels, that fishes for, possesses, or lands mackerel, squid, or
butterfish in or from the EEZ, must have been issued and carry on board
a valid Loligo and butterfish moratorium permit, incidental catch
permit, mackerel and Illex permit or party/charter permit. This
requirement does not apply to recreational fishing vessels. Until
January 1, 1997, vessels that have been issued 1995 Federal mackerel,
squid, and butterfish permits and are not otherwise subject to permit
sanctions due to enforcement proceedings, may fish for, possess, or
land mackerel, squid, or butterfish in or from the EEZ.
(i) Loligo squid and butterfish moratorium permits. (A)
Eligibility. A vessel is eligible for a moratorium permit to fish for
and retain Loligo squid or butterfish in excess of the incidental catch
allowance specified in paragraph (a)(5)(i) of this section, if it meets
any of the following criteria:
(1) The vessel landed and sold at least 20,000 lb (9.07 mt) of
Loligo squid or butterfish in any 30 consecutive day period between
August 13, 1981, and August 13, 1993.
(2) The vessel is replacing such a vessel and meets the
requirements of paragraph (a)(3)(i)(C) of this section.
(B) Application/renewal restrictions. No one may apply for an
initial Loligo squid and butterfish moratorium permit for a vessel
after:
(1) May 2, 1997.
(2) The owner retires the vessel from the fishery.
(C) Replacement vessels. See paragraph (a)(3)(i)(C) of this
section.
(D) Appeal of denial of permit. (1) Any applicant denied a
moratorium permit may appeal to the Regional Director within 30 days of
the notice of denial. Any such appeal shall be in writing. The only
ground for appeal is that the Regional Director erred in concluding
that the vessel did not meet the criteria in paragraph (a)(5)(i)(A)(1)
of this section. The appeal shall set forth the basis for the
applicant's belief that the Regional Director's decision 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 Director.
(3) The hearing officer shall make a recommendation to the Regional
Director.
(4) The decision on the appeal by the Regional Director is the
final decision of the Department of Commerce.
(ii) Incidental catch permits. Any vessel of the United States may
obtain a permit to fish for or retain up to 2,500 lb (1.13 mt) of
Loligo squid or butterfish as an incidental catch in another directed
fishery. The incidental catch allowance may be revised by the Regional
Director, based upon a recommendation by the Council, following the
procedure set forth in Sec. 648.21.
(iii) Mackerel and Illex squid permits. Any vessel of the United
States may obtain a permit under this section to fish for or retain
Atlantic mackerel or Illex squid in or from the EEZ.
(iv) Party and charter boat permits. The owner of any party or
charter boat must obtain a permit to fish for or retain in or from the
EEZ mackerel, squid, or butterfish while carrying passengers for hire.
(b) Permit conditions. Vessel owners who apply for a fishing vessel
permit under this section must agree as a condition of the permit that
the vessel
[[Page 34974]]
and 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 pertinent gear will remain subject to all
applicable state requirements. Except as otherwise provided in this
part, if a requirement of this part and a management measure required
by a state or local law differ, any vessel owner permitted to fish in
the EEZ for any species managed under this part must comply with the
more restrictive requirement. Owners and operators of vessels fishing
under the terms of a summer flounder moratorium permit must also agree,
as a condition of the permit, not to land summer flounder in any state
that the Regional Director has determined no longer has commercial
quota available. A state not receiving an allocation of summer flounder
shall be deemed to have no commercial quota available. Owners or
operators fishing for surf clams and ocean quahogs within waters under
the jurisdiction of any state that requires cage tags are not subject
to any conflicting Federal minimum size or tagging requirements. If a
surf clam and ocean quahog requirement of this part differs from a surf
clam and ocean quahog management measure required by a state that does
not require cage tagging, any vessel owner or operator 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 Director allows an individual
to comply with the less restrictive state minimum size requirement, so
long as fishing is conducted exclusively within state waters.
(c) Vessel permit applications--(1) General. Applicants for a
permit under this section must submit a completed application on an
appropriate form obtained from the Regional Director. The application
must be signed by the owner of the vessel, or the owner's authorized
representative, and be submitted to the Regional Director at least 30
days before the date on which the applicant desires to have the permit
made effective. The Regional Director will notify the applicant of any
deficiency in the application pursuant to this section. Vessel owners
who are eligible to apply for limited access or moratorium permits
under this part shall provide information with the application
sufficient for the Regional Director to determine whether the vessel
meets the applicable eligibility requirements specified in this
section.
(2) Information requirements. (i) An application for a permit
issued under this section, in addition to the information specified in
paragraph (c)(1) of this section, also must contain at least the
following information, and any other information required by the
Regional Director: Vessel name; owner name, mailing address, and
telephone number; USCG documentation number and a copy of the vessel's
current USCG documentation or, for a vessel not required to be
documented under title 46 U.S.C., the vessel's state registration
number and a copy of the current state registration; a copy of the
vessel's current party/charter boat license (if applicable); home port
and principal port of landing; length overall; GRT; NT; engine
horsepower; year the vessel was built; type of construction; type of
propulsion; approximate fish hold capacity; type of fishing gear used
by the vessel; number of crew; number of party or charter passengers
licensed to carry (if applicable); permit category; if the owner is a
corporation, a copy of the current Certificate of Incorporation or
other corporate papers showing the date of incorporation and the names
of the current officers of the corporation, and the names and addresses
of all shareholders owning 25 percent or more of the corporation's
shares; if the owner is a partnership, a copy of the current
Partnership Agreement and the names and addresses of all partners; if
there is more than one owner, names of all owners having a 25-percent
interest or more; the name and signature of the owner or the owner's
authorized representative; and permit number of any current or, if
expired, previous Federal fishery permit issued to the vessel.
(ii) An application for an initial limited access multispecies
hook-gear permit must also contain the following information:
(A) If the engine horsepower was changed or a contract to change
the engine horsepower had been entered into prior to May 1, 1996, such
that it is different from that stated in the vessel's most recent
application for a Federal fisheries permit before May 1, 1996,
sufficient documentation to ascertain the different engine horsepower.
However, the engine replacement must be completed within 1 year of the
date of when the contract for the replacement engine was signed.
(B) If the length, GRT, or NT was changed or a contract to change
the length, GRT, or NT been entered into prior to May 1, 1996, such
that it is different from that stated in the vessel's most recent
application for a Federal fisheries permit, sufficient documentation to
ascertain the different length, GRT, or NT. However, the upgrade must
be completed within 1 year from the date when the contract for the
upgrade was signed.
(iii) An application for a multispecies permit must also contain a
copy of the vendor installation receipt from a NMFS certified VTS
vendor as described in Sec. 648.9, if the vessel has been issued a
limited access multispecies Combination Vessel permit or individual DAS
category permit, or if the applicant elects to use a VTS unit, although
not required.
(iv) An application for a limited access scallop permit must also
contain the following information:
(A) For every person named by applicants for limited access scallop
permits pursuant to paragraph (c)(2)(i) of this section, the names of
all other vessels in which that person has an ownership interest and
for which a limited access scallop permit has been issued or applied
for.
(B) If applying for full-time or part-time limited access scallop
permit, or if opting to use a VTS unit, though not required, a copy of
the vendor installation receipt from a NMFS-approved VTS vendor as
described in Sec. 648.9.
(C) If applying to fish under the small dredge program set forth
under Sec. 648.51(e), an annual declaration into the program.
(v) An application for a surf clam and ocean quahog permit must
also contain the pump horsepower.
(d) Fees. The Regional Director may charge a fee to recover
administrative expenses of issuing a permit required under this
section. The amount of the fee is calculated in accordance with the
procedures of the NOAA Finance Handbook, available from the Regional
Director, for determining administrative costs of each special product
or service. The fee may not exceed such costs and is specified with
each application form. The appropriate fee must accompany each
application; if it does not, the application will be considered
incomplete for purposes of paragraph (e) of this section. Any fee paid
by an insufficiently funded commercial instrument shall render any
permit issued on the basis thereof null and void.
(e) Issuance. (1) Except as provided in subpart D of 15 CFR part
904, the
[[Page 34975]]
Regional Director shall issue a permit within 30 days of receipt of the
application, unless the application is deemed incomplete for the
following reasons:
(i) The applicant has failed to submit a complete application. An
application is complete when all requested forms, information,
documentation, and fees, if applicable, have been received and the
applicant has submitted all applicable reports specified in Sec. 648.7;
(ii) The application was not received by the Regional Director by
the applicable deadline set forth in this section;
(iii) The applicant and applicant's vessel failed to meet all
applicable eligibility requirements set forth in this section;
(iv) The applicant applying for a limited access multispecies
combination vessel or individual DAS permit, a full-time or part-time
limited access scallop permit, or electing to use a VTS, has failed to
meet all of the VTS requirements specified in Secs. 648.9 and 648.10;
or
(v) The applicant has failed to meet any other application
requirements stated in this part.
(2) Incomplete applications. Upon receipt of an incomplete or
improperly executed application for any permit under this part, the
Regional Director shall notify the applicant of the deficiency in the
application. If the applicant fails to correct the deficiency within 30
days following the date of notification, the application will be
considered abandoned.
(f) Change in permit information. Any change in the information
specified in paragraph (c)(2) of this section must be submitted by the
applicant in writing to the Regional Director within 15 days of the
change, or the permit is void.
(g) Expiration. A permit expires upon the renewal date specified in
the permit.
(h) Duration. A permit will continue in effect unless it is
revoked, suspended, or modified under 15 CFR part 904, or otherwise
expires, or ownership changes, or the applicant has failed to report
any change in the information on the permit application to the Regional
Director as specified in paragraph (f) of this section. However, the
Regional Director may authorize the continuation of a permit if the new
owner so requests. Applications for permit continuations must be
addressed to the Regional Director.
(i) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(j) Reissuance. Permits may be issued by the Regional Director when
requested in writing by the owner, stating the need for reissuance, the
name of the vessel, and the fishing permit number assigned. An
application for a reissued permit will not be considered a new
application. The fee for a reissued permit shall be the same as for an
initial permit.
(k) Transfer. Permits issued under this part are not transferable
or assignable. A permit will be valid only for the fishing vessel and
owner for which it is issued.
(l) Display. The permit must be carried, at all times, on board the
vessel for which it is issued, and must be maintained in legible
condition. The permit shall be subject to inspection upon request by
any authorized official.
(m) Sanctions. The Assistant Administrator may suspend, revoke, or
modify, any permit issued or sought under this section. Procedures
governing enforcement-related permit sanctions or denials are found at
subpart D of 15 CFR part 904.
Sec. 648.5 Operator permits.
(a) General. Any operator of a vessel fishing for or possessing sea
scallops in excess of 40 lb (18.1 kg), NE multispecies, Atlantic
mackerel, squid or butterfish harvested in or from the EEZ, or issued a
permit for these species under this part, must have and carry on board
a valid operator permit issued under this section. An operator permit
issued pursuant to part 649 shall satisfy the permitting requirement of
this section. This requirement does not apply to operators of
recreational vessels.
(b) Operator permit application. Applicants for a permit under this
section must submit a completed application on an appropriate form
provided by the Regional Director. The application must be signed by
the applicant and submitted to the Regional Director at least 30 days
before the date upon which the applicant desires to have the permit
made effective. The Regional Director will notify the applicant of any
deficiency in the application, pursuant to this section.
(c) Condition. Vessel operators who apply for an operator's permit
under this section must agree as a condition of this permit that the
operator and vessel's fishing, catch, crew size, 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 while fishing in the EEZ or on board a vessel for which a permit
is issued under Sec. 648.4, unless exempted from such requirements
under Sec. 648.12. The vessel and all such fishing, catch, and gear
will remain subject to all applicable state or local requirements.
Further, such operators must agree, as a condition of this permit,
that, if the permit is suspended or revoked pursuant to 15 CFR part
904, the operator cannot be aboard any fishing vessel issued a Federal
fisheries permit or any vessel subject to Federal fishing regulations
while the vessel is at sea or engaged in offloading. If a requirement
of this part and a management measure required by state or local law
differ, any operator issued a permit under this part must comply with
the more restrictive requirement.
(d) Information requirements. An applicant must provide at least
all the following information and any other information required by the
Regional Director: Name, mailing address, and telephone number; date of
birth; hair color; eye color; height; weight; social security number
(optional); and signature of the applicant. The applicant must also
provide two recent (no more than 1 year old), color, passport-size
photographs.
(e) Fees. Same as Sec. 648.4(d).
(f) Issuance. Except as provided in subpart D of 15 CFR part 904,
the Regional Director shall issue an operator's permit within 30 days
of receipt of a completed application, if the criteria specified herein
are met. Upon receipt of an incomplete or improperly executed
application, the Regional Director will notify the applicant of the
deficiency in the application. If the applicant fails to correct the
deficiency within 30 days following the date of notification, the
application will be considered abandoned.
(g) Expiration. Same as Sec. 648.4(g).
(h) Duration. A permit is valid until it is revoked, suspended or
modified under 15 CFR part 904, or otherwise expires, or the applicant
has failed to report a change in the information on the permit
application to the Regional Director as specified in paragraph (k) of
this section.
(i) Reissuance. Reissued permits, for otherwise valid permits, may
be issued by the Regional Director when requested in writing by the
applicant, stating the need for reissuance and the Federal operator
permit number assigned. An applicant for a reissued permit must also
provide two recent, color, passport-size photos of the applicant. An
application for a reissued permit will not be considered a new
application. An appropriate fee may be charged.
(j) Transfer. Permits issued under this part are not transferable
or assignable. A permit is valid only for the person to whom it is
issued.
[[Page 34976]]
(k) Change in permit application information. Notice of a change in
the permit holder's name, address, or telephone number must be
submitted in writing to, and received by, the Regional Director within
15 days of the change in information. If written notice of the change
in information is not received by the Regional Director within 15 days,
the permit is void.
(l) Alteration. Same as Sec. 648.4(i).
(m) Display. Any permit issued under this part must be maintained
in legible condition and displayed for inspection upon request by any
authorized officer or NMFS official.
(n) Sanctions. Vessel operators with suspended or revoked permits
may not be aboard a federally permitted fishing vessel in any capacity
while the vessel is at sea or engaged in offloading. Procedures
governing enforcement related permit sanctions and denials are found at
subpart D of 15 CFR part 904.
(o) Vessel owner responsibility. Vessel owners are responsible for
ensuring that their vessels are operated by an individual with a valid
operator's permit issued under this section.
Sec. 648.6 Dealer/processor permits.
(a) General. All NE multispecies, scallop, summer flounder, surf
clam and ocean quahog dealers, and surf clam and ocean quahog
processors must have been issued and have in their possession a permit
for such species issued under this section. As of January 1, 1997, all
mackerel, squid, and butterfish dealers must have been issued and have
in their possession a valid dealers permit for those species.
(b) Dealer/processor permit applications. Same as Sec. 648.5(b).
(c) Information requirements. Applications must contain at least
the following information, and any other information required by the
Regional Director: Company name, place(s) of business (principal place
of business if applying for a surf clam and ocean quahog permit),
mailing address(es) and telephone number(s), owner's name, dealer
permit number (if a renewal), name and signature of the person
responsible for the truth and accuracy of the application, a copy of
the certificate of incorporation if the business is a corporation, and
a copy of the Partnership Agreement and the names and addresses of all
partners if the business is a partnership.
(d) Fees. Same as Sec. 648.4(d).
(e) Issuance. Except as provided in subpart D of 15 CFR part 904,
the Regional Director will issue a permit at any time during the
fishing year to an applicant, unless the applicant fails to submit a
completed application. An application is complete when all requested
forms, information, and documentation have been received and the
applicant has submitted all applicable reports specified in Sec. 648.7
during the 12 months immediately preceding the application. Upon
receipt of an incomplete or improperly executed application, the
Regional Director will notify the applicant of the deficiency in the
application. If the applicant fails to correct the deficiency within 30
days following the date of notification, the application will be
considered abandoned.
(f) Expiration. Same as Sec. 648.4(g).
(g) Duration. A permit is valid until it is revoked, suspended, or
modified under 15 CFR part 904, or otherwise expires, or ownership
changes, or the applicant has failed to report any change in the
information on the permit application to the Regional Director as
required by paragraph (j) of this section.
(h) Reissuance. Reissued permits, for otherwise valid permits, may
be issued by the Regional Director when requested in writing by the
applicant, stating the need for reissuance and the Federal dealer
permit number assigned. An application for a reissued permit will not
be considered a new application. An appropriate fee may be charged.
(i) Transfer. Permits issued under this part are not transferable
or assignable. A permit is valid only for the person to whom, or other
business entity to which, it is issued.
(j) Change in application information. Same as Sec. 648.5(k).
(k) Alteration. Same as Sec. 648.4(i).
(l) Display. Same as Sec. 648.5(m).
(m) Federal versus state requirements. If a requirement of this
part differs from a fisheries management measure required by state law,
any dealer issued a Federal dealer permit must comply with the more
restrictive requirement.
(n) Sanctions. Same as Sec. 648.4(m).
Sec. 648.7 Recordkeeping and reporting requirements.
(a) Dealers--(1) Weekly report. Federally-permitted dealers must
send by mail to the Regional Director, or official designee, on a
weekly basis on forms supplied by or approved by the Regional Director
a report of fish purchases, except that surf clam and ocean quahog
dealers or processors are required only to report surf clam and ocean
quahog purchases. If authorized in writing by the Regional Director,
dealers may submit reports electronically or through other media. The
following information, and any other information required by the
Regional Director, must be provided in the report:
(i) Summer flounder, scallop, NE multispecies and squid, mackerel
and butterfish dealers must provide: Name and mailing address of
dealer, dealer number, name and permit number of the vessels from which
fish are landed or received, dates of purchases, pounds by species,
price by species, and port landed. If no fish are purchased during the
week, a report so stating must be submitted. All report forms must be
signed by the dealer or other authorized individual.
(ii) Surf clam and ocean quahog processors and dealers must
provide: Date of purchase or receipt; name, permit number and mailing
address; number of bushels by species; cage tag numbers; allocation
permit number; vessel name and permit number; price per bushel by
species. Dealers must also report disposition of surf clams or ocean
quahogs, including name and permit number of recipients. Processors
must also report size distribution and meat yield per bushel by
species.
(2) Annual report. All persons required to submit reports under
paragraph (a)(1) of this section are required to submit the following
information on an annual basis, on forms supplied by the Regional
Director:
(i) Summer flounder, scallop, NE multispecies, and squid, mackerel
and butterfish dealers must complete the ``Employment Data'' section of
the Annual Processed Products Reports; completion of the other sections
of that form is voluntary. Reports must be submitted to the address
supplied by the Regional Director.
(ii) Surf clam and ocean quahog processors and dealers must provide
the average number of processing plant employees during each month of
the year just ended; average number of employees engaged in production
of processed surf clam and ocean quahog products, by species, during
each month of the year just ended; plant capacity to process surf clam
and ocean quahog shellstock, or to process surf clam and ocean quahog
meats into finished products, by species; an estimate, for the next
year, of such processing capacities; and total payroll for surf clam
and ocean quahog processing, by month. If the plant processing
capacities described in this paragraph (a)(2)(ii) change more than 10
percent during any year, the processor shall promptly notify the
Regional Director.
(b) Vessel owners--(1) Fishing Vessel Log Reports--(i) Owners of
vessels issued summer flounder moratorium, scallop, multispecies, or
mackerel, squid, and butterfish permits. The owner or operator of any
vessel issued a vessel permit for summer flounder
[[Page 34977]]
moratorium, scallops, NE multispecies, or, as of January 1, 1997, a
mackerel, squid, or butterfish vessel permit, must maintain on board
the vessel, and submit, an accurate daily fishing log report for all
fishing trips, regardless of species fished for or taken, on forms
supplied by or approved by the Regional Director. If authorized in
writing by the Regional Director, vessel owners or operators may submit
reports electronically, for example by using a VTS or other media. At
least the following information, and any other information required by
the Regional Director, must be provided: Vessel name; USCG
documentation number (or state registration number, if undocumented);
permit number; date/time sailed; date/time landed; trip type; number of
crew; number of anglers (if a charter or party boat); gear fished;
quantity and size of gear; mesh/ring size; chart area fished; average
depth; latitude/longitude (or loran station and bearings); total hauls
per area fished; average tow time duration; pounds, by species, of all
species landed or discarded; dealer permit number; dealer name; date
sold; port and state landed; and vessel operator's name, signature, and
operator permit number (if applicable).
(ii) Surf clam and ocean quahog vessel owners and operators. The
owner or operator of any vessel conducting any surf clam and ocean
quahog fishing operations, except those conducted exclusively in waters
of a state that requires cage tags or when he/she has surrendered the
surf clam and ocean quahog fishing vessel permit, shall maintain, on
board the vessel, an accurate daily fishing log for each fishing trip,
on forms supplied by the Regional Director, showing at least: Name and
permit number of the vessel, total amount in bushels of each species
taken, date(s) caught, time at sea, duration of fishing time, locality
fished, crew size, crew share by percentage, landing port, date sold,
price per bushel, buyer, tag numbers from cages used, quantity of surf
clams and ocean quahogs discarded, and allocation permit number.
(iii) Owners of party and charter boats. The owner of any party or
charter boat issued a summer flounder permit other than a moratorium
permit and carrying passengers for hire shall maintain on board the
vessel, and submit, an accurate daily fishing log report for each
charter or party fishing trip that lands summer flounder, unless such a
vessel is also issued a summer flounder moratorium permit, a sea
scallop permit, a multispecies permit, or, as of January 1, 1997, a
mackerel, squid or butterfish permit, in which case a fishing log
report is required for each trip regardless of species retained. If
authorized in writing by the Regional Director, vessel owners may
submit reports electronically, for example, by using a VTS or other
media. At least the following information, and any other information
required by the Regional Director, must be provided: Vessel name; USGC
documentation number (or state registration number, if undocumented);
permit number; date/time sailed; date/time landed; trip type; number of
crew; number of anglers; gear fished; quantity and size of gear; chart
area fished; average depth; latitude/longitude (or loran station and
bearings); average tow time duration; count, by species, of all species
landed or discarded; port and state landed; and vessel operator's name,
signature, and operator permit number (if applicable).
(c) When to fill out a log report. Log reports required by
paragraph (b)(1)(i) of this section must be filled out, except for
information required but not yet ascertainable, before offloading or
landing has begun. All information must be filled out before starting
the next fishing trip. Log reports required by paragraph (b)(1)(ii) of
this section must be filled out before landing any surf clams or ocean
quahogs. Log reports required by paragraph (b)(1)(iii) of this section
must be filled out, except for information required but not yet
ascertainable, before offloading or landing has begun. All information
required in paragraph (b)(1)(iii) of this section must be filled out
for each fishing trip by the end of each fishing trip.
(d) Inspection. All persons required to submit reports under this
section, upon the request of an authorized officer, or by an employee
of NMFS designated by the Regional Director to make such inspections,
must make immediately available for inspection copies of the required
reports that have been submitted, or should have been submitted, and
the records upon which the reports were based. At any time during or
after a trip, owners and operators must make immediately available for
inspection the fishing log reports currently in use, or to be
submitted.
(e) Record retention. Copies of reports, and records upon which the
reports were based, must be retained and be available for review for 1
year after the date of the last entry on the report. Copies of fishing
log reports must be retained and available for review for 1 year after
the date of the last entry on the log. Dealers must retain required
reports and records at their principal place of business.
(f) Submitting reports--(1) Dealer or processor reports. Weekly
dealer or processor reports must be received or postmarked, if mailed,
within 3 days after the end of each reporting week. Each dealer will be
sent forms and instructions, including the address to which to submit
reports, shortly after receipt of a dealer permit. If no fish or fish
product was purchased during a week, a report so stating must be
submitted. Annual reports for a calendar year must be submitted to NMFS
Statistics, and must be postmarked by February 10 of the following
year. Contact the Regional Director for the address of NMFS Statistics.
(2) Fishing vessel log reports. Fishing log reports must be
received or postmarked, if mailed, within 15 days after the end of the
reporting month. Each owner will be sent forms and instructions,
including the address to which to submit reports, shortly after receipt
of a Federal fisheries permit. If no fishing trip is made during a
month, a report so stating must be submitted. Annual reports must be
submitted to NMFS Statistics and must be postmarked by February 10 of
the following year.
(3) At-sea purchasers, receivers, or processors. All persons
purchasing, receiving, or processing any summer flounder or mackerel,
squid, and butterfish at sea for landing at any port of the United
States must submit information identical to that required by paragraph
(a)(1) or (a)(2) of this section, as applicable, and provide those
reports to the Regional Director or designee on the same frequency
basis.
Sec. 648.8 Vessel identification.
(a) Vessel name and official number. Each fishing vessel subject to
this part and over 25 ft (7.6 m) in registered length must:
(1) Affix permanently its name on the port and starboard sides of
the bow and, if possible, on its stern.
(2) Display its official number on the port and starboard sides of
the deckhouse or hull, and on an appropriate weather deck so as to be
clearly visible from enforcement vessels and aircraft. The official
number is the USCG documentation number or the vessel's state
registration number for vessels not required to be documented under
title 46 U.S.C.
(b) Numerals. Except as provided in paragraph (d) of this section,
the official number must be displayed in block arabic numerals in
contrasting color at least 18 inches (45.7 cm) in height for fishing
vessels over 65 ft (19.8 m) in
[[Page 34978]]
registered length, and at least 10 inches (25.4 cm) in height for all
other vessels over 25 ft (7.6 m) in registered length. The registered
length of a vessel, for purposes of this section, is that registered
length set forth in USCG or state records.
(c) Duties of owner. The owner of each vessel subject to this part
shall ensure that--
(1) The vessel's name and official number are kept clearly legible
and in good repair.
(2) No part of the vessel, its rigging, its fishing gear, or any
other object obstructs the view of the official number from any
enforcement vessel or aircraft.
(d) Non-permanent marking. Vessels carrying recreational fishing
parties on a per capita basis or by charter must use markings that meet
the above requirements, except for the requirement that they be affixed
permanently to the vessel. The non-permanent markings must be displayed
in conformity with the above requirements.
(e) New Jersey surf clam or ocean quahog vessels. Instead of
complying with paragraph (a) of this section, surf clam or ocean quahog
vessels licensed under New Jersey law may use the appropriate vessel
identification markings established by that state.
Sec. 648.9 VTS requirements.
(a) Approval. The Regional Director will annually approve VTSs that
meet the minimum performance criteria specified in paragraph (b) of
this section. Any changes to the performance criteria will be published
annually in the Federal Register and a list of approved VTSs will be
published in the Federal Register upon addition or deletion of a VTS
from the list. In the event that a VTS is deleted from the list, vessel
owners that purchased a VTS unit that is part of that VTS prior to
publication of the revised list will be considered to be in compliance
with the requirement to have an approved unit, unless otherwise
notified by the Regional Director.
(b) Minimum VTS performance criteria. The basic required features
of the VTS are as follows:
(1) The VTS shall be tamper proof, i.e., shall not permit the input
of false positions; furthermore, if a system uses satellites to
determine position, satellite selection should be automatic to provide
an optimal fix and should not be capable of being manually overridden
by any person aboard a fishing vessel or by the vessel owner.
(2) The VTS shall be fully automatic and operational at all times,
regardless of weather and environmental conditions.
(3) The VTS shall be capable of tracking vessels in all U.S. waters
in the Atlantic Ocean from the shoreline of each coastal state to a
line 215 nm offshore and shall provide position accuracy to within 400
m (1,300 ft).
(4) The VTS shall be capable of transmitting and storing
information including vessel identification, date, time, and latitude/
longitude.
(5) The VTS shall provide accurate hourly position transmissions
every day of the year. In addition, the VTS shall allow polling of
individual vessels or any set of vessels at any time and receive
position reports in real time. For the purposes of this specification,
``real time'' shall constitute data that reflect a delay of 15 minutes
or less between the displayed information and the vessel's actual
position.
(6) The VTS shall be capable of providing network message
communications between the vessel and shore. The VTS shall allow NMFS
to initiate communications or data transfer at any time.
(7) The VTS vendor shall be capable of transmitting position data
to a NMFS-designated computer system via a modem at a minimum speed of
9600 baud. Transmission shall be in ASCII text in a file format
acceptable to NMFS.
(8) The VTS shall be capable of providing vessel locations relative
to international boundaries and fishery management areas.
(9) The VTS vendor shall be capable of archiving vessel position
histories for a minimum of 1 year and providing transmission to NMFS of
specified portions of archived data in response to NMFS requests and in
a variety of media (tape, floppy, etc.).
(c) Operating requirements. All required VTS units must transmit a
signal indicating the vessel's accurate position at least every hour,
24 hours a day, throughout the year.
(d) Presumption. If a VTS unit fails to transmit an hourly signal
of a vessel's position, the vessel shall be deemed to have incurred a
DAS, or fraction thereof, for as long as the unit fails to transmit a
signal, unless a preponderance of evidence shows that the failure to
transmit was due to an unavoidable malfunction or disruption of the
transmission that occurred while the vessel was declared out of the
scallop fishery or NE multispecies fishery, as applicable, or was not
at sea.
(e) Replacement. Should a VTS unit require replacement, a vessel
owner must submit documentation to the Regional Director, within 3 days
of installation and prior to the vessel's next trip, verifying that the
new VTS unit is an operational approved system as described under
paragraph (a)(1) of this section.
(f) Access. As a condition to obtaining a limited access scallop or
multispecies permit, all vessel owners must allow NMFS, the USCG, and
their authorized officers or designees access to the vessel's DAS and
location data obtained from its VTS at the time of or after its
transmission to the vendor or receiver, as the case may be.
(g) Tampering. Tampering with a VTS, a VTS unit, or a VTS signal,
is prohibited. Tampering includes any activity that is likely to affect
the unit's ability to operate properly, signal, or accuracy of
computing the vessel's position fix.
Sec. 648.10 DAS notification requirements.
(a) VTS Demarcation Line. The VTS Demarcation Line is defined by
straight lines connecting the following coordinates in the order stated
(a copy of a map showing the line is available from the Regional
Director upon request):
VTS Demarcation Line
------------------------------------------------------------------------
Description N. Long. W. Lat.
------------------------------------------------------------------------
1. Northern terminus point 45 deg.03' 66 deg.47'
(Canada landmass).
2. A point east of West Quoddy 44 deg.48.9' 66 deg.56.1'
Head Light.
3. A point east of Little River 44 deg.39.0' 67 deg.10.5'
Light.
4. Whistle Buoy ``8BI'' (SSE of 44 deg.13.6' 68 deg.10.8'
Baker Island).
5. Isle au Haut Light........... 44 deg.03.9' 68 deg.39.1'
6. Pemaquid Point Light......... 43 deg.50.2' 69 deg.30.4'
7. A point west of Halfway Rock. 43 deg.38.0' 70 deg.05.0'
8. A point east of Cape Neddick 43 deg.09.9' 70 deg.34.5'
Light.
[[Page 34979]]
9. Merrimack River Entrance 42 deg.48.6' 70 deg.47.1'
``MR'' Whistle Buoy.
10. Halibut Point Gong Buoy 42 deg.42.0' 70 deg.37.5'
``1AHP''.
11. Connecting reference point.. 42 deg.40' 70 deg.30'
12. Whistle Buoy ``2'' off 42 deg.34.3' 70 deg.39.8'
Eastern Point.
13. The Graves Light (Boston)... 42 deg.21.9' 70 deg.52.2'
14. Minots Ledge Light.......... 42 deg.16.2' 70 deg.45.6'
15. Farnham Rock Lighted Bell 42 deg.05.6' 70 deg.36.5'
Buoy.
16. Cape Cod Canal Bell Buoy 41 deg.48.9' 70 deg.27.7'
``CC''.
17. A point inside Cape Cod Bay. 41 deg.48.9' 70 deg.05'
18. Race Point Lighted Bell Buoy 42 deg.04.9' 70 deg.16.8'
``RP''.
19. Peaked Hill Bar Whistle Buoy 42 deg.07.0' 70 deg.06.2'
``2PH''.
20. Connecting point, off Nauset 41 deg.50' 69 deg.53'
Light.
21. A point south of Chatham 41 deg.38' 69 deg.55.2'
``C'' Whistle Buoy.
22. A point in eastern Vineyard 41 deg.30' 70 deg.33'
Sound.
23. A point east of Martha's 41 deg.22.2' 70 deg.24.6'
Vineyard.
24. A point east of Great Pt. 41 deg.23.4' 69 deg.57'
Light, Nantucket.
25. A point SE of Sankaty Head, 41 deg.13' 69 deg.57'
Nantucket.
26. A point west of Nantucket... 41 deg.15.6' 70 deg.25.2'
27. Squibnocket Lighted Bell 41 deg.15.7' 70 deg.46.3'
Buoy ``1''.
28. Wilbur Point (on Sconticut 41 deg.35.2' 70 deg.51.2'
Neck).
29. Mishaum Point (on Smith 41 deg.31.0' 70 deg.57.2'
Neck).
30. Sakonnet Entrance Lighted 41 deg.25.7' 71 deg.13.4'
Whistle Buoy ``SR''.
31. Point Judith Lighted Whistle 41 deg.19.3' 71 deg.28.6'
Buoy ``2''.
32. A point off Block Island 41 deg.08.2' 71 deg.32.1'
Southeast Light.
33. Shinnecock Inlet Lighted 40 deg.49.0' 72 deg.28.6'
Whistle Buoy ``SH''.
34. Scotland Horn Buoy ``S'', 40 deg.26.5' 73 deg.55.0'
off Sandy Hook (NJ).
35. Barnegat Lighted Gong Buoy 39 deg.45.5' 73 deg.59.5'
``2''.
36. A point east of Atlantic 39 deg.21.9' 74 deg.22.7'
City Light.
37. A point east of Hereford 39 deg.00.4' 74 deg.46'
Inlet Light.
38. A point east of Cape 38 deg.47' 75 deg.04'
Henlopen Light.
39. A point east of Fenwick 38 deg.27.1' 75 deg.02'
Island Light.
40. A point NE of Assateague 38 deg.00' 75 deg.13'
Island (VA).
41. Wachapreague Inlet Lighted 37 deg.35.0' 75 deg.33.7'
Whistle Buoy ``A''.
42. A point NE of Cape Henry.... 36 deg.55.6' 75 deg.58.5'
43. A point east of Currituck 36 deg.22.6' 75 deg.48'
Beach Light.
44. Oregon Inlet (NC) Whistle 35 deg.48.5' 75 deg.30'
Buoy.
45. Wimble Shoals, east of 35 deg.36' 75 deg.26'
Chicamacomico.
46. A point SE of Cape Hatteras 35 deg.12.5' 75 deg.30'
Light.
47. Hatteras Inlet Entrance Buoy 35 deg.10' 75 deg.46'
``HI''.
48. Ocracoke Inlet Whistle Buoy 35 deg.01.5' 76 deg.00.5'
``OC''.
49. A point east of Cape Lookout 34 deg.36.5' 76 deg.30'
Light.
50. Southern terminus point..... 34 deg.35' 76 deg.41'
------------------------------------------------------------------------
(b) VTS notification. Multispecies vessels issued an individual DAS
or combination permit, scallop vessels issued a full-time or part-time
limited access scallop permit, or scallop vessels fishing under the
small dredge program specified in Sec. 648.51(e), or vessels issued a
limited access multispecies or scallop permit and whose owners elect to
fish under the VTS notification of this paragraph (b), unless otherwise
authorized or required by the Regional Director under Sec. 648.9(a),
must have installed on board an operational VTS unit that meets the
minimum performance criteria specified in Sec. 648.9(b), or as modified
as specified in Sec. 648.9(a). Owners of such vessels must provide
documentation to the Regional Director at the time of application for a
limited access permit that the vessel has an operational VTS unit that
meets the minimum performance criteria specified in Sec. 648.9(b), or
as modified as specified in Sec. 648.9(a). If a vessel has already been
issued a limited access permit without providing such documentation,
the Regional Director shall allow at least 30 days for the vessel to
instal an operational VTS unit that meets the minimum performance
criteria specified in Sec. 648.9(b), or as modified as specified in
Sec. 648.9(a), and to provide documentation of such installation to the
Regional Director. The VTS unit shall be subject to the following
requirements and presumption:
(1) Multispecies vessels issued an individual DAS or combination
permit, scallop vessels issued a full-time or part-time limited access
scallop permit, or vessels issued a limited access multispecies or
scallop permit and whose owners elect to fish under the VTS
notification of this paragraph (b), that have crossed the VTS
Demarcation Line specified under paragraph (a) of this section, are
deemed to be fishing under the DAS program, unless the vessel's owner
or authorized representative declares the vessel out of the scallop or
NE multispecies fishery, as applicable, for a specific time period by
notifying the Regional Director through the VTS prior to the vessel
leaving port.
(2) Part-time scallop vessels may not fish in the DAS allocation
program unless they declare into the scallop fishery for a specific
time period by notifying the Regional Director through the VTS.
(3) Notification that the vessel is not under the DAS program must
be received prior to the vessel leaving port. A change in status of a
vessel cannot be made after the vessel leaves port or before it returns
to port on any fishing trip.
(4) DAS for vessels that are under the VTS notification
requirements of this paragraph (b) are counted beginning
[[Page 34980]]
with the first hourly location signal received showing that the vessel
crossed the VTS Demarcation Line leaving port. A trip concludes and
accrual of DAS ends with the first hourly location signal received
showing that the vessel crossed the VTS Demarcation Line upon its
return to port.
(5) If the VTS is not available or not functional, and if
authorized by the Regional Director, a vessel owner must provide the
notifications required by paragraphs (b)(1), (2), and (3) of this
section by using the call-in notification system described under
paragraph (c) of this section, instead of using the VTS system.
(c) Call-in notification. Owners of vessels issued limited access
multispecies permits who are participating in a DAS program and who are
not required to provide notification using a VTS, owners of scallop
vessels qualifying for a DAS allocation under the occasional category
and who have not elected to fish under the VTS notification
requirements of paragraph (b) of this section, and vessels fishing
pending an appeal as specified in Sec. 648.4(a)(1)(i)(H)(3) are subject
to the following requirements:
(1) Prior to the vessel leaving port, the vessel owner or
authorized representative must notify the Regional Director that the
vessel will be participating in the DAS program or the charter/party
fishery by calling the Regional Director and providing the following
information: Owner and caller name and phone number, vessel's name and
permit number, type of trip to be taken, and that the vessel is
beginning a trip. For NE multispecies vessels, the port of departure
also must be specified. A DAS or a vessel's participation in the
charter/party fishery begins once the call has been received and a
confirmation number is given by the Regional Director.
(2) The confirmation number given by the Regional Director must be
kept on board for the duration of the trip and must be provided to an
authorized officer upon request.
(3) Upon the vessel's return to port, the vessel owner or owner's
representative must call the Regional Director and notify him/her that
the trip has ended by providing the following information: Owner and
caller name and phone number, vessel's name and permit number, and that
the vessel has ended a trip. For NE multispecies vessels, the port of
landing also must be specified. A DAS ends for all but vessels fishing
with gillnet gear when the call has been received and confirmation
given by the Regional Director. For vessels fishing with gillnet gear,
DAS continue to accrue as long as the vessel's gillnet gear remains in
the water. A trip concludes and accrual of DAS ends for a gillnet
vessel when the vessel returns to port with all of its gillnet gear
that was in the water on board, the phone call has been received, and
confirmation has been given by the Regional Director.
(4) The Regional Director will furnish a phone number for DAS
notification call-ins upon request.
(5) Any vessel that possesses or lands per trip more than 400 lb
(181.44 kg) of scallops, and any vessel issued a limited access
multispecies permit subject to the DAS program and call-in requirement,
that possesses or lands regulated species, except as provided in
Sec. 648.83, shall be deemed in the DAS program for purposes of
counting DAS, regardless of whether the vessel's owner or authorized
representative provided adequate notification as required by paragraph
(b) of this section.
(d) Temporary authorization for use of the call-in system. The
Regional Director may authorize or require, on a temporary basis, the
use of the call-in system of notification specified in paragraph (c) of
this section. If use of the call-in system is authorized or required,
the Regional Director shall notify affected permit holders through a
letter, notification in the Federal Register, or other appropriate
means.
(e) Charter/party multispecies vessels. Charter/party multispecies
vessels that are not fishing under a multispecies DAS must declare into
and out of the charter/party fishery, providing notification under
paragraph (b) of this section, must remain in the charter/party fishery
for a minimum of 24 hours after declaring into the fishery, and are
subject to the restrictions in Sec. 648.89.
(f) Scallop vessels fishing under exemptions. Vessels fishing under
the exemptions provided by Sec. 648.54 (a) and/or (b) must notify the
Regional Director by VTS notification or through call-in notification
as follows:
(1) VTS notification. (i) Notify the Regional Director, via their
VTS, prior to the vessel's first trip under the state waters exemption
program, that the vessel will be fishing exclusively in state waters;
and
(ii) Notify the Regional Director, via their VTS, prior to the
vessel's first planned trip in the EEZ, that the vessel is to resume
fishing under the vessel's DAS allocation.
(2) Call-in notification. (i) Notify the Regional Director by
calling the Regional Director and providing the following information
at least 7 days prior to fishing under the exemption: Owner and caller
name and address, vessel name and permit number, and beginning and
ending dates of the exemption period.
(ii) Remain under the exemption for a minimum of 7 days.
(iii) If, under the exemption for a minimum of 7 days and wishing
to withdraw earlier than the designated end of the exemption period,
notify the Regional Director of early withdrawal from the program by
calling the Regional Director, providing the vessel's name and permit
number and the name and phone number of the caller, and stating that
the vessel is withdrawing from the exemption. The vessel may not leave
port to fish in the EEZ until 48 hours after notification of early
withdrawal is received by the Regional Director.
(iv) The Regional Director will furnish a phone number for call-ins
upon request.
Sec. 648.11 At-sea sea sampler/observer coverage.
(a) The Regional Director may request any vessel holding a
mackerel, squid, and butterfish; scallop; NE multispecies; or summer
flounder permit to carry a NMFS-approved sea sampler/observer. If
requested by the Regional Director to carry an observer or sea sampler,
a vessel may not engage in any fishing operations in the respective
fishery unless an observer or sea sampler is on board, or unless the
requirement is waived.
(b) If requested by the Regional Director to carry an observer or
sea sampler, it is the responsibility of the vessel owner to arrange
for and facilitate observer or sea sampler placement. Owners of vessels
selected for sea sampler/observer coverage must notify the appropriate
Regional or Science and Research Director, as specified by the Regional
Director, before commencing any fishing trip that may result in the
harvest of resources of the respective fishery. Notification procedures
will be specified in selection letters to vessel owners.
(c) The Regional Director may waive the requirement to carry a sea
sampler or observer if the facilities on a vessel for housing the
observer or sea sampler, or for carrying out observer or sea sampler
functions, are so inadequate or unsafe that the health or safety of the
observer or sea sampler, or the safe operation of the vessel, would be
jeopardized.
(d) An owner or operator of a vessel on which a NMFS-approved sea
sampler/observer is embarked must:
(1) Provide accommodations and food that are equivalent to those
provided to the crew.
[[Page 34981]]
(2) Allow the sea sampler/observer access to and use of the
vessel's communications equipment and personnel upon request for the
transmission and receipt of messages related to the sea sampler's/
observer's duties.
(3) Provide true vessel locations, by latitude and longitude or
loran coordinates, as requested by the observer/sea sampler, and allow
the sea sampler/observer access to and use of the vessel's navigation
equipment and personnel upon request to determine the vessel's
position.
(4) Notify the sea sampler/observer in a timely fashion of when
fishing operations are to begin and end.
(5) Allow for the embarking and debarking of the sea sampler/
observer, as specified by the Regional Director, ensuring that
transfers of observers/sea samplers at sea are accomplished in a safe
manner, via small boat or raft, during daylight hours as weather and
sea conditions allow, and with the agreement of the sea samplers/
observers involved.
(6) Allow the sea sampler/observer free and unobstructed access to
the vessel's bridge, working decks, holding bins, weight scales, holds,
and any other space used to hold, process, weigh, or store fish.
(7) Allow the sea sampler/observer to inspect and copy any the
vessel's log, communications log, and records associated with the catch
and distribution of fish for that trip.
(e) The owner or operator of a summer flounder vessel, if requested
by the sea sampler/observer also must:
(1) Notify the sea sampler/observer of any sea turtles, marine
mammals, summer flounder, or other specimens taken by the vessel.
(2) Provide the sea sampler/observer with sea turtles, marine
mammals, summer flounder, or other specimens taken by the vessel.
(3) Provide storage for biological specimens, including cold
storage if available, and retain such specimens on board the vessel as
instructed by the sea sampler/observer, until retrieved by authorized
NMFS personnel.
(f) NMFS may accept observer coverage funded by outside sources if:
(1) All coverage conducted by such observers is determined by NMFS
to be in compliance with NMFS' observer guidelines and procedures.
(2) The owner or operator of the vessel complies with all other
provisions of this part.
(3) The observer is approved by the Regional Director.
Sec. 648.12 Experimental fishing.
The Regional Director may exempt any person or vessel from the
requirements of subparts B (Atlantic mackerel, squid, and butterfish),
D (sea scallops), E (surf clams and ocean quahogs), F (NE multispecies)
or G (summer flounder) of this part for the conduct of experimental
fishing beneficial to the management of the resources or fishery
managed under that subpart. The Regional Director shall consult with
the Executive Director of the MAFMC regarding such exemptions for the
Atlantic mackerel, squid, and butterfish and the summer flounder
fisheries.
(a) The Regional Director may not grant such an exemption unless
he/she determines that the purpose, design, and administration of the
exemption is consistent with the objectives of the respective FMP, the
provisions of the Magnuson Act, and other applicable law, and that
granting the exemption will not:
(1) Have a detrimental effect on the respective resources and
fishery;
(2) Cause any quota to be exceeded; or
(3) Create significant enforcement problems.
(b) Each vessel participating in any exempted experimental fishing
activity is subject to all provisions of the respective FMP, except
those necessarily relating to the purpose and nature of the exemption.
The exemption will be specified in a letter issued by the Regional
Director to each vessel participating in the exempted activity. This
letter must be carried on board the vessel seeking the benefit of such
exemption.
(c) Experimental fishing for surf clams or ocean quahogs will not
require an allocation permit.
Sec. 648.13 Transfers at sea.
(a) Only vessels issued a Loligo and butterfish moratorium permit
under Sec. 648.4(a)(5) and vessels issued a mackerel, squid, and
butterfish incidental catch permit and authorized in writing by the
Regional Director to do so, may transfer or attempt to transfer Loligo
or butterfish from one vessel to another vessel.
(b) Vessels issued a multispecies permit under Sec. 648.4(a)(1) or
a scallop permit under Sec. 648.4(a)(2) are prohibited from
transferring or attempting to transfer any fish from one vessel to
another vessel, except that vessels issued a multispecies permit under
Sec. 648.4(a)(1) and specifically authorized in writing by the Regional
Director to do so, may transfer species other than regulated species
from one vessel to another vessel.
(c) All persons are prohibited from transferring or attempting to
transfer NE multispecies or scallops from one vessel to another vessel,
except in accordance with paragraph (b) of this section.
Sec. 648.14 Prohibitions.
(a) 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) Fail to report to the Regional Director within 15 days any
change in the information contained in an applicable vessel, operator,
or dealer/processor permit application.
(2) Falsify or fail to affix and maintain vessel markings as
required by Sec. 648.8.
(3) Make any false statement in connection with an application,
declaration, or report under this part.
(4) Fail to comply in an accurate and timely fashion with the log
report, reporting, record retention, inspection, and other requirements
of Sec. 648.7, or submit or maintain false information in records and
reports required to be kept or filed under Sec. 648.7.
(5) Alter, erase, or mutilate any permit issued under this part.
(6) Alter, erase, mutilate, duplicate or cause to be duplicated, or
steal any cage tag issued under this part.
(7) Tamper with, damage, destroy, alter, or in any way distort,
render useless, inoperative, ineffective, or inaccurate the VTS, VTS
unit, or VTS signal required to be installed on or transmitted by
vessel owners or operators required to use a VTS by this part.
(8) Assault, resist, oppose, impede, harass, intimidate, or
interfere with or bar by command, impediment, threat, or coercion
either a NMFS-approved observer or sea sampler aboard a vessel
conducting his or her duties aboard a vessel, or an authorized officer
conducting any search, inspection, investigation, or seizure in
connection with enforcement of this part.
(9) Refuse to carry an observer or sea sampler if requested to do
so by the Regional Director.
(10) To refuse reasonable assistance to either a NMFS-approved
observer or sea sampler conducting his or her duties aboard a vessel.
(11) Fish for surf clams or ocean quahogs in any area closed to
surf clam or ocean quahog fishing.
(12) Fish for, take, catch, harvest or land any species of fish
regulated by this part in or from the EEZ, unless the vessel has a
valid and appropriate permit issued under this part and the permit is
on board the vessel and has not been surrendered, revoked, or
suspended.
[[Page 34982]]
(13) Purchase, possess or receive for a commercial purpose or
attempt to purchase possess or receive for a commercial purpose any
species regulated under this part unless in possession of a valid
dealer permit issued under this part, except that this prohibition does
not apply to species that are purchased or received from a vessel not
issued a permit under this part and fishing exclusively in state
waters.
(14) Produce, or cause to be produced, cage tags required under
this part without written authorization from the Regional Director.
(15) Tag a cage with a tag that has been rendered null and void or
with a tag that has been previously used.
(16) Tag a cage of surf clams with an ocean quahog cage tag or tag
a cage of ocean quahogs with a surf clam cage tag.
(17) Possess, import, export, transfer, land, have custody or
control of any species of fish regulated pursuant to this part that do
not meet the minimum size provisions in this part, unless such species
were harvested exclusively within state waters by a vessel not issued a
permit under this part or whose permit has been surrendered in
accordance with applicable regulations.
(18) Possess an empty cage to which a cage tag required by
Sec. 648.75 is affixed or possess any cage that does not contain surf
clams or ocean quahogs and to which a cage tag required by Sec. 648.75
is affixed.
(19) Land or possess, after offloading, any cage holding surf clams
or ocean quahogs without a cage tag or tags required by Sec. 648.75,
unless the person can demonstrate the inapplicability of the
presumption set forth in Sec. 648.75(t)(1)(iii).
(20) Sell null and void tags.
(21) Shuck surf clams or ocean quahogs harvested in or from the EEZ
at sea, unless permitted by the Regional Director under the terms of
Sec. 648.74.
(22) Receive for a commercial purpose other than transport, surf
clams or ocean quahogs harvested in or from the EEZ, whether or not
they are landed under an allocation under Sec. 648.70, unless issued a
dealer/processor permit under this part.
(23) Land unshucked surf clams or ocean quahogs harvested in or
from the EEZ in containers other than cages from vessels capable of
carrying cages.
(24) Offload unshucked surf clams or ocean quahogs harvested in or
from the EEZ from vessels not capable of carrying cages other than
directly into cages.
(25) Fish for surf clams or ocean quahogs in the EEZ without giving
prior notification, or fail to comply with any of the notification
requirements specified in Sec. 648.15(b).
(26) Fish for, retain, or land both surf clams and ocean quahogs in
or from the EEZ on the same trip.
(27) Fish for, retain, or land ocean quahogs in or from the EEZ on
a trip designated as a surf clam fishing trip under Sec. 648.15(b), or
fish for, retain, or land surf clams in or from the EEZ on a trip
designated as an ocean quahog fishing trip under Sec. 648.15(b).
(28) Fail to offload any surf clams or ocean quahogs harvested in
the EEZ from a trip discontinued pursuant to Sec. 648.15(b) prior to
commencing fishing operations in waters under the jurisdiction of any
state.
(29) Land or possess any surf clams or ocean quahogs harvested in
or from the EEZ in excess of, or without, an individual allocation.
(30) Transfer any surf clams or ocean quahogs harvested in or from
the EEZ to any person for a commercial purpose, other than transport,
without a surf clam or ocean quahog processor or dealer permit.
(31) Fish for, possess, or land NE multispecies, unless:
(i) The NE multispecies are being fished for or were harvested in
or from the EEZ by a vessel holding a valid multispecies permit under
this part, or a letter under Sec. 648.4(a)(1), and the operator on
board such vessel has been issued an operator's permit and has a valid
permit on board the vessel;
(ii) The NE multispecies were harvested by a vessel not issued a
multispecies permit that fishes for NE multispecies exclusively in
state waters; or
(iii) The NE multispecies were harvested in or from the EEZ by a
recreational fishing vessel.
(32) Land, offload, remove, or otherwise transfer, or attempt to
land, offload, remove or otherwise transfer multispecies from one
vessel to another vessel, unless both vessels have not been issued
multispecies permits and both fish exclusively in state waters, or
unless authorized in writing by the Regional Director.
(33) Sell, barter, trade, or otherwise transfer; or attempt to
sell, barter, trade, or otherwise transfer for a commercial purpose any
NE multispecies from a trip, unless the vessel is holding a
multispecies permit, or a letter under Sec. 648.4(a)(1), and is not
fishing under the charter/party vessel restrictions specified in
Sec. 648.89, or unless the NE multispecies were harvested by a vessel
without a multispecies permit that fishes for NE multispecies
exclusively in state waters.
(34) Operate or act as an operator of a vessel fishing for or
possessing NE multispecies in or from the EEZ, or holding a
multispecies permit without having been issued and possessing a valid
operator's permit.
(35) Fish with, use, or have on board within the area described in
Sec. 648.80(a)(1), nets of mesh whose size is smaller than the minimum
mesh size specified in Sec. 648.80(a)(2), except as provided in
Sec. 648.80(a) (3) through (6), (a)(8), (a)(9), (d), (e) and (i), or
unless the vessel has not been issued a multispecies permit and fishes
for NE multispecies exclusively in state waters.
(36) Fish with, use, or have available for immediate use within the
area described in Sec. 648.80(b)(1), nets of mesh size smaller than the
minimum size specified in Sec. 648.80(b)(2), except as provided in
Sec. 648.80 (b)(3), (d), (e), and (i), or unless the vessel has not
been issued a multispecies permit and fishes for multispecies
exclusively in state waters.
(37) Fish with, use, or have available for immediate use within the
area described in Sec. 648.80(c)(1), nets of mesh size smaller than the
minimum size specified in Sec. 648.80(c)(2), except as provided in
Sec. 648.8 (c)(3), (d), (e), and (i), or unless the vessel has not been
issued a multispecies permit and fishes for NE multispecies exclusively
in state waters.
(38) Enter or be in the area described in Sec. 648.81(a)(1) on a
fishing vessel, except as provided in Sec. 648.81(a) (2) and (d).
(39) Enter or be in the area described in Sec. 648.81(b)(1) on a
fishing vessel, except as provided by Sec. 648.81(b)(2).
(40) Enter or be in the area described in Sec. 648.81(c)(1), on a
fishing vessel, except as provided in Sec. 648.81 (c)(2) and (d)(2).
(41) Fail to comply with the gear-marking requirements of
Sec. 648.84.
(42) Fish within the areas described in Sec. 648.80(a)(4) with nets
of mesh smaller than the minimum size specified in Sec. 648.80(a)(2),
unless the vessel is issued and possesses on board an authorizing
letter issued under Sec. 648.80(a)(4)(i).
(43) Violate any of the provisions of Sec. 648.80(a)(4), (5), (8),
or (9). A violation of any of these paragraphs is a separate violation.
(44) Fish for, land, or possess NE multispecies harvested by means
of pair trawling or with pair trawl gear, except under the provisions
of Sec. 648.80(d), or unless the vessels that engaged in pair trawling
have not been issued multispecies permits and fish for NE multispecies
exclusively in state waters.
[[Page 34983]]
(45) Fish for, harvest, possess, or land in or from the EEZ
northern shrimp, unless such shrimp were fished for or harvested by a
vessel meeting the requirements specified in Sec. 648.80(a)(3).
(46) Violate any terms of a letter authorizing experimental fishing
pursuant to Sec. 648.12 or fail to keep such letter on board the vessel
during the period of the experiment.
(47) Fish for the species specified in Sec. 648.80 (d) or (e) with
a net of mesh size smaller than the applicable mesh size specified in
Sec. 648.80(a) (2), (b)(2), or (c)(2), or possess or land such species,
unless the vessel is in compliance with the requirements specified in
Sec. 648.80 (d) or (e), or unless the vessel has not been issued a
multispecies permit and fishes for NE multispecies exclusively in state
waters.
(48) Violate any provision of Sec. 648.88.
(49) Violate any of the restrictions on fishing with scallop dredge
gear specified in Sec. 648.80(h).
(50) Violate any of the provisions of Sec. 648.80(i).
(51) Obstruct or constrict a net as described in Sec. 648.80(g) (1)
or (2).
(52) Enter, be on a fishing vessel in, or fail to remove gear from
the EEZ portion of the areas described in Sec. 648.81 (f)(1) through
(h)(1) during the time period specified, except as provided in
Sec. 648.81(d), (f)(2), (g)(2), and (h)(2).
(53) Possess, land, or fish for regulated species, except winter
flounder as provided for in accordance with Sec. 648.80(i) and from or
within the areas described in Sec. 648.80(i), while in possession of
scallop dredge gear on a vessel not fishing under the scallop DAS
program as described in Sec. 648.53, or fishing under a general scallop
permit, unless the vessel and the dredge gear conform with the stowage
requirements of Sec. 648.51 (a)(2)(ii) and (e)(2), or unless the vessel
has not been issued a multispecies permit and fishes for NE
multispecies exclusively in state waters.
(54) Possess or land fish caught with nets of mesh smaller than the
minimum size specified in Sec. 648.51, or with scallop dredge gear on a
vessel not fishing under the scallop DAS program described in
Sec. 648.54 of this chapter, or fishing under a general scallop permit,
unless said fish are caught, possessed or landed in accordance with
Secs. 648.80 and 648.86, or unless the vessel has not been issued a
multispecies permit and fishes for NE multispecies exclusively in state
waters.
(55) Purchase, possess, or receive as a dealer, or in the capacity
of a dealer, regulated species in excess of the possession limit
specified in Sec. 648.86 applicable to a vessel issued a multispecies
permit.
(56) Possess, or land per trip, scallops in excess of 40 lb (18.14
kg) of shucked, or 5 bu (176.2 L) of in-shell scallops, unless:
(i) The scallops were harvested by a vessel that has been issued
and carries on board a general or limited access scallop permit; or
(ii) The scallops were harvested by a vessel that has not been
issued a scallop permit and fishes for scallops exclusively in state
waters.
(57) Fish for, possess, or land per trip, scallops in excess of 400
lb (181.44 kg) of shucked, or 50 bu (176.2 L) of in-shell scallops,
unless:
(i) The scallops were harvested by a vessel that has been issued
and carries on board a limited access scallop permit, or a letter under
Sec. 648.4(b)(2)(viii)(F); or
(ii) The scallops were harvested by a vessel that has not been
issued a scallop permit and fishes for scallops exclusively in state
waters.
(58) Fish for, possess, or land per trip, scallops in excess of 40
lb (18.14 kg) of shucked, or 5 bu (176.2 L) of in-shell scallops,
unless:
(i) The scallops were harvested by a vessel with an operator on
board who has been issued an operator's permit and the permit is on
board the vessel and is valid; or
(ii) The scallops were harvested by a vessel that has not been
issued a scallop permit and fishes for scallops exclusively in state
waters.
(59) Have a shucking or sorting machine on board a vessel that
shucks scallops at sea, while in possession of more than 400 lb (181.44
kg) of shucked scallops, unless that vessel has not been issued a
scallop permit and fishes exclusively in state waters.
(60) Land, offload, remove, or otherwise transfer, or attempt to
land, offload, remove or otherwise transfer, scallops from one vessel
to another, unless that vessel has not been issued a scallop permit and
fishes exclusively in state waters.
(61) Sell, barter or trade, or otherwise transfer, or attempt to
sell, barter or trade, or otherwise transfer, for a commercial purpose,
any scallops from a trip whose catch is 40 lb (18.14 kg) of shucked
scallops or less, or 5 bu (176.1 L) of in-shell scallops, unless the
vessel has been issued a valid general or limited access scallop
permit, or the scallops were harvested by a vessel that has not been
issued a scallop permit and fishes for scallops exclusively in state
waters.
(62) Purchase, possess, or receive for a commercial purpose, or
attempt to purchase, possess, or receive for a commercial purpose, in
the capacity of a dealer, scallops taken from a fishing vessel that
were harvested in or from the EEZ, unless issued, and in possession of,
a valid scallop dealer's permit.
(63) Purchase, possess, or receive for commercial purposes, or
attempt to purchase or receive for commercial purposes, scallops caught
by a vessel other than one issued a valid limited access or general
scallop permit unless the scallops were harvested by a vessel that has
not been issued a scallop permit and fishes for scallops exclusively in
state waters.
(64) Operate or act as an operator of a vessel fishing for or
possessing any species of fish regulated by this part in or from the
EEZ, or issued a permit pursuant to this part, without having been
issued and possessing a valid operator's permit.
(65) Possess in or harvest from the EEZ summer flounder, either in
excess of the possession limit specified in Sec. 648.105, or before or
after the time period specified in Sec. 648.102, unless the vessel was
issued a summer flounder moratorium permit and the moratorium permit is
on board the vessel and has not been surrendered, revoked, or
suspended.
(66) Possess nets or netting with mesh not meeting the minimum mesh
requirement of Sec. 648.104 if the person possesses summer flounder
harvested in or from the EEZ in excess of the threshold limit of
Sec. 648.105(a).
(67) Purchase or otherwise receive, except for transport, summer
flounder from the owner or operator of a vessel issued a summer
flounder moratorium permit, unless in possession of a valid summer
flounder dealer permit.
(68) Purchase or otherwise receive for commercial purposes summer
flounder caught by other than a vessel with a summer flounder
moratorium permit not subject to the possession limit of Sec. 648.105.
(69) Purchase or otherwise receive for a commercial purpose summer
flounder landed in a state after the effective date published in the
Federal Register notifying permit holders that commercial quota is no
longer available in that state.
(70) Fail to comply with any sea turtle conservation measure
specified in Sec. 648.106, including any sea turtle conservation
measure implemented by notification in the Federal Register in
accordance with Sec. 648.106(d).
(71) Use any vessel of the United States for taking, catching,
harvesting, fishing for, or landing any Atlantic salmon taken from or
in the EEZ.
[[Page 34984]]
(72) Transfer, directly or indirectly, or attempt to transfer to
any vessel any Atlantic salmon taken in or from the EEZ.
(73) Take and retain, or land more mackerel, squid, and butterfish
than specified under a notice issued under Sec. 648.22.
(74) Possess nets or netting with mesh not meeting the minimum size
requirement of Sec. 648.23 and not stowed in accordance with the
requirements of Sec. 648.23, if in possession of Loligo harvested in or
from the EEZ.
(75) Transfer Loligo or butterfish within the EEZ, unless the
vessels participating in the transfer have been issued valid Loligo and
butterfish moratorium permits or valid letters of authorization from
the Regional Director.
(76) Purchase, possess or receive for a commercial purpose, or
attempt to purchase, possess, or receive for a commercial purpose, in
the capacity of a dealer, except for transport on land, mackerel,
squid, and butterfish taken from a fishing vessel unless issued, and in
possession of a valid mackerel, squid, and butterfish fishery dealer
permit.
(77) Purchase or otherwise receive for a commercial purpose,
mackerel, squid, and butterfish caught by other than a vessel issued a
mackerel, squid, and butterfish permit, unless the vessel has not been
issued a permit under this part and fishes exclusively within the
waters under the jurisdiction of any state.
(78) Land any scup harvested in or from the EEZ in fillet form with
the skin removed.
(79) Violate any other provision of this part, the Magnuson Act, or
any regulation, notice, or permit issued under the Magnuson Act.
(b) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraph (a) of this section, it
is unlawful for any person owning or operating a vessel holding a
multispecies permit, issued an operator's permit, or issued a letter
under Sec. 648.4(a)(1)(i)(H)(3), to land, or possess on board a vessel,
more than the possession limits specified in Sec. 648.86(a), or violate
any of the other provisions of Sec. 648.86.
(c) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraphs (a) and (b) of this
section, it is unlawful for any person owning or operating a vessel
issued a limited access multispecies permit or a letter under
Sec. 648.4(a)(1)(i)(H)(3), to do any of the following:
(1) Fish for, possess at any time during a trip, or land per trip
more than the possession limit of regulated species specified in
Sec. 648.86(c) after using up the vessel's annual DAS allocation or
when not participating under the DAS program pursuant to Sec. 648.82,
unless otherwise exempted under Sec. 648.82(b)(3) or Sec. 648.89.
(2) If required by Sec. 648.10 to have a VTS unit:
(i) Fail to have a certified, operational, and functioning VTS unit
that meets the specifications of Sec. 648.9 on board the vessel at all
times.
(ii) Fail to comply with the notification, replacement, or any
other requirements regarding VTS usage as specified in Sec. 648.10(a).
(3) Combine, transfer, or consolidate DAS allocations.
(4) Fish for, possess, or land NE multispecies with or from a
vessel that has had the horsepower of such vessel or its replacement
upgraded or increased in excess of the limitations specified in
Sec. 648.4(a)(1)(i) (E) and (F).
(5) Fish for, possess, or land NE multispecies with or from a
vessel that has had the length, GRT, or NT of such vessel or its
replacement increased or upgraded in excess of limitations specified in
Sec. 648.4(a)(1)(i) (E) and (F).
(6) Fail to comply with any requirement specified in Sec. 648.10.
(7) Possess or land per trip more than the possession limit
specified under Sec. 648.8 if the vessel has been issued a limited
access multispecies permit.
(8) Fail to comply with the restrictions on fishing and gear
specified in Sec. 648.82(b)(4), if the vessel has been issued a limited
access multispecies hook-gear permit.
(9) Fail to declare, and be, out of the NE multispecies fishery as
required by Sec. 648.82(g), using the procedure described under
Sec. 648.82(h), as applicable.
(10) Land, or possess on board a vessel, more than the possession
limit of winter flounder specified in Sec. 648.86(b), or violate any of
the other provisions specified of Sec. 648.86(b).
(d) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraphs (a), (b), and (c) of
this section, it is unlawful for any person owning or operating a
vessel issued a multispecies handgear permit to do any of the
following:
(1) Possess, at any time during a trip, or land per trip, more than
the possession limit of regulated species specified in Sec. 648.88(a),
unless the regulated species were harvested by a charter or party
vessel.
(2) Use, or possess on board, gear capable of harvesting NE
multispecies, other than rod and reel or handline, while in possession
of, or fishing for, NE multispecies.
(3) Possess or land NE multispecies during the time period
specified in Sec. 648.86(a)(2).
(e) In addition to the general prohibitions specified in Sec.
600.725 of this chapter and in paragraphs (a) through (d) of this
section, it is unlawful for any person owning or operating a vessel
issued a multispecies possession limit permit for scallops to possess
or land more than the possession limit of regulated species specified
at Sec. 648.88(c) or to possess or land regulated species when not
fishing under a scallop DAS.
(f) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraph (a) of this section, it
is unlawful for any person owning or operating a vessel issued a
limited access scallop permit or a general scallop permit under
Sec. 648.4(a)(2) to land, or possess at or after landing, in-shell
scallops smaller than the minimum shell height specified in
Sec. 648.50(a).
(g) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and the prohibitions specified in
paragraphs (a) through (f) of this section, it is unlawful for the
owner or operator of a charter or party boat issued a multispecies
permit, or of a recreational vessel, as applicable, to:
(1) Fish with gear in violation of the restrictions specified in
Sec. 648.89(a).
(2) Possess cod and haddock in excess of the possession limits
specified in Sec. 648.89(c).
(3) Sell, trade, barter, or otherwise transfer, or attempt to sell,
trade, barter or otherwise transfer, NE multispecies for a commercial
purpose as specified in Sec. 648.89(d).
(h) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraphs (a) and (g) of this
section, it is unlawful for any person owning or operating a vessel
issued a limited access scallop permit under Sec. 648.4(a)(2) to do any
of the following:
(1) Possess, or land per trip, more than 400 lb (181.44 kg) of
shucked, or 50 bu (176.2 L) of in-shell scallops after using up the
vessel's annual DAS allocation or when not participating under the DAS
program pursuant to Sec. 648.10, unless exempted from DAS allocations
as provided in Sec. 648.54.
(2) Land scallops on more than one trip per calendar day after
using up the vessel's annual DAS allocation or when not participating
under the DAS program pursuant to Sec. 648.10, unless exempted from DAS
allocations as provided in Sec. 648.55.
(3) Fail to have an approved, operational, and functioning VTS unit
that meets the specifications of Sec. 648.9
[[Page 34985]]
on board the vessel at all times, unless the vessel is not subject to
the VTS requirements specified in Sec. 648.10.
(4) If the vessel is not subject to VTS requirements specified in
Sec. 648.10(a), fail to comply with the requirements of the call-in
system specified in Sec. 648.10(b).
(5) Combine, transfer, or consolidate DAS allocations.
(6) Have an ownership interest in more than 5 percent of the total
number of vessels issued limited access scallop permits, except as
provided in Sec. 648.4(a)(2)(i)(H).
(7) Fish for, possess, or land scallops with or from a vessel that
has had the horsepower of such vessel or its replacement upgraded or
increased in excess of the limitations specified in Sec. 648.4(a)(2)(i)
(E) or (F).
(8) Fish for, possess, or land scallops with or from a vessel that
has had the length, GRT, or NT of such vessel or its replacement
increased or upgraded in excess of limitations specified in
Sec. 648.4(a)(2)(i) (E) or (F).
(9) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.2
L) of in-shell scallops or participate in the DAS allocation program,
while in possession of trawl nets that have a maximum sweep exceeding
144 ft (43.9 m), as measured by the total length of the footrope that
is directly attached to the webbing of the net, except as specified in
Sec. 648.51(a)(2)(iii).
(10) Fish under the DAS allocation program with, or have available
for immediate use, trawl nets of mesh smaller than the minimum size
specified in Sec. 648.51(a)(2).
(11) Fish under the DAS allocation program with trawl nets that use
chafing gear or other means or devices that do not meet the
requirements of Sec. 648.51(a)(3).
(12) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.2
L) of in-shell scallops or participate in the DAS allocation program,
while in possession of dredge gear that has a maximum combined dredge
width exceeding 31 ft (9.4 m), measured at the widest point in the bail
of each dredge, except as specified in Sec. 648.51(b)(1).
(13) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.1
L) of in-shell scallops, or fish under the DAS allocation program,
while in possession of dredge gear that uses net or net material on the
top half of the dredge of a minimum mesh size smaller than that
specified in Sec. 648.51(b)(2).
(14) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.1
L) of in-shell scallops, or fish under the DAS allocation program,
while in possession of dredge gear containing rings that have minimum
sizes smaller than those specified in Sec. 648.51(b)(3).
(15) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.2
L) of in-shell scallops, or participate in the DAS allocation program,
while in possession of dredge gear that uses links between rings of the
gear or ring configurations that do not conform to the specifications
described in Sec. 648.51(b)(4)(ii).
(16) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.2
L) of in-shell scallops, or participate in the DAS allocation program,
while in possession of dredge gear that uses cookies or chafing gear,
or other gear, means, or devices on the top half of a dredge that
obstruct the openings in or between the rings, except as specified in
Sec. 648.51(b)(4).
(17) Participate in the DAS allocation program with more than the
number of persons specified in Sec. 648.51(c), including the operator,
on board when the vessel is not docked or moored in port, unless
otherwise authorized by the Regional Director.
(18) Fish under the small dredge program specified in Sec.
648.51(e), with, or while in possession of, a dredge that exceeds 10.5
ft (3.2 m) in overall width, as measured at the widest point in the
bail of the dredge.
(19) Fish under the small dredge program as specified in
Sec. 648.51(e) with more than five persons, including the operator,
aboard the vessel, unless otherwise authorized by the Regional
Director.
(20) Have a shucking or sorting machine on board a vessel that
shucks scallops at sea while fishing under the DAS allocation program,
unless otherwise authorized by the Regional Director.
(21) Refuse or fail to carry an observer if requested to do so by
the Regional Director.
(22) Fail to provide an observer with required food,
accommodations, access, and assistance, as specified in Sec. 648.11.
(23) Fail to comply with any requirement for declaring in and out
of the DAS allocation program as specified in Sec. 648.10.
(24) Fail to comply with any requirement for participating in the
DAS Exemption Program as specified in Sec. 648.54.
(25) Fish with, possess on board, or land scallops while in
possession of trawl nets, when fishing for scallops under the DAS
allocation program, unless exempted as provided for in Sec. 648.51(f).
(26) Fail to comply with the restriction on twine top described in
Sec. 648.51(b)(4)(iv).
(i) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraphs (a), (f), and (g) of
this section, it is unlawful for any person owning or operating a
vessel issued a general scallop permit to do any of the following:
(1) Possess, or land per trip, more than 400 lb (181.44 kg) of
shucked, or 50 bu (176.2 L) of in-shell scallops.
(2) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.2
L) of in-shell scallops while in possession of, or fish for scallops
with, dredge gear that has a maximum combined dredge width exceeding 31
ft (9.4 m), measured at the widest point in the bail of each dredge,
except as specified in Sec. 648.51(b)(1).
(3) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.1
L) of in-shell scallops while in possession of, or fish for scallops
with, dredge gear that uses net or net material on the top half of the
dredge of a minimum mesh size smaller than that specified in
Sec. 648.51(b)(2).
(4) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.1
L) of in-shell scallops while in possession of, or fish for scallops
with, dredge gear containing rings that have minimum sizes smaller than
those specified in Sec. 648.51(b)(3).
(5) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.2
L) of in-shell scallops while in possession of, or fish for scallops
with, dredge gear that uses links between rings of the gear or ring
configurations that do not conform to the specifications described in
Sec. 648.51(b)(4)(ii).
(6) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.2
L) of in-shell scallops while in possession of, or fish for scallops
with, dredge gear that uses cookies or chafing gear, or other gear,
means, or devices on the top half of a dredge that obstruct the
openings in or between the rings, except as specified in
Sec. 648.51(b)(4).
(7) Fish for, or land, more than 40 lb (18.14 kg) of scallops on
more than one trip per calendar day.
(j) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraph (a) of this section, it
is unlawful for any person owning or operating a vessel issued a summer
flounder permit (including moratorium permit) to do any of the
following:
(1) Possess 100 lb or more (45.4 kg or more) of summer flounder
between May 1 and October 31, or 200 lb or more (90.7 kg or more) of
summer flounder between November 1 and April 30, unless the vessel
meets the minimum mesh size requirement specified in Sec. 648.104(a),
or is fishing in the exempted area with an exemption permit as
specified in Sec. 648.104(b)(1), or
[[Page 34986]]
holds an exemption permit and is in transit from the exemption area
with nets properly stowed as specified in Sec. 648.104(f), or is
fishing with exempted gear specified in Sec. 648.104(b)(2).
(2) Possess summer flounder in other than a box specified in
Sec. 648.105(d) if fishing with nets having mesh that does not meet the
minimum mesh-size requirement specified in Sec. 648.104(a), unless the
vessel is fishing pursuant to the exemptions specified in
Sec. 648.104(b).
(3) Land summer flounder for sale in a state after the effective
date of the notification in the Federal Register notifying permit
holders that commercial quota is no longer available in that state.
(4) Fish with or possess nets or netting that do not meet the
minimum mesh requirement, or that are modified, obstructed or
constricted, if subject to the minimum mesh requirement specified in
Sec. 648.104, unless the nets or netting are stowed in accordance with
Sec. 648.104(f).
(5) Fish with or possess nets or netting that do not meet the
minimum mesh requirement, or that are modified, obstructed or
constricted, if fishing with an exempted net described in Sec. 648.104,
unless the nets or netting are stowed in accordance with
Sec. 648.104(f).
(6) Fish west or south, as appropriate, of the line specified in
Sec. 648.104(b)(1) if exempted from the minimum mesh requirement
specified in Sec. 648.104 by a summer flounder exemption permit.
(7) Sell or transfer to another person for a commercial purpose,
other than transport, any summer flounder, unless the transferee has a
valid summer flounder dealer permit.
(8) Carry passengers for hire, or carry more than three crew
members for a charter boat or five crew members for a party boat, while
fishing commercially pursuant to a summer flounder moratorium permit.
(k) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter, it is unlawful for any person owning or
operating a vessel fishing commercially for scup that are harvested in
or from the EEZ, to do any of the following:
(1) Possess 4,000 lb or more (1,814.4 kg or more) of scup harvested
in or from the EEZ, unless the vessel meets the minimum mesh size
requirement specified in Sec. 648.124(a).
(2) Fish with or possess nets or netting in the EEZ that do not
meet the minimum mesh requirement, or that are modified, obstructed,
constricted, or constructed with mesh in which the bars entering or
exiting the knots twist around each other, if subject to the minimum
mesh requirement specified in Sec. 648.124(a), unless the nets or
netting are stowed in accordance with Sec. 648.23(b).
(3) Engage in recreational fishing in the EEZ while simultaneously
conducting commercial fishing operations.
(l) It is unlawful for the owner or operator of any recreational
fishing vessel, including party or charter boats, to possess scup
harvested in or from the EEZ smaller than the minimum size limit for
recreational fishermen specified in Sec. 648.125(b).
(m) It is unlawful for the owner and operator of a party or charter
boat issued a summer flounder permit (including moratorium permit),
when the boat is carrying passengers for hire or carrying more than
three crew members if a charter boat or more than five members if a
party boat, to:
(1) Possess summer flounder in excess of the possession limit
established pursuant to Sec. 648.105.
(2) Fish for summer flounder other than during a season specified
pursuant to Sec. 648.102.
(3) Sell or transfer summer flounder to another person for a
commercial purpose.
(n) It is unlawful to violate any terms of a letter authorizing
experimental fishing pursuant to Sec. 648.12 or to fail to keep such
letter aboard the vessel during the time period of the experimental
fishing.
(o) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraph (a) of this section, it
is unlawful for any person owning or operating a vessel issued a surf
clam and ocean quahog permit or issued a surf clam and ocean quahog
allocation permit under Sec. 648.70, to land or possess any surf clams
or ocean quahogs in excess of, or without, an individual allocation, or
to transfer any surf clams or ocean quahogs to any person for a
commercial purpose other than transport, unless that person has a surf
clam and ocean quahog processor/dealer permit.
(p) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter, it is unlawful for any person owning or
operating a vessel issued a valid mackerel, squid, and butterfish
fishery permit, or issued an operator's permit, to do any of the
following:
(1) Possess more than the incidental catch allowance of Loligo or
butterfish, unless issued a Loligo squid and butterfish fishery
moratorium permit.
(2) Take, retain, or land mackerel, squid, or butterfish in excess
of a trip allowance specified under Sec. 648.22.
(3) Take, retain, or land mackerel, squid, or butterfish after a
total closure specified under Sec. 648.22.
(4) Fish with or possess nets or netting that do not meet the
minimum mesh requirement for Loligo specified in Sec. 648.23(a), or
that are modified, obstructed, or constricted, if subject to the
minimum mesh requirement, unless the nets or netting are stowed in
accordance with Sec. 648.23(b) or the vessel is fishing under an
exemption specified in Sec. 648.23(a).
(5) Transfer squid or butterfish at sea to another vessel, unless
that other vessel has been issued a valid Loligo squid and butterfish
fishery moratorium permit or a letter of authorization by the Regional
Director.
(6) Fail to comply with any measures implemented pursuant to
Sec. 648.21.
(7) Carry passengers for hire while fishing commercially under a
mackerel, squid, and butterfish fishery permit.
(8) Fail to carry on board a letter of authorization, if fishing in
an experimental fishery pursuant to Sec. 648.12.
(q) It is unlawful for the owner and operator of a party or charter
boat issued a mackerel, squid, and butterfish fishery permit (including
a moratorium permit), when the boat is carrying passengers for hire, to
do any of the following:
(1) Violate any recreational fishing measures established pursuant
to Sec. 648.21(d).
(2) Sell or transfer mackerel, squid, or butterfish to another
person for a commercial purpose.
(r) It is unlawful for any person to violate any terms of a letter
authorizing experimental fishing pursuant to Sec. 648.11 or to fail to
keep such letter on board the vessel during the period of the
experiment.
(s) Any person possessing or landing per trip, scallops in excess
of 40 lb (18.14 kg) of shucked, or 5 bu (176.1 L) of in-shell scallops,
at or prior to the time when those scallops are received or possessed
by a dealer, is subject to all of the scallop prohibitions specified in
this section, unless the scallops were harvested by a vessel without a
scallop permit that fishes for scallops exclusively in state waters.
Any person, regardless of the quantity of scallops possessed or landed,
is subject to the prohibitions of paragraphs (a)(4) through (7), (10),
(11), (68), (69), (71), (72), (73), and (87) of this section.
(t) For purposes of this section, the following presumptions apply:
(1) Surf clams and ocean quahogs. (i) Possession of surf clams or
ocean quahogs on the deck of any fishing vessel in closed areas, or the
presence of any part of a vessel's gear in the water
[[Page 34987]]
in closed areas, or the presence of any part of a vessel's gear in the
water more than 12 hours after an announcement closing the entire
fishery becomes effective, is prima facie evidence that such vessel was
fishing in violation of the provisions of the Magnuson Act and these
regulations.
(ii) Surf clams or ocean quahogs landed from a trip for which
notification was provided under Sec. 648.15(b) or Sec. 648.70(b) are
deemed to have been harvested in the EEZ and count against the
individual's annual allocation.
(iii) Surf clams or ocean quahogs found in cages without a valid
state tag are deemed to have been harvested in the EEZ, and to be part
of an individual's allocation, unless such individual demonstrates that
he/she has surrendered his/her surf clam and ocean quahog vessel permit
issued under Sec. 648.4 and has conducted fishing operations
exclusively within waters under the jurisdiction of any state. Surf
clams and ocean quahogs in cages with a Federal tag or tags, issued and
still valid pursuant to this section, affixed thereto are deemed to
have been harvested by the individual allocation holder to whom the
tags were issued or transferred under Sec. 648.70(d)(2) or
Sec. 648.75(b).
(2) Scallops. Scallops that are possessed or landed at or prior to
the time when the scallops are received by a dealer, or scallops that
are possessed by a dealer, are deemed to be harvested from the EEZ,
unless the preponderance of all submitted evidence demonstrates that
such scallops were harvested by a vessel without a scallop permit and
fishing exclusively for scallops in state waters.
(3) Summer flounder. All summer flounder possessed aboard a party
or charter boat issued a summer flounder permit are deemed to have been
harvested from the EEZ.
(4) NE multispecies. (i) Regulated species possessed for sale that
do not meet the minimum sizes specified in Sec. 648.83 for sale are
deemed to have been taken or imported in violation of these
regulations, unless the preponderance of all submitted evidence
demonstrates that such fish were harvested by a vessel not issued a
permit under this part and fishing exclusively within state waters.
This presumption does not apply to fish being sorted on deck.
(ii) Regulated species possessed for sale that do not meet the
minimum sizes specified in Sec. 648.83 for sale are deemed taken from
the EEZ or imported in violation of these regulations, unless the
preponderance of all submitted evidence demonstrates that such fish
were harvested by a vessel not issued a permit under this part and
fishing exclusively within state waters. This presumption does not
apply to fish being sorted on deck.
(5) Mackerel, squid, and butterfish. All mackerel and butterfish
possessed on board a party or charter boat issued a mackerel, squid,
and butterfish fishery permit are deemed to have been harvested from
the EEZ.
Sec. 648.15 Facilitation of enforcement.
(a) General. See Sec. 600.504 of this chapter.
(b) Special notification requirements applicable to surf clam and
ocean quahog vessel owners and operators. (1) Vessel owners or
operators are required to call the NMFS Office of Law Enforcement
nearest to the point of offloading (contact the Regional Director for
locations and phone numbers) and accurately provide the following
information prior to the departure of their vessel from the dock to
fish for surf clams or ocean quahogs in the EEZ: Name of the vessel;
NMFS permit number assigned to the vessel; expected date and time of
departure from port; whether the trip will be directed on surf clams or
ocean quahogs; expected date, time, and location of landing; and name
of the individual providing notice.
(2) Owners or operators that have given notification of a fishing
trip under this paragraph (b) who decide to cancel or postpone the trip
prior to departure must immediately provide notice of cancellation by
telephone to the Office of Law Enforcement to which the original
notification was provided. A separate notification shall be provided
for the next fishing trip. Owners or operators that discontinue a
fishing trip in the EEZ must immediately provide notice of
discontinuance by telephone to the Office of Law Enforcement to which
the original notification was provided. The owner or operator providing
notice of discontinuance shall advise of any changes in landing time or
port of landing. The owner or operator discontinuing a fishing trip in
the EEZ must return to port and offload any surf clams or ocean quahogs
prior to commencing fishing operations in the waters under the
jurisdiction of any state.
(3) The vessel permits, the vessel, its gear, and catch shall be
subject to inspection upon request by an authorized officer.
Sec. 648.16 Penalties.
See Sec. 600.735.
Subpart B--Management Measures for the Atlantic Mackerel, Squid,
and Butterfish Fisheries
Sec. 648.20 Maximum optimum yield (OYs).
The OYs specified pursuant to Sec. 648.21 during a fishing year may
not exceed the following amounts:
(a) Mackerel--that quantity of mackerel that is less than or equal
to the allowable biological catch (ABC) in U.S. waters specified
pursuant to Sec. 648.21.
(b) Loligo--36,000 mt (79,362,000 lb).
(c) Illex--30,000 mt (66,135,000 lb).
(d) Butterfish--16,000 mt (35,272,000 lb).
Sec. 648.21 Procedures for determining initial annual amounts.
(a) Initial recommended annual specifications. The Atlantic
Mackerel, Squid, and Butterfish Monitoring Committee (Monitoring
Committee) shall meet annually to develop and recommend the following
specifications for consideration by the Mackerel, Squid, and Butterfish
Committee of the MAFMC: (1) Initial OY (IOY), domestic annual harvest
(DAH), and domestic annual processing (DAP) for the squids; (2) IOY,
DAH, DAP, and bycatch level of the total allowable level of foreign
fishing (TALFF), if any, for butterfish; and (3) IOY, DAH, DAP, joint
venture processing (JVP), if any, and TALFF, if any, for mackerel. The
Monitoring Committee may also recommend that certain ratios of TALFF,
if any, for mackerel to purchases of domestic harvested fish and/or
domestic processed fish be established in relation to the initial
annual amounts.
(b) Guidelines. As the basis for its recommendations under
paragraph (a) of this section, the Monitoring Committee shall review
available data pertaining to: Commercial and recreational landings,
discards, current estimates of fishing mortality, stock status, the
most recent estimates of recruitment, virtual population analysis
results, levels of noncompliance by harvesters or individual states,
impact of size/mesh regulations, results of a survey of domestic
processors and joint venture operators of estimated mackerel processing
capacity and intent to use that capacity, results of a survey of
fishermen's trade associations of estimated mackerel harvesting
capacity and intent to use that capacity, and any other relevant
information. The specifications recommended pursuant to paragraph (a)
of this section must be consistent with the following:
(1) Squid. (i) The ABC for any fishing year must be either the
maximum OY specified in Sec. 648.20, or a lower amount, if stock
assessments indicate that the
[[Page 34988]]
potential yield is less than the maximum OY.
(ii) IOY is a modification of ABC based on social and economic
factors.
(2) Mackerel. (i) Mackerel ABC must be calculated from the formula
ABC = S - C - T, where C is the estimated catch of mackerel in Canadian
waters for the upcoming fishing year; S is the mackerel spawning stock
size at the beginning of the year for which quotas are specified; and
T, which must be equal to or greater than 900,000 mt (1,984,050,000
lb), is the spawning stock size that must be maintained in the year
following the year for which quotas are specified.
(ii) IOY is a modification of ABC, based on social and economic
factors, and must be less than or equal to ABC.
(iii) IOY is composed of DAH and TALFF. DAH, DAP, and JVP must be
projected by reviewing data from sources specified in paragraph (a) of
this section and other relevant data, including past domestic landings,
projected amounts of mackerel necessary for domestic processing and for
joint ventures during the fishing year, projected recreational
landings, and other data pertinent for such a projection. The JVP
component of DAH is the portion of DAH that domestic processors either
cannot or will not use. In addition, IOY is based on the criteria set
forth in the Magnuson Act, specifically section 201(e), and on the
following economic factors:
(A) Total world export potential by mackerel producing countries.
(B) Total world import demand by mackerel consuming countries.
(C) U.S. export potential based on expected U.S. harvests, expected
U.S. consumption, relative prices, exchange rates, and foreign trade
barriers.
(D) Increased/decreased revenues to the United States from foreign
fees.
(E) Increased/decreased revenues to U.S. harvesters (with/without
joint ventures).
(F) Increased/decreased revenues to U.S. processors and exporters.
(G) Increases/decreases in U.S. harvesting productivity due to
decreases/increases in foreign harvest.
(H) Increases/decreases in U.S. processing productivity.
(I) Potential impact of increased/decreased TALFF on foreign
purchases of U.S. products and services and U.S.-caught fish, changes
in trade barriers, technology transfer, and other considerations.
(3) Butterfish. (i) If the Monitoring Committee's review indicates
that the stock cannot support a level of harvest equal to the maximum
OY, the Monitoring Committee shall recommend establishing an ABC less
than the maximum OY for the fishing year. This level represents the
modification of maximum OY to reflect biological and ecological
factors. If the stock is able to support a harvest level equivalent to
the maximum OY, the ABC must be set at that level.
(ii) IOY is a modification of ABC based on social and economic
factors. The IOY is composed of a DAH and bycatch TALFF that is equal
to 0.08 percent of the allocated portion of the mackerel TALFF.
(c) Recommended measures. Based on the review of the data described
in paragraph (a) of this section, the Monitoring Committee will
recommend to the Squid, Mackerel, and Butterfish Committee the measures
it determines are necessary to assure that the specifications are not
exceeded from the following measures:
(1) Commercial quotas.
(2) The amount of Loligo and butterfish that may be retained,
possessed and landed by vessels issued the incidental catch permit
specified in Sec. 648.4(a)(5).
(3) Commercial minimum fish sizes.
(4) Commercial trip limits.
(5) Commercial seasonal quotas.
(6) Minimum mesh sizes.
(7) Commercial gear restrictions.
(8) Recreational harvest limit.
(9) Recreational minimum fish size.
(10) Recreational possession limits.
(11) Recreational season.
(d) Annual fishing measures. (1) The Squid, Mackerel, and
Butterfish Committee shall review the recommendations of the Monitoring
Committee. Based on these recommendations and any public comment
received thereon, the Squid, Mackerel, and Butterfish Committee shall
recommend to the MAFMC appropriate specifications and any measures
necessary to assure that the specifications will not be exceeded. The
MAFMC shall review these recommendations and based on the
recommendations and any public comment received thereon, the MAFMC
shall recommend to the Regional Director appropriate specifications and
any measures necessary to assure that the specifications will not be
exceeded. The MAFMC's recommendations must include supporting
documentation, as appropriate, concerning the environmental, economic,
and social impacts of the recommendations. The Regional Director shall
review the recommendations, and on or about November 1 of each year,
shall publish notification in the Federal Register proposing
specifications and any measures necessary to assure that the
specifications will not be exceeded and providing a 30-day public
comment period. If the proposed specifications differ from those
recommended by the MAFMC, the reasons for any differences shall be
clearly stated and the revised specifications must satisfy the criteria
set forth in this section. The MAFMC's recommendations shall be
available for inspection at the office of the Regional Director during
the public comment period.
(2) On or about December 15 of each year, the Assistant
Administrator will make a final determination concerning the
specifications for each species and any measures necessary to assure
that the specifications will not be exceeded contained in the Federal
Register notification. After the Assistant Administrator considers all
relevant data and any public comments, notification of the final
specifications and any measures necessary to assure that the
specifications will not be exceeded and responses to the public
comments will be published in the Federal Register. If the final
specification amounts differ from those recommended by the MAFMC, the
reason(s) for the difference(s) must be clearly stated and the revised
specifications must be consistent with the criteria set forth in
paragraph (b) of this section.
(e) Inseason adjustments. The specifications established pursuant
to this section may be adjusted by the Regional Director, in
consultation with the MAFMC, during the fishing year by publishing
notification in the Federal Register stating the reasons for such an
action and providing a 30-day comment public comment period.
Sec. 648.22 Closure of the fishery.
(a) General. The Assistant Administrator shall close the directed
mackerel or Loligo or Illex squid or butterfish fishery in the EEZ when
U.S. fishermen have harvested 80 percent of the DAH, of that fishery if
such closure is necessary to prevent the DAH from being exceeded. The
closure shall remain in effect for the remainder of the fishing year,
with incidental catches allowed as specified in paragraph (c) of this
section, until the entire DAH is attained. When the Regional Director
projects that DAH will be attained for any of the species, the
Assistant Administrator shall close the fishery in the EEZ to all
fishing for that species, and the incidental catches specified in
paragraph (c) of this section will be prohibited.
(b) Notification. Upon determining that a closure is necessary, the
Assistant Administrator will notify, in advance of
[[Page 34989]]
the closure, the Executive Directors of the MAFMC, NEFMC, and SAFMC;
mail notification of the closure to all holders of mackerel, squid, and
butterfish fishery permits at least 72 hours before the effective date
of the closure; provide adequate notice of the closure to recreational
participants in the fishery; and publish notification of closure in the
Federal Register.
(c) Incidental catches. During the closure of a directed fishery,
the trip limit for the species for which the fishery is closed is 10
percent, by weight, of the total amount of fish on board for a vessel
with a Loligo/butterfish moratorium permit or Illex or a mackerel
commercial permit. During a period of closure of the directed fishery
for Loligo or butterfish, the trip limit for a vessel with an
incidental catch permit for those species is 10 percent, by weight, of
the total amount of fish on board, or the allowed level of incidental
catch specified in Sec. 648.4(e)(2), whichever is less.
Sec. 648.23 Gear restrictions.
(a) Mesh restrictions and exemptions. Owners or operators of otter
trawl vessels possessing Loligo harvested in or from the EEZ may only
fish with nets having a minimum mesh size of 1\7/8\ inches (48 mm)
diamond mesh, inside stretch measure, applied throughout the entire
net, unless they are fishing during the months of June, July, August,
and September for Illex seaward of the following coordinates (copies of
a map depicting this area are available from the Regional Director upon
request):
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
M1............................................ 43 deg.58.0
' 67 deg.22.0
'
M2............................................ 43 deg.50.0
' 68 deg.35.0
'
M3............................................ 43 deg.30.0
' 69 deg.40.0
'
M4............................................ 43 deg.20.0
' 70 deg.00.0
'
M5............................................ 42 deg.45.0
' 70 deg.10.0
'
M6............................................ 42 deg.13.0
' 69 deg.55.0
'
M7............................................ 41 deg.00.0
' 69 deg.00.0
'
M8............................................ 41 deg.45.0
' 68 deg.15.0
'
M9............................................ 42 deg.10.0
' 67 deg.10.0
'
M10........................................... 41 deg.18.6
' 66 deg.24.8
'
M11........................................... 40 deg.55.5
' 66 deg.38.0
'
M12........................................... 40 deg.45.5
' 68 deg.00.0
'
M13........................................... 40 deg.37.0
' 68 deg.00.0
'
M14........................................... 40 deg.30.0
' 69 deg.00.0
'
M15........................................... 40 deg.22.7
' 69 deg.00.0
'
M16........................................... 40 deg.18.7
' 69 deg.40.0
'
M17........................................... 40 deg.21.0
' 71 deg.03.0
'
M18........................................... 39 deg.41.0
' 72 deg.32.0
'
M19........................................... 38 deg.47.0
' 73 deg.11.0
'
M20........................................... 38 deg.04.0
' 74 deg.06.0
'
M21........................................... 37 deg.08.0
' 74 deg.46.0
'
M22........................................... 36 deg.00.0
' 74 deg.52.0
'
M23........................................... 35 deg.45.0
' 74 deg.53.0
'
M24........................................... 35 deg.28.0
' 74 deg.52.0
'
------------------------------------------------------------------------
Vessels fishing under this exemption may not have available for
immediate use, as defined in paragraph (b) of this section, any net, or
any piece of net, with a mesh size less than 1\7/8\ inches (48 mm)
diamond mesh or any net, or any piece of net, with mesh that is rigged
in a manner that is inconsistent with such minimum mesh size, when the
vessel is landward of the specified coordinates.
(b) Definition of ``not available for immediate use.'' A net that
can be shown not to have been in recent use and that is stowed in
conformance with one of the following methods is considered to be not
available for immediate use:
(1) Below deck stowage. (i) It is stored below the main working
deck from which it is deployed and retrieved;
(ii) The towing wires, including the leg wires, are detached from
the net; and
(iii) It is fan-folded (flaked) and bound around its circumference.
(2) On-deck stowage. (i) It is fan-folded (flaked) and bound around
its circumference;
(ii) It is securely fastened to the deck or rail of the vessel; and
(iii) The towing wires, including the leg wires, are detached from
the net.
(3) On-reel stowage. (i) It is on a reel and it's entire surface is
covered with canvas or other similar material that is securely bound;
(ii) The towing wires, including the leg wires, are detached from
the net; and
(iii) The codend is removed and stored below deck.
(4) Other methods of stowage. Any other method of stowage
authorized in writing by the Regional Director and published in the
Federal Register.
(c) Mesh obstruction or constriction. The owner or operator of a
fishing vessel shall not use any combination of mesh or liners that
effectively decreases the mesh size below the minimum mesh size, except
that a liner may be used to close the opening created by the rings in
the rearmost portion of the net, provided the liner extends no more
than 10 meshes forward of the rearmost portion of the net.
(d) Net obstruction or constriction. The owner or operator of a
fishing vessel shall not use any device, gear, or material, including,
but not limited to, nets, net strengtheners, ropes, lines, or chafing
gear, on the top of the regulated portion of a trawl net that results
in an effective mesh opening of less than 1\7/8\ inches (48 mm) diamond
mesh, inside stretch measure. Net strengtheners (covers), splitting
straps and/or bull ropes or wire may be used, provided they do not
constrict the top of the regulated portion of the net to less than an
effective mesh opening of 1\7/8\ inches (48 mm), diamond mesh, inside
stretch measure. Net strengtheners (covers) may not have an effective
mesh opening of less than 4.5 inches (11.43 cm), diamond mesh, inside
stretch measure. ``Top of the regulated portion of the net'' means the
50 percent of the entire regulated portion of the net that (in a
hypothetical situation) would not be in contact with the ocean bottom
during a tow if the regulated portion of the net were laid flat on the
ocean floor. For the purpose of this paragraph (d), head ropes are not
to be considered part of the top of the regulated portion of a trawl
net.
Subpart C--Management Measures for Atlantic Salmon
Sec. 648.40 Prohibition on possession.
(a) Incidental catch. All Atlantic salmon caught incidental to a
directed fishery for other species in the EEZ must be released in such
a manner as to insure maximum probability of survival.
(b) Presumption. The possession of Atlantic salmon is prima facie
evidence that such Atlantic salmon were taken in violation of this
regulation. Evidence that such fish were harvested in state waters, or
from foreign waters, or from aquaculture enterprises, will be
sufficient to rebut the presumption. This presumption does not apply to
fish being sorted on deck.
Subpart D--Management Measures for the Atlantic Sea Scallop Fishery
Sec. 648.50 Shell-height standard.
(a) Minimum shell height. The minimum shell height for in-shell
scallops that may be landed, or possessed at or after landing, is 3.5
inches (89 mm). Shell height is a straight line measurement from the
hinge to the outermost part of the shell, that is, the edge farthest
away from the hinge.
(b) Compliance and sampling. Compliance with the minimum shell-
height standard will be determined by inspection and enforcement at or
after landing, including the time when the scallops are received or
possessed by a dealer or person acting in the capacity of a dealer as
follows: An authorized officer will take samples of 40 scallops each,
at random, from the total amount of scallops in possession. The person
in possession of the scallops may request that as many as 10 samples
(400 scallops) be examined as a sample group. A sample group fails to
comply with the standard if more than 10 percent of all scallops
sampled are less than the shell height specified. The total amount of
scallops in possession will be deemed in violation of this subpart and
subject to forfeiture, if the sample group
[[Page 34990]]
fails to comply with the standard. All scallops will be subject to
inspection and enforcement, in accordance with these compliance and
sampling procedures, up to and including the time when a dealer
receives or possesses scallops for a commercial purpose.
Sec. 648.51 Gear and crew restrictions.
(a) Trawl vessel gear restrictions. Trawl vessels in possession of
more than 40 lb (18.14 kg) of shucked, or 5 bu (176.2 L) of in-shell
scallops, trawl vessels fishing for scallops, and trawl vessels issued
a limited access scallop permit under Sec. 648.4(a)(2), while fishing
under or subject to the DAS allocation program for scallops and
authorized to fish with or possess on board trawl nets pursuant to
Sec. 648.51(f), must comply with the following:
(1) Maximum sweep. The trawl sweep of nets in use by or available
for immediate use, as specified in paragraph (a)(2)(iii) of this
section, shall not exceed 144 ft (43.9 m) as measured by the total
length of the footrope that is directly attached to the webbing of the
net.
(2) Net requirements--(i) Minimum mesh size. The mesh size for any
scallop trawl net in all areas shall not be smaller than 5.5 inches
(13.97 cm).
(ii) Mesh stowage. Same as Sec. 648.23(b).
(iii) Measurement of mesh size. Mesh size is measured by using a
wedge-shaped gauge having a taper of 2 cm in 8 cm and a thickness of
2.3 mm, inserted into the meshes under a pressure or pull of 5 kg. The
mesh size is the average of the measurements of any series of 20
consecutive meshes for nets having 75 or more meshes, and 10
consecutive meshes for nets having fewer than 75 meshes. The mesh in
the regulated portion of the net will be measured at least five meshes
away from the lacings running parallel to the long axis of the net.
(3) Chafing gear and other gear obstructions--(i) Net obstruction
or constriction. A fishing vessel may not use any device or material,
including, but not limited to, nets, net strengtheners, ropes, lines,
or chafing gear, on the top of a trawl net, except that one splitting
strap and one bull rope (if present), consisting of line and rope no
more than 3 inches (7.62 cm) in diameter, may be used if such splitting
strap and/or bull rope does not constrict in any manner the top of the
trawl net. ``The top of the trawl net'' means the 50 percent of the net
that (in a hypothetical situation) would not be in contact with the
ocean bottom during a tow if the net were laid flat on the ocean floor.
For the purpose of this paragraph (a)(3), head ropes shall not be
considered part of the top of the trawl net.
(ii) Mesh obstruction or constriction. A fishing vessel may not use
any mesh configuration, mesh construction, or other means on or in the
top of the net, as defined in paragraph (a)(3)(i) of this section, if
it obstructs the meshes of the net in any manner.
(iii) A fishing vessel may not use or possess a net capable of
catching scallops in which the bars entering or exiting the knots twist
around each other.
(b) Dredge vessel gear restrictions. All dredge vessels fishing for
or in possession of more than 40 lb (18.14 kg) of shucked, or 5 bu
(176.2 L) of in-shell scallops, and all dredge vessels issued a limited
access scallop permit and fishing under the DAS Program, with the
exception of hydraulic clam dredges and mahogany quahog dredges in
possession of 400 lb (181.44 kg) of scallops, or less, must comply with
the following restrictions:
(1) Maximum dredge width. The combined dredge width in use by or in
possession on board such vessels shall not exceed 31 ft (9.4 m)
measured at the widest point in the bail of the dredge, except as
provided under paragraph (e) of this section. However, component parts
may be on board the vessel such that they do not conform with the
definition of ``dredge or dredge gear'' in Sec. 648.2, i.e., the metal
ring bag and the mouth frame, or bail, of the dredge are not attached,
and such that no more than one complete spare dredge could be made from
these components parts.
(2) Minimum mesh size. (i) The mesh size of net material on the top
of a scallop dredge in use by or in possession of such vessels shall
not be smaller than 5.5 inches (13.97 cm).
(ii) Mesh size is measured as provided in paragraph (a)(2)(iii) of
this section.
(3) Minimum ring size. (i) The inside ring size of a scallop dredge
in use by or in possession of such vessels shall not be smaller than
3.5 inches (89 mm).
(ii) Ring size is determined by measuring the shortest straight
line passing through the center of the ring from one inside edge to the
opposite inside edge of the ring. The measurement shall not include
normal welds from ring manufacturing or links. The rings to be measured
will be at least five rings away from the mouth, and at least two rings
away from other rigid portions of the dredge.
(4) Chafing gear and other gear obstructions--(i) Chafing gear
restrictions. No chafing gear or cookies shall be used on the top of a
scallop dredge.
(ii) Link restrictions. No more than double links between rings
shall be used in or on all parts of the dredge bag, except the dredge
bottom. No more than triple linking shall be used in or on the dredge
bottom portion and the diamonds. Damaged links that are connected to
only one ring, i.e., ``hangers,'' are allowed, unless they occur
between two links that both couple the same two rings. Dredge rings may
not be attached via links to more than four adjacent rings. Thus,
dredge rings must be rigged in a configuration such that, when a series
of adjacent rings are held horizontally, the neighboring rings form a
pattern of horizontal rows and vertical columns. (A copy of a diagram
showing a schematic of a legal dredge ring pattern is available upon
request to the Office of the Regional Director).
(iii) Dredge or net obstructions. No material, device, net, dredge,
ring, or link configuration or design shall be used if it results in
obstructing the release of scallops that would have passed through a
legal sized and configured net and dredge, as described in this part,
that did not have in use any such material, device, net, dredge, ring
link configuration or design.
(iv) Twine top restrictions. Vessels issued limited access scallop
permits that are fishing for scallops under the DAS Program are also
subject to the following restrictions:
(A) If a vessel is rigged with more than one dredge, or if rigged
with only one dredge, such dredge is greater than 8 ft (2.44 m) in
width, there must be at least seven rows of non-overlapping steel rings
unobstructed by netting or any other material, between the terminus of
the dredge (club stick) and the net material on the top of the dredge
(twine top).
(B) For vessels rigged with only one dredge, and such dredge is
less than 8 ft (2.44 m) in width, there must be at least four rows of
non-overlapping steel rings unobstructed by netting or any other
material between the club stick and the twine top of the dredge. (A
copy of a diagram showing a schematic of a legal dredge with twine top
is available from the Regional Director upon request).
(c) Crew restrictions. Limited access vessels participating in or
subject to the scallop DAS allocation program may have no more than
seven people aboard, including the operator, when not docked or moored
in port, unless participating in the small dredge program specified in
paragraph (e) of this section, or otherwise authorized by the Regional
Director.
[[Page 34991]]
(d) Sorting and shucking machines. (1) Shucking machines are
prohibited on all limited access vessels fishing under the scallop DAS
program or any vessel in possession of more than 400 lb (181.44 kg) of
scallops, unless the vessel has not been issued a limited access
scallop permit and fishes exclusively in state waters.
(2) Sorting machines are prohibited on limited access vessels
fishing under the scallop DAS program that shuck scallops at sea.
(e) Small dredge program restrictions. Any vessel owner whose
vessel is assigned to either the part-time or occasional category may
request, in the application for the vessel's annual permit, to be
placed in one category higher. Vessel owners making such a request will
be placed in the appropriate category for the entire year, if they
agree to comply with the following restrictions, in addition to and
notwithstanding other restrictions of this part, when fishing under the
DAS program described in Sec. 648.53, or in possession of more than 400
lb (181.44 kg) of shucked, or 50 bu (176.2 L) of in-shell scallops:
(1) The vessel must fish exclusively with one dredge no more than
10.5 ft (3.2 m) in width.
(2) The vessel may not have more than one dredge on board or in
use.
(3) The vessel may have no more than five people, including the
operator, on board.
(f) Restrictions on use of trawl nets--(1) Prohibition on use of
trawl nets. Vessels issued a limited access scallop permit fishing for
scallops under the DAS allocation program may not fish with, possess on
board, or land scallops while in possession of trawl nets, unless such
vessels have on board a valid letter of authorization to use trawl nets
issued under paragraphs (f)(2) and (3) of this section.
(2) Eligibility for a letter of authorization to use trawl nets. To
be eligible for a letter of authorization to use trawl nets, a vessel
may not have fished for scallops with a scallop dredge from January 1,
1988, to the present, except pursuant to a letter of authorization
issued pursuant to paragraph (f)(3) of this section. Only vessels that
were issued 1995 limited access scallop permits or that were eligible
to be issued such a permit, and for which a determination has been made
in 1995, except as provided in paragraph (f)(4) of this section, are
eligible to receive a letter of authorization.
(3) Authorization to use trawl nets. Vessels determined to have met
the criteria set forth in paragraph (f)(2) of this section for a letter
of authorization shall be issued a letter of authorization by the
Regional Director. Such letter must be carried on board the vessel at
all times. In subsequent years, eligibility for this exemption will be
indicated on the vessel's permit.
(4) Authorization to use trawl nets by replacement vessels. To be
eligible for a letter of authorization to use trawl nets, any
replacement vessel of a vessel authorized to fish for scallops with
trawl nets must meet the eligibility requirements of paragraph (f)(2)
of this section and have on board a valid letter of authorization
issued under paragraph (f)(3) of this section. The letter of
authorization must be requested at the time the vessel owner initially
applies for a permit for the replacement vessel.
Sec. 648.52 Possession restrictions.
(a) Owners or operators of vessels with a limited access scallop
permit that have declared out of the DAS program as specified in
Sec. 648.10, or have used up their DAS allocations and vessels
possessing a general scallop permit, unless exempted under the state
waters exemption program described under Sec. 648.54, are prohibited
from possessing or landing per trip more than 400 lb (181.44 kg) of
shucked, or 50 bu (176.2 L) of in-shell scallops, with not more than
one scallop trip allowable in any calendar day.
(b) Owners or operators of vessels without a scallop permit, except
vessels fishing for scallops exclusively in state waters, are
prohibited from possessing or landing per trip, more than 40 lb (18.14
kg) of shucked, or 5 bu (176.2 L) of in-shell scallops. Owners or
operators of vessels without a scallop permit are prohibited from
selling, bartering, or trading scallops harvested from Federal waters.
Sec. 648.53 DAS allocations.
(a) Assignment to DAS categories. For each fishing year, each
vessel issued a limited access scallop permit shall be assigned to the
DAS category (full-time, part-time, or occasional) it was assigned in
the preceding fishing year. Limited access scallop permits will
indicate which category the vessel is assigned to. Vessels are
prohibited from fishing for, landing per trip, or possessing more than
400 lb (181.44 kg) of shucked, or 50 bu (176.2 L) of in-shell scallops
once their allocated number of DAS, as specified under paragraph (b) of
this section, are used up.
(b) DAS allocations. Each vessel qualifying for one of the three
categories specified in paragraph (a) of this section shall be
allocated, annually, the maximum number of DAS it may participate in
the limited access scallop fishery, according to its category. A vessel
whose owner/operator has declared it out of the scallop fishery
pursuant to the provisions of Sec. 648.10, or has used up its allocated
DAS, may leave port without being assessed a DAS, so long as it does
not possess or land more than 400 lb (181.44 kg) of shucked, or 50 bu
(176.2 L) of in-shell scallops, and complies with the other
requirements of this part. The annual allocations of DAS for each
category of vessel for the fishing years indicated are as follows:
----------------------------------------------------------------------------------------------------------------
1995-96 and 1998-99 and
DAS category 1996-97 1997-98 1999-2000 2000+
----------------------------------------------------------------------------------------------------------------
Full-time................................................... 182 164 142 120
Part-time................................................... 82 66 57 48
Occasional.................................................. 16 14 12 10
----------------------------------------------------------------------------------------------------------------
(c) Adjustments in annual DAS allocations. Adjustments or changes
in annual DAS allocations, if required to meet fishing mortality
reduction goals, may be made following a reappraisal and analysis under
the framework provisions specified in Sec. 648.55.
(d) End-of-year carry-over. Limited access vessels with unused DAS
on the last day of February of any year may carry over a maximum of 10
DAS into the next year. At no time may more than 10 DAS be carried
over.
(e) Accrual of DAS. DAS shall accrue in hourly increments, with all
partial hours counted as full hours.
(f) Good Samaritan credit. Limited access vessels fishing under the
DAS program and that spend time at sea assisting in a USCG search and
rescue operation or assisting the USCG in
[[Page 34992]]
towing a disabled vessel, and that can document the occurrence through
the USCG, will not accrue DAS for the time documented.
Sec. 648.54 State waters exemption.
(a) DAS exemption. Any vessel issued a limited access scallop
permit is exempt from the DAS requirements specified in Sec. 648.54(c)
while fishing exclusively landward of the outer boundary of a state's
waters, provided the vessel complies with paragraphs (c) through (f) of
this section.
(b) Gear restriction exemption--(1) Limited access permits. Any
vessel issued a limited access scallop permit that is exempt from the
DAS requirements of Sec. 648.53(c) under paragraph (a) of this section
is also exempt from the gear restrictions specified in Sec. 648.51 (a),
(b), and (e) (1) and (2) while fishing exclusively landward of the
outer boundary of the waters of a state that has been determined by the
Regional Director under paragraph (b)(3) of this section to have a
scallop fishery and a scallop conservation program that does not
jeopardize the fishing mortality/effort reduction objectives of the
Scallop FMP, provided the vessel complies with paragraphs (c) through
(f) of this section.
(2) General permits. Any vessel issued a general scallop permit is
exempt from the gear restrictions specified in Sec. 648.51 (a), (b),
and (e) (1) and (2) while fishing exclusively landward of the outer
boundary of the waters of a state that has been determined by the
Regional Director under paragraph (b)(3) of this section to have a
scallop fishery and a scallop conservation program that does not
jeopardize the fishing mortality/effort reduction objectives of the
Scallop FMP, provided the vessel complies with paragraphs (d) through
(f) of this section.
(3) State eligibility for gear exemption. (i) A state is eligible
to have vessels fishing exclusively landward of the outer boundary of
the waters of that state exempted from the gear requirements specified
in Sec. 648.51 (a), (b), and (e) (1) and (e)(2), if it has a scallop
fishery and a scallop conservation program that does not jeopardize the
fishing mortality/effort reduction objectives of the Scallop FMP.
(ii) The Regional Director shall determine which states have a
scallop fishery and which of those states have a scallop conservation
program that does not jeopardize the fishing mortality/effort reduction
objectives of the Scallop FMP.
(iii) Maine, New Hampshire, and Massachusetts have been determined
by the Regional Director to have scallop fisheries and scallop
conservation programs that do not jeopardize the fishing mortality/
effort reduction objectives of the Scallop FMP. These states must
immediately notify the Regional Director of any changes in their
respective scallop conservation program. The Regional Director will
review these changes and, if a determination is made that the state's
conservation program jeopardizes the fishing mortality/effort reduction
objectives of the Scallop FMP, or that the state no longer has a
scallop fishery, the Regional Director shall publish a final rule in
the Federal Register amending this paragraph (b)(3)(iii) to eliminate
the exemption for that state. The Regional Director may determine that
other states have scallop fisheries and scallop conservation programs
that do not jeopardize the fishing mortality/effort reduction
objectives of the Scallop FMP. In such case, the Regional Director
shall publish a final rule in the Federal Register amending this
paragraph (b)(3)(iii) to provide the exemption for such states.
(c) Notification requirements. Vessels fishing under the exemptions
provided by paragraphs (a) and/or (b) of this section must notify the
Regional Director in accordance with the provisions of Sec. 648.10(f).
(d) Restriction on fishing in the EEZ. A vessel fishing under a
state water's exemption may not fish in the EEZ during that time.
(e) Duration of exemption. An exemption expires upon a change in
the vessel's name or ownership.
(f) Applicability of other provisions of this part. A vessel
fishing under the exemptions provided by paragraphs (a) and/or (b) of
this section remains subject to all other requirements of this part.
Sec. 648.55 Framework adjustments to management measures.
(a) Annually, upon request from the NEFMC, but at a minimum in the
years 1996 and 1999, the Regional Director will provide the NEFMC with
information on the status of the scallop resource.
(b) Within 60 days of receipt of that information, the NEFMC PDT
shall assess the condition of the scallop resource to determine the
adequacy of the total allowable DAS reduction schedule, described in
Sec. 648.53(b), to achieve the target fishing mortality rate. In
addition, the PDT shall make a determination whether other resource
conservation issues exist that require a management response in order
to meet the goals and objectives outlined in the Scallop FMP. The PDT
shall report its findings and recommendations to the NEFMC. In its
report to the NEFMC, the PDT shall provide the appropriate rationale
and economic and biological analysis for its recommendation, utilizing
the most current catch, effort, and other relevant data from the
fishery.
(c) After receiving the PDT findings and recommendations, the NEFMC
shall determine whether adjustments to, or additional management
measures are necessary to meet the goals and objectives of the Scallop
FMP. After considering the PDT's findings and recommendations, or at
any other time, if the NEFMC determines that adjustments to, or
additional management measures are necessary, it shall develop and
analyze appropriate management actions over the span of at least two
NEFMC meetings. The NEFMC shall provide the public with advance notice
of the availability of both the proposals and the analyses, and
opportunity to comment on them prior to and at the second NEFMC
meeting. The NEFMC's recommendation on adjustments or additions to
management measures must come from one or more of the following
categories:
(1) DAS changes.
(2) Shell height.
(3) Offloading window reinstatement.
(4) Effort monitoring.
(5) Data reporting.
(6) Trip limits.
(7) Gear restrictions.
(8) Permitting restrictions.
(9) Crew limits.
(10) Small mesh line.
(11) Onboard observers.
(12) Any other management measures currently included in the FMP.
(d) After developing management actions and receiving public
testimony, the NEFMC shall make a recommendation to the Regional
Director. The NEFMC's recommendation must include supporting rationale
and, if management measures are recommended, an analysis of impacts and
a recommendation to the Regional Director on whether to publish the
management measures as a final rule. If the NEFMC recommends that the
management measures should be published as a final rule, the NEFMC must
consider at least the following factors and provide support and
analysis for each factor considered:
(1) 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.
(2) Whether there has been adequate notice and opportunity for
participation by the public and members of the
[[Page 34993]]
affected industry in the development of the NEFMC's recommended
management measures.
(3) Whether there is an immediate need to protect the resource.
(4) Whether there will be a continuing evaluation of management
measures adopted following their promulgation as a final rule.
(e) If the NEFMC's recommendation includes adjustments or additions
to management measures, and if, after reviewing the NEFMC's
recommendation and supporting information:
(1) The Regional Director concurs with the NEFMC's recommended
management measures and determines that the recommended management
measures may be published as a final rule based on the factors
specified in paragraph (d) of this section, the action will be
published in the Federal Register as a final rule; or
(2) The Regional Director concurs with the NEFMC's recommendation
and determines that the recommended management measures should be
published first as a proposed rule, the action will be published as a
proposed rule in the Federal Register. After additional public comment,
if the Regional Director concurs with the NEFMC recommendation, the
action will be published as a final rule in the Federal Register; or
(3) The Regional Director does not concur, the NEFMC will be
notified, in writing, of the reasons for the non-concurrence.
(f) 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 Act.
Subpart E--Management Measures for the Atlantic Surf Clam and Ocean
Quahog Fisheries
Sec. 648.70 Annual individual allocations.
(a) General. (1) For each fishing year, the Regional Director shall
determine the allocation of surf clams and ocean quahogs for each
vessel owner issued an allocation for the preceding fishing year, by
multiplying the quotas specified for each species by the Regional
Director under Sec. 648.71 by the allocation percentage, specified for
that owner on the allocation permit for the preceding fishing year,
adjusted to account for any transfer pursuant to paragraph (b) of this
section. These allocations shall be made in the form of an allocation
permit specifying for each species the allocation percentage and the
allocation in bushels. Such permits shall be issued on or before
December 15, to the registered holders who were assigned an allocation
by November 1. The total number of bushels of allocation shall be
divided by 32 to determine the appropriate number of cage tags to be
issued or acquired under Sec. 648.75. Amounts of allocation 0.5 or
smaller created by this division shall be rounded downward to the
nearest whole number and amounts of allocation greater than 0.5 created
by this division shall be rounded upward to the nearest whole number so
that allocations are specified in whole cages. An allocation permit is
only valid for the entity for which it is issued.
(2) The Regional Director may, after publication of a fee
notification in the Federal Register, charge a permit fee before
issuance of the permit to recover administrative expenses. Failure to
pay the fee will preclude issuance of the permit.
(b) Transfers--(1) Allocation percentage. Subject to the approval
of the Regional Director, part or all of an allocation percentage may
be transferred, in amounts equivalent to not less than 160 bu (8,500 L)
(i.e., 5 cages) in the year in which the transfer is made, to any
person eligible to own a documented vessel under the terms of 46 U.S.C.
12102(a). Approval of a transfer by the Regional Director and for a new
allocation permit reflecting that transfer may be requested by
submitting a written application for approval of the transfer and for
issuance of a new allocation permit to the Regional Director at least
10 days before the date on which the applicant desires the transfer to
be effective, in the form of a completed transfer log supplied by the
Regional Director. The transfer is not effective until the new holder
receives a new or revised annual allocation permit from the Regional
Director. An application for transfer may not be made between October
15 and December 31 of each year.
(2) Cage tags. Cage tags issued pursuant to Sec. 648.75 may be
transferred in quantities of not less than 5 tags at any one time,
subject to the restrictions and procedure specified in paragraph (b)(1)
of this section; provided that application for such cage tag transfers
may be made at any time before December 10 of each year and the
transfer is effective upon the receipt by the transferee of written
authorization from the Regional Director.
(3) Review. If the Regional Director determines that the applicant
has been issued a Notice of Permit Sanction for a violation of the
Magnuson Act that has not been resolved, he/she may decline to approve
such transfer pending resolution of the matter.
Sec. 648.71 Catch quotas.
(a) Surf clams. The amount of surf clams that may be caught
annually by fishing vessels subject to these regulations will be
specified by the Assistant Administrator, on or about December 1 of
each year, within the range of 1.85 to 3.4 million bu (98.5 to 181
million L).
(1) Establishing quotas. (i) Prior to the beginning of each year,
the MAFMC, following an opportunity for public comment, will recommend
to the Assistant Administrator quotas and estimates of DAH and DAP
within the ranges specified. In selecting the quota, the MAFMC shall
consider current stock assessments, catch reports, and other relevant
information concerning:
(A) Exploitable and spawning biomass relative to the OY.
(B) Fishing mortality rates relative to the OY.
(C) Magnitude of incoming recruitment.
(D) Projected effort and corresponding catches.
(E) Geographical distribution of the catch relative to the
geographical distribution of the resource.
(F) Status of areas previously closed to surf clam fishing that are
to be opened during the year and areas likely to be closed to fishing
during the year.
(ii) The quota shall be set at that amount that is most consistent
with the objectives of the Atlantic Surf Clam and Ocean Quahog FMP. The
Assistant Administrator may set quotas at quantities different from the
MAFMC's recommendations only if he/she can demonstrate that the MAFMC's
recommendations violate the national standards of the Magnuson Act and
the objectives of the Atlantic Surf Clam and Ocean Quahog FMP.
(2) Report. Prior to the beginning of each year, the Regional
Director shall prepare a written report, based on the latest available
stock assessment report prepared by NMFS, data reported by harvesters
and processors according to these regulations, and other relevant data.
The report will include consideration of:
(i) Exploitable biomass and spawning biomass relative to OY.
(ii) Fishing mortality rates relative to OY.
(iii) Magnitude of incoming recruitment.
(iv) Projected effort and corresponding catches.
(v) Status of areas previously closed to surf clams fishing that
are to be opened during the year and areas likely to be closed to
fishing during the year.
[[Page 34994]]
(vi) Geographical distribution of the catch relative to the
geographical distribution of the resource.
(3) Public review. Based on the information presented in the
report, and in consultation with the MAFMC, the Assistant Administrator
shall propose an annual surf clam quota and an annual ocean quahog
quota and shall publish them in the Federal Register. Comments on the
proposed annual quotas may be submitted to the Regional Director within
30 days after publication. The Assistant Administrator shall consider
all comments, determine the appropriate annual quotas, and publish the
annual quotas in the Federal Register on or about December 1 of each
year.
(b) Ocean quahogs. The amount of ocean quahogs that may be caught
by fishing vessels subject to these regulations shall be specified
annually by the Assistant Administrator, on or about December 1, within
the range of 4 to 6 million bu (213 to 319.4 million L), following the
same procedures set forth in paragraph (a) of this section for surf
clams.
Sec. 648.72 Minimum surf clam size.
(a) Minimum length. The minimum length for surf clams is 4.75
inches (12.065 cm).
(b) Determination of compliance. No more than 50 surf clams in any
cage may be less than 4.75 inches (12.065 cm) in length. If more than
50 surf clams in any inspected cage of surf clams are less than 4.75
inches (12.065 cm) in length, all cages landed by the same vessel from
the same trip are deemed to be in violation of the minimum size
restriction.
(c) Suspension. Upon the recommendation of the MAFMC, the Regional
Director may suspend annually, by publication in the Federal Register,
the minimum shell-height standard, unless discard, catch, and survey
data indicate that 30 percent of the surf clams are smaller than 4.75
inches (12.065 cm) and the overall reduced shell height is not
attributable to beds where the growth of individual surf clams has been
reduced because of density dependent factors.
(d) Measurement. Length is measured at the longest dimension of the
surf clam shell.
Sec. 648.73 Closed areas.
(a) Areas closed because of environmental degradation. Certain
areas are closed to all surf clam and ocean quahog fishing because of
adverse environmental conditions. These areas will remain closed until
the Assistant Administrator determines that the adverse environmental
conditions no longer exist. If additional areas are identified by the
Assistant Administrator as being contaminated by the introduction or
presence of hazardous materials or pollutants, they may be closed by
the Assistant Administrator in accordance with paragraph (c) of this
section. The areas closed are:
(1) Boston Foul Ground. The waste disposal site known as the
``Boston Foul Ground'' and located at 42 deg.25'36## N. lat.,
70 deg.35#00## W. long., with a radius of 1 nm in every direction from
that point.
(2) New York Bight. The polluted area and waste disposal site known
as the ``New York Bight Closure'' and located at 40 deg.25#04## N.
lat., 73 deg.42#38## W. long., and with a radius of 6 nm in every
direction from that point, extending farther northwestward, westward,
and southwestward between a line from a point on the arc at
40 deg.31#00## N. lat., 73 deg.43#38## W. long., directly toward
Atlantic Beach Light in New York to the limit of state territorial
waters of New York; and a line from a point on the arc at
40 deg.19#48## N. lat., 73 deg.45#42## W. long., to a point at the
limit of the state territorial waters of New Jersey at 40 deg.14#00##
N. lat., 73 deg.55#42## W. long.
(3) 106 Dumpsite. The toxic industrial dump site known as the ``106
Dumpsite'' and located between 38 deg.40#00## and 39 deg.00#00## N.
lat. and between 72 deg.00#00## and 72 deg.30#00## W. long.
(b) Areas closed because of small surf clams. Areas may be closed
because they contain small surf clams.
(1) Closure. The Assistant Administrator may close an area to surf
clams and ocean quahog fishing if he/she determines, based on logbook
entries, processors' reports, survey cruises, or other information,
that the area contains surf clams of which:
(i) Sixty percent or more are smaller than the minimum size (4.5
inches (11.43 cm)); and
(ii) Not more than 15 percent are larger than 5.5 inches (13.97 cm)
in size.
(2) Reopening. The Assistant Administrator may reopen areas or
parts of areas closed under paragraph (b)(1) of this section if he/she
determines, based on survey cruises or other information, that:
(i) The average length of the dominant (in terms of weight) size
class in the area to be reopened is equal to or greater than 4.75
inches (12.065 cm); or
(ii) The yield or rate of growth of the dominant shell-height class
in the area to be reopened would be significantly enhanced through
selective, controlled, or limited harvest of surf clams in the area.
(c) Procedure. (1) The Regional Director may hold a public hearing
on the proposed closure or reopening of any area under paragraph (a) or
(b) of this section. The Assistant Administrator shall publish
notification in the Federal Register of any proposed area closure or
reopening, including any restrictions on harvest in a reopened area.
Comments on the proposed closure or reopening may be submitted to the
Regional Director within 30 days after publication. The Assistant
Administrator shall consider all comments and publish the final
notification of closure or reopening, and any restrictions on harvest,
in the Federal Register. Any adjustment to harvest restrictions in a
reopened area shall be made by notification in the Federal Register.
The Regional Director shall send notice of any action under this
paragraph (c)(1) to each surf clam and ocean quahog processor and to
each surf clam and ocean quahog permit holder.
(2) If the Regional Director determines, as the result of testing
by state, Federal, or private entities, that a closure of an area under
paragraph (a) of this section is necessary to prevent any adverse
effects fishing may have on the public health, he/she may close the
area for 60 days by publication of notification in the Federal
Register, without prior comment or public hearing. If an extension of
the 60-day closure period is necessary to protect the public health,
the hearing and notice requirements of paragraph (c)(1) of this section
shall be followed.
Sec. 648.74 Shucking at sea.
(a) Observers. (1) The Regional Director may allow the shucking of
surf clams or ocean quahogs at sea if he/she determines that an
observer carried aboard the vessel can measure accurately the total
amount of surf clams and ocean quahogs harvested in the shell prior to
shucking.
(2) Any vessel owner may apply in writing to the Regional Director
to shuck surf clams or ocean quahogs at sea. The application shall
specify: Name and address of the applicant, permit number of the
vessel, method of calculating the amount of surf clams or ocean quahogs
harvested in the shell, vessel dimensions and accommodations, and
length of fishing trip.
(3) The Regional Director shall provide an observer to any vessel
owner whose application is approved. The owner shall pay all reasonable
expenses of carrying the observer on board the vessel.
(4) Any observer shall certify at the end of each trip the amount
of surf
[[Page 34995]]
clams or ocean quahogs harvested in the shell by the vessel. Such
certification shall be made by the observer's signature on the daily
fishing log required by Sec. 648.7.
(b) Conversion factor. (1) Based on the recommendation of the
MAFMC, the Regional Director may allow shucking at sea of surf clams or
ocean quahogs, with or without an observer, if he/she determines a
conversion factor for shucked meats to calculate accurately the amount
of surf clams or ocean quahogs harvested in the shell.
(2) The Regional Director shall publish notification in the Federal
Register specifying a conversion factor together with the data used in
its calculation for a 30-day comment period. After consideration of the
public comments and any other relevant data, the Regional Director may
publish final notification in the Federal Register specifying the
conversion factor.
(3) If the Regional Director makes the determination specified in
paragraph (b)(1) of this section, he/she may authorize the vessel owner
to shuck surf clams or ocean quahogs at sea. Such authorization shall
be in writing and be carried aboard the vessel.
Sec. 648.75 Cage identification.
(a) Tagging. Before offloading, all cages that contain surf clams
or ocean quahogs must be tagged with tags acquired annually under
paragraph (b) of this section. A tag must be fixed on or as near as
possible to the upper crossbar of the cage for every 60 ft \3\ (1,700
L), or portion thereof, of the cage. A tag or tags must not be removed
until the cage is emptied by the processor, at which time the processor
must promptly remove and retain the tag(s) for collection or disposal
as specified by the Regional Director.
(b) Issuance. The Regional Director will issue a supply of tags to
each individual vessel owner qualifying for an allocation under
Sec. 648.70 prior to the beginning of each fishing year or he/she may
specify, in the Federal Register, a vendor from whom the tags shall be
purchased. The number of tags will be based on the owner's allocation.
Each tag represents 32 bu (1,700 L) of allocation.
(c) Expiration. Tags will expire at the end of the fishing year for
which they are issued, or if rendered null and void in accordance with
15 CFR part 904.
(d) Return. Tags that have been rendered null and void must be
returned to the Regional Director, if possible.
(e) Loss. Loss or theft of tags must be reported by the owner,
numerically identifying the tags to the Regional Director by telephone
as soon as the loss or theft is discovered and in writing within 24
hours. Thereafter, the reported tags shall no longer be valid for use
under this part.
(f) Replacement. Lost or stolen tags may be replaced by the
Regional Director if proper notice of the loss is provided by the
person to whom the tags were issued. Replacement tags may be purchased
from the Regional Director or a vendor with a written authorization
from the Regional Director.
(g) Transfer. See Sec. 648.70(b)(2).
(h) Presumptions. Surf clams and ocean quahogs found in cages
without a valid state tag are deemed to have been harvested in the EEZ
and to be part of an individual's allocation, unless the individual
demonstrates that he/she has surrendered his/her Federal vessel permit
issued under Sec. 648.4(a)(4) and conducted fishing operations
exclusively within waters under the jurisdiction of any state. Surf
clams and ocean quahogs in cages with a Federal tag or tags, issued and
still valid pursuant to this section, affixed thereto are deemed to
have been harvested by the individual allocation holder to whom the
tags were issued under Sec. 648.75(b) or transferred under
Sec. 648.70(b).
Subpart F--Management Measures for the NE Multispecies Fishery
Sec. 648.80 Regulated mesh areas and restrictions on gear and methods
of fishing.
All vessels fishing for, harvesting, possessing, or landing NE
multispecies in or from the EEZ and all vessels holding a multispecies
permit must comply with the following minimum mesh size, gear, and
methods of fishing requirements, unless otherwise exempted or
prohibited.
(a) Gulf of Maine/Georges Bank (GOM/GB) Regulated Mesh Area.--(1)
Area definition. The GOM/GB Regulated Mesh Area (copies of a map
depicting the area are available from the Regional Director upon
request) is that area:
(i) Bounded on the east by the U.S.-Canada maritime boundary,
defined by straight lines connecting the following points in the order
stated:
Gulf of Maine/Georges Bank Regulated Mesh Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
G1.......................... (\1\) (\1\)
G2............................................ 43 deg.58' 67 deg.22'
G3............................................ 42 deg.53.1
' 67 deg.44.4
'
G4............................................ 42 deg.31' 67 deg.28.1
'
G5............................................ 41 deg.18.6
' 66 deg.24.8
'
------------------------------------------------------------------------
\1\ The intersection of the shoreline and the U.S.-Canada Maritime
Boundary.
(ii) Bounded on the south by straight lines connecting the
following points in the order stated:
----------------------------------------------------------------------------------------------------------------
Point N. Lat. W. Long. Approximate loran C bearings
----------------------------------------------------------------------------------------------------------------
G6.......................... 40 deg.55.5 66 deg.38' 5930-Y-30750 and 9960-Y-43500.
'
G7............................................ 40 deg.45.5 68 deg.00' 9960-Y-43500 and 68 deg.00' W. lat.
'
G8............................................ 40 deg.37' 68 deg.00' 9960-Y-43450 and 68 deg.00' W. lat.
G9............................................ 40 deg.30' 69 deg.00'
NL3........................................... 40 deg.22.7 69 deg.00'
'
NL2........................................... 40 deg.18.7 69 deg.40'
'
NL1........................................... 40 deg.50' 69 deg.40'
G11........................................... 40 deg.50' 70 deg.00'
G12........................................... \1\ 70 deg.
00'
----------------------------------------------------------------------------------------------------------------
\1\ Northward to its intersection with the shoreline of mainland Massachusetts.
(2) Gear restrictions. (i) Minimum mesh size. Except as provided in
paragraphs (a)(2) (iii) and (i) of this section, and unless otherwise
restricted under paragraphs (a) (2)(ii) and (5) of this section, the
minimum mesh size for any trawl net, sink gillnet, Scottish seine,
midwater trawl, or purse seine on a vessel or used by a vessel fishing
under a DAS in the NE multispecies DAS program in the GOM/GB Regulated
Mesh Area is 6-inch (15.24-cm) square or diamond mesh throughout the
entire net. This restriction does not apply to nets or pieces of nets
smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 ft\2\ (0.81 m\2\)), or to
vessels that have not been issued a multispecies permit and that are
fishing exclusively in state waters.
(ii) Large-mesh vessels. When fishing in the GOM/GB regulated mesh
area, the
[[Page 34996]]
minimum mesh size for any sink gillnet on a vessel or used by a vessel
fishing under a DAS in the large-mesh DAS program specified in
Sec. 648.82(b) (6) and (7) is 7-inch (17.78-cm) diamond mesh throughout
the entire net. The minimum mesh size for any trawl net on a vessel or
used by a vessel fishing under a DAS in the large-mesh DAS program is
8-inch (20.32-cm) diamond mesh throughout the entire net. This
restriction does not apply to nets or pieces of nets smaller than 3 ft
(0.9 m) x 3 ft (0.9 m), (9 ft\2\ (0.81 m\2\)), or to vessels that have
not been issued a multispecies permit and that are fishing exclusively
in state waters.
(iii) Other gear and mesh exemptions. The minimum mesh size for any
trawl net, sink gillnet, Scottish seine, midwater trawl, or purse seine
on a vessel or used by a vessel when fishing in the GOM/GB Regulated
Mesh Area while not under the NE multispecies DAS program, but when
under one of the exemptions specified in paragraphs (a)(3), (a)(4),
(a)(6), (a)(8), (a)(9), (d), (e), (h), and (i) of this section, is set
forth in the respective paragraph specifying the exemption. Vessels
that are not fishing under one of these exemptions, under the scallop
state waters exemption specified in Sec. 648.54, or under a NE
multispecies DAS, are prohibited from fishing in the GOM/GB regulated
mesh area.
(3) Small Mesh Northern Shrimp Fishery Exemption Area. Vessels
subject to the minimum mesh size restrictions specified in paragraph
(a)(2) of this section may fish for, harvest, possess, or land northern
shrimp in the Small Mesh Northern Shrimp Fishery Exemption Area with
nets with a mesh size smaller than the minimum size specified, if the
vessel complies with the requirements of paragraphs (a)(3) (i) through
(iii) of this section. The Small Mesh Northern Shrimp Fishery Exemption
Area is defined by straight lines connecting the following points in
the order stated (copies of a map depicting the area are available from
the Regional Director upon request):
Small Mesh Northern Shrimp Fishery Exemption Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
SM1................... 41 deg.35' 70 deg.00'
SM2................... 41 deg.35' 69 deg.40'
SM3................... 42 deg.49.5' 69 deg.40'
SM4................... 43 deg.12' 69 deg.00'
SM5................... 43 deg.41' 68 deg.00'
G2.................... 43 deg.58' 67 deg.22'; (the U.S.-
Canada maritime
Boundary).
G1.................... (\1\) (\1\)
------------------------------------------------------------------------
\1\ Northward along the irregular U.S.-Canada maritime boundary to the
shoreline.
(i) Restrictions on fishing for, possessing, or landing fish other
than shrimp. A vessel fishing in the northern shrimp fishery described
in this section under this exemption may not fish for, possess on
board, or land any species of fish other than shrimp, except for the
following, with the restrictions noted, as allowable bycatch species:
Longhorn sculpin; silver hake--up to two standard totes; monkfish and
monkfish parts--up to 10 percent, by weight, of all other species on
board; and American lobster--up to 10 percent, by weight, of all other
species on board or 200 lobsters, whichever is less.
(ii) Requirement to use a finfish excluder device (FED). A vessel
must have a rigid or semi-rigid grate consisting of parallel bars of
not more than 1-inch (2.54-cm) spacing that excludes all fish and other
objects, except those that are small enough to pass between its bars
into the codend of the trawl, secured in the trawl, forward of the
codend, in such a manner that it precludes the passage of fish or other
objects into the codend without the fish or objects having to first
pass between the bars of the grate, in any net with mesh smaller than
the minimum size specified in paragraph (a)(2) of this section. The net
must have a outlet or hole to allow fish or other objects that are too
large to pass between the bars of the grate to exit out of the net. The
aftermost edge of this outlet or hole must be at least as wide as the
grate at the point of attachment. The outlet or hole must extend
forward from the grate toward the mouth of the net. A funnel of net
material is allowed in the lengthening piece of the net forward of the
grate to direct catch towards the grate. (Copies of a schematic example
of a properly configured and installed FED are available from the
Regional Director upon request.)
(iii) Time restrictions. A vessel may only fish under this
exemption during the northern shrimp season, as established by the
Commission. The northern shrimp season is December 1 through May 30, or
as modified by the Commission.
(4) Cultivator Shoal Whiting Fishery Exemption Area. Vessels
subject to the minimum mesh size restrictions specified in paragraph
(a)(2) of this section may fish with, use, or possess nets in the
Cultivator Shoal Whiting Fishery Exemption Area with a mesh size
smaller than the minimum size specified, if the vessel complies with
the requirements specified in paragraph (a)(4)(i) of this section. The
Cultivator Shoal Whiting Fishery Exemption Area (copies of a map
depicting the area are available from the Regional Director upon
request) is defined by straight lines connecting the following points
in the order stated:
Cultivator Shoal Whiting Fishery Exemption Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
C1............................................ 42 deg.10' 68 deg.10'
C2............................................ 41 deg.30' 68 deg.41'
CI4........................................... 41 deg.30' 68 deg.30'
C3............................................ 41 deg.12.8
' 68 deg.30'
C4............................................ 41 deg.05' 68 deg.20'
C5............................................ 41 deg.55' 67 deg.40'
C1............................................ 42 deg.10' 68 deg.10'
------------------------------------------------------------------------
(i) Requirements. (A) A vessel fishing in the Cultivator Shoal
Whiting Fishery Exemption Area under this exemption must have a letter
of authorization issued by the Regional Director on board and may not
fish for, possess on board, or land any species of fish other than
whiting, except for the following, with the restrictions noted, as
allowable bycatch species: Longhorn sculpin; monkfish and monkfish
parts--up to 10 percent, by weight, of all other species on board; and
American lobster--up to 10 percent by weight of all other species on
board or 200 lobsters, whichever is less.
(B) All nets must comply with a minimum mesh size of 3-inch (7.62
cm) square or diamond mesh applied to the first 160 meshes counted from
the terminus of the net.
(C) Fishing is confined to a season of June 15 through October 31,
unless otherwise specified by notification in the Federal Register.
(D) When transiting through the GOM/GB Regulated Mesh Area
specified under paragraph (a)(1) of this section, any nets with a mesh
size smaller than the minimum mesh size specified in paragraph (a)(2)
of this section must be stowed in accordance with one of the methods
specified in Sec. 648.23(b).
(ii) Sea sampling. The Regional Director shall conduct periodic sea
sampling to determine if there is a need to change the area or season
designation, and to evaluate the bycatch of regulated species,
especially haddock.
(iii) Annual review. The NEFMC shall conduct an annual review of
data to determine if there are any changes in
[[Page 34997]]
area or season designation necessary, and to make appropriate
recommendations to the Regional Director following the procedures
specified in Sec. 648.90 of this part.
(5) Stellwagen Bank/Jeffreys Ledge (SB/JL) Juvenile Protection
Area. Except as provided in paragraphs (a)(3), (d), (e), and (h) of
this section, the minimum mesh size for any trawl net, Scottish seine,
purse seine, or midwater trawl in use, or available for immediate use
as described in Sec. 648.23(b) by a vessel fishing in the following
area is 6-inch (15.24-cm) square or diamond mesh in the last 50 bars of
the codend and extension piece for vessels 45 ft (13.7 m) in length and
less, and in the last 100 bars of the codend and extension piece for
vessels greater than 45 ft (13.7 m) in length.
(i) The SB/JL Juvenile Protection Area (copies of a map depicting
the area are available from the Regional Director upon request) is
defined by straight lines connecting the following points in the order
stated:
Stellwagen Bank Juvenile Protection Area
----------------------------------------------------------------------------------------------------------------
Approximate Loran
Point N. Lat. W. Long. coordinates
----------------------------------------------------------------------------------------------------------------
SB1.......................................................... 42 deg.34.0
' 70 deg.23.5
' 13737 44295
SB2.......................................................... 42 deg.28.8
' 70 deg.39.0
' 13861 44295
SB3.......................................................... 42 deg.18.6
' 70 deg.22.5
' 13810 44209
SB4.......................................................... 42 deg.05.5
' 70 deg.23.3
' 13880 44135
SB5.......................................................... 42 deg.11.0
' 70 deg.04.0
' 13737 44135
SB1.......................................................... 42 deg.34.0
' 70 deg.23.5
' 13737 44295
----------------------------------------------------------------------------------------------------------------
Jeffreys Ledge Juvenile Protection Area
----------------------------------------------------------------------------------------------------------------
Approximate Loran
Point N. Lat. W. Long. coordinates
----------------------------------------------------------------------------------------------------------------
JL1.......................................................... 43 deg.12.7
' 70 deg.00.0
' 13369 44445
JL2.......................................................... 43 deg.09.5
' 70 deg.08.0
' 13437 44445
JL3.......................................................... 42 deg.57.0
' 70 deg.08.0
' 13512 44384
JL4.......................................................... 42 deg.52.0
' 70 deg.21.0
' 13631 44384
JL5.......................................................... 42 deg.41.5
' 70 deg.32.5
' 13752 44352
JL6.......................................................... 42 deg.34.0
' 70 deg.26.2
' 13752 44300
JL7.......................................................... 42 deg.55.2
' 70 deg.00.0
' 13474 44362
JL1.......................................................... 43 deg.12.7
' 70 deg.00.0
' 13369 44445
----------------------------------------------------------------------------------------------------------------
(ii) Fishing for northern shrimp in the SB/JL Juvenile Protection
Area is allowed, subject to the requirements of paragraph (a)(3) of
this section.
(6) Transiting. (i) Vessels fishing in the Small Mesh Northern
Shrimp Fishery Exemption Area and in Small Mesh Area 1/Small Mesh Area
2, as specified in paragraphs (a) (3) and (8) of this section, may
transit through the SB/JL Juvenile Protection Area defined in paragraph
(a)(5) of this section with nets on board that do not conform to the
requirements specified in paragraph (a)(2) or (a)(5) of this section,
provided that the nets are stowed in accordance with one of the methods
specified in Sec. 648.23(b).
(ii) Vessels subject to the minimum mesh size restrictions
specified in paragraph (a)(2) of this section may transit through the
Small Mesh Northern Shrimp Fishery Exemption Area defined in paragraph
(a)(3) of this section with nets on board with a mesh size smaller than
the minimum size specified, provided that the nets are stowed in
accordance with one of the methods specified in Sec. 648.23(b), and
provided the vessel has no fish on board.
(iii) Vessels subject to the minimum mesh size restrictions
specified in paragraph (a)(2) of this section may transit through the
GOM/GB Regulated Mesh Area defined in paragraph (a)(1) of this section
with nets on board with a mesh size smaller than the minimum mesh size
specified and with small mesh exempted species on board, provided that
the following conditions are met:
(A) All nets with a mesh size smaller than the minimum mesh size
specified in paragraph (a)(2) of this section are stowed in accordance
with one of the methods specified in Sec. 648.23(b).
(B) A letter of authorization issued by the Regional Director is on
board.
(C) Vessels do not fish for, possess on board, or land any fish,
except when fishing in the areas specified in paragraphs (a)(4),
(a)(9), (b), and (c) of this section. Vessels may retain exempted small
mesh species as provided in paragraphs (a)(4)(i), (a)(9)(i), (b)(3),
and (c)(3) of this section.
(7) Addition or deletion of exemptions. (i) An exemption may be
added in an existing fishery for which there are sufficient data or
information to ascertain the amount of regulated species bycatch, if
the Regional Director, after consultation with the NEFMC, determines
that the percentage of regulated species caught as bycatch is, or can
be reduced to, less than 5 percent, by weight, of total catch and that
such exemption will not jeopardize fishing mortality objectives. In
determining whether exempting a fishery may jeopardize meeting fishing
mortality objectives, the Regional Director may take into consideration
factors such as, but not limited to, juvenile mortality. A fishery can
be defined, restricted, or allowed by area, gear, season, or other
means determined to be appropriate to reduce bycatch of regulated
species. An existing exemption may be deleted or modified if the
Regional Director determines that the catch of regulated species is
equal to or greater than 5 percent, by weight, of total catch, or that
continuing the exemption may jeopardize meeting fishing mortality
objectives. Notification of additions, deletions or modifications will
be made through issuance of a rule in the Federal Register.
(ii) The NEFMC may recommend to the Regional Director, through the
framework procedure specified in Sec. 648.90(b), additions or deletions
to exemptions for fisheries, either existing or proposed, for which
there may be insufficient data or information for the Regional Director
to determine, without
[[Page 34998]]
public comment, percentage catch of regulated species.
(iii) The Regional Director may, using the process described in
either paragraph (a)(7)(i) or (ii) of this section, authorize an
exemption for a white hake fishery by vessels using regulated mesh or
hook gear. Determination of the percentage of regulated species caught
in such fishery shall not include white hake.
(iv) Exempted fisheries authorized under this paragraph (a)(7) are
subject, at minimum, to the following restrictions:
(A) With the exception of fisheries authorized under paragraph
(a)(7)(iii) of this section, a prohibition on the possession of
regulated species.
(B) A limit on the possession of monkfish or monkfish parts of 10
percent, by weight, of all other species on board.
(C) A limit on the possession of lobsters of 10 percent, by weight,
of all other species on board or 200 lobsters, whichever is less.
(D) A limit on the possession of skate or skate parts in the
Southern New England regulated mesh area described in paragraph (a)(10)
of this section of 10 percent, by weight, of all other species on
board.
(8) Small Mesh Area 1/Small Mesh Area 2. Vessels subject to the
minimum mesh size restrictions specified in paragraph (a)(2) of this
section may fish with or possess nets with a mesh size smaller than the
minimum size specified from July 15 through October 31 when fishing in
Small Mesh Area 1, and from January 1 through June 30 when fishing in
Small Mesh Area 2. A vessel may not fish for, possess on board, or land
any species of fish other than: Butterfish, dogfish, herring, mackerel,
ocean pout, scup, squid, silver hake, and red hake, except for the
following species, with the restrictions noted, as allowable bycatch
species: Longhorn sculpin; monkfish and monkfish parts--up to 10
percent, by weight, of all other species on board; and American
lobster--up to 10 percent, by weight, of all other species on board or
200 lobsters, whichever is less. These areas are defined by straight
lines connecting the following points in the order stated (copies of a
map depicting these areas are available from the Regional Director upon
request):
Small Mesh Area 1
----------------------------------------------------------------------------------------------------------------
Approximate Loran C
Point N. Lat. W. Long. bearings
----------------------------------------------------------------------------------------------------------------
SM1.......................................................... 43 deg.03' 70 deg.27' 13600 25910
SM2.......................................................... 42 deg.57' 70 deg.22' 13600 25840
SM3.......................................................... 42 deg.47' 70 deg.32' 13720 25840
SM4.......................................................... 42 deg.45' 70 deg.29' 13710 25810
SM5.......................................................... 42 deg.43' 70 deg.32' (\1\) 25810
SM6.......................................................... 42 deg.44' 70 deg.39' 13780 (\1\)
SM7.......................................................... 42 deg.49' 70 deg.43' 13780 25910
SM8.......................................................... 42 deg.50' 70 deg.41' 13760 25910
SM9.......................................................... 42 deg.53' 70 deg.43' 13760 25935
SM10......................................................... 42 deg.55' 70 deg.40' 25935 (\1\)
SM11......................................................... 42 deg.59' 70 deg.32' (\1\) 25910
SM1.......................................................... 43 deg.03' 70 deg.27' 13600 25910
----------------------------------------------------------------------------------------------------------------
\1\ 3-mile line
Small Mesh Area 2
----------------------------------------------------------------------------------------------------------------
Approximate Loran C
Point N. Lat. W. Long. bearings
----------------------------------------------------------------------------------------------------------------
SM13......................................................... 43 deg.20.3
' 69 deg.59.4
' 13320 44480
SM14......................................................... 43 deg.25.9
' 69 deg.45.6
' 13200 44480
SM15......................................................... 42 deg.49.5
' 69 deg.40' 13387.5 44298
SM16......................................................... 42 deg.41.5
' 69 deg.40' 13430 44260
SM17......................................................... 42 deg.34.9
' 70 deg.00' 13587 44260
SM13......................................................... 43 deg.20.3
' 69 deg.59.4
' 13320 44480
----------------------------------------------------------------------------------------------------------------
(9) Nantucket Shoals dogfish fishery exemption area. Vessels
subject to the minimum mesh size restrictions specified in paragraph
(a)(2) of this section may fish with, use, or possess nets of mesh
smaller than the minimum size specified in the Nantucket Shoals Dogfish
Fishery Exemption Area, if the vessel complies with the requirements
specified in paragraph (a)(9)(i) of this section. The Nantucket Shoals
Dogfish Fishery Exemption Area (copies of a map depicting this area are
available from the Regional Director upon request) is defined by
straight lines connecting the following points in the order stated:
Nantucket Shoals Dogfish Exemption Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
NS1........................................... 41 deg.45' 70 deg.00'
NS2........................................... 41 deg.45' 69 deg.20'
NS3........................................... 41 deg.30' 69 deg.20'
Cl1........................................... 41 deg.30' 69 deg.23'
NS5........................................... 41 deg.26.5
' 69 deg.20'
NS6........................................... 40 deg.50' 69 deg.20'
NS7........................................... 40 deg.50' 70 deg.00'
NS1........................................... 41 deg.45' 70 deg.00'
------------------------------------------------------------------------
(i) Requirements. (A) A vessel fishing in the Nantucket Shoals
Dogfish Fishery Exemption Area under the exemption must have on board a
letter of authorization issued by the Regional Director and may not
fish for, possess on board, or land any species of fish other than
dogfish, except as provided under paragraph (a)(9)(i)(D) of this
section.
(B) Fishing is confined to June 1 through October 15.
(C) When transitting the GOM/GB regulated mesh area, specified
under paragraph (a)(1) of this section, any nets with a mesh size
smaller than the
[[Page 34999]]
minimum mesh size specified in paragraph (a)(2) of this section must be
stowed and unavailable for immediate use in accordance with
Sec. 648.23(b).
(D) The following species may be retained, with the restrictions
noted, as allowable bycatch species in the Nantucket Shoals Dogfish
Fishery Exemption Area: Longhorn sculpin; silver hake--up to two
standard totes; monkfish and monkfish parts--up to 10 percent, by
weight, of all other species on board; American lobster--up to 10
percent, by weight, of all other species on board or 200 lobsters,
whichever is less; and skate or skate parts--up to 10 percent, by
weight, of all other species on board.
(E) A vessel fishing in the Nantucket Shoals Dogfish Fishery
Exemption Area under the exemption must comply with any additional gear
restrictions specified in the letter of authorization issued by the
Regional Director.
(ii) Sea sampling. The Regional Director may conduct periodic sea
sampling to determine if there is a need to change the area or season
designation, and to evaluate the bycatch of regulated species.
(b) Southern New England (SNE) Regulated Mesh Area--(1) Area
definition. The SNE Regulated Mesh Area (copies of a map depicting this
area are available from the Regional Director upon request) is that
area:
(i) bounded on the east by straight lines connecting the following
points in the order stated:
Southern New England Regulated Mesh Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
G5............................................ 41 deg.18.6
' 66 deg.24.8
'
G6............................................ 40 deg.55.5
' 66 deg.38'
G7............................................ 40 deg.45.5
' 68 deg.00'
G8............................................ 40 deg.37' 68 deg.00'
G9............................................ 40 deg.30.5
' 69 deg.00'
NL3........................................... 40 deg.22.7
' 69 deg.00'
NL2........................................... 40 deg.18.7
' 69 deg.40'
NL1........................................... 40 deg.50' 69 deg.40'
G11........................................... 40 deg.50' 70 deg.00'
G12........................................... ........... \1\ 70 deg.
00'
------------------------------------------------------------------------
\1\ Northward to its intersection with the shoreline of mainland
Massachusetts.
(ii) bounded on the west by the eastern boundary of the Mid-
Atlantic Regulated Mesh Area.
(2) Gear restrictions--(i) Minimum mesh size. Except as provided in
paragraphs (b)(2) (iii) and (i) of this section, and unless otherwise
restricted under paragraph (b)(2)(ii) of this section, the minimum mesh
size for any trawl net, sink gillnet, Scottish seine, purse seine or
midwater trawl, not stowed and not unavailable in use or available for
immediate use in accordance with Sec. 648.23(b) by a vessel fishing
under a DAS in the multispecies DAS program in the SNE regulated mesh
area, is 6-inch (15.24-cm) square or diamond mesh throughout the entire
net. This restriction does not apply to vessels that have not been
issued a multispecies permit and that are fishing exclusively in state
waters.
(ii) Large Mesh vessels. When fishing in the SNE regulated mesh
area, the minimum mesh size for any sink gillnet on a vessel, or used
by a vessel, fishing under a DAS in the Large Mesh DAS program
specified in Sec. 648.82(b) (6) and (7) is 7-inch (17.78-cm) diamond
mesh throughout the entire net. The minimum mesh size for any trawl net
on a vessel or used by a vessel fishing under a DAS in the Large Mesh
DAS program is 8-inch (20.32-cm) diamond mesh throughout the entire
net. This restriction does not apply to nets or pieces of nets smaller
than 3 ft (0.9 m) x 3 ft (0.9 m), (9 ft\2\ (0.81 m\2\)), or to vessels
that have not been issued a multispecies permit and that are fishing
exclusively in state waters.
(iii) Other gear and mesh exemptions. The minimum mesh size for any
trawl net, sink gillnet, Scottish seine, midwater trawl, or purse seine
in use or available for immediate use, as described under
Sec. 648.23(b), by a vessel when not fishing under the NE multispecies
DAS program and when fishing in the SNE regulated mesh area is
specified under the exemptions set forth in paragraphs (b)(3), (c),
(e), (h), and (i) of this section. Vessels that are not fishing in one
of these exemption programs, with exempted gear (as defined under this
part), or under the scallop state waters exemption specified in
Sec. 648.54, or under a NE multispecies DAS, are prohibited from
fishing in the SNE regulated mesh area.
(3) Exemptions--(i) Species exemptions. Vessels subject to the
minimum mesh size restrictions specified in paragraph (b)(2) of this
section may fish for, harvest, possess, or land butterfish, dogfish,
herring, mackerel, ocean pout, scup, shrimp, squid, summer flounder,
silver hake, and weakfish with nets with a mesh size smaller than the
minimum size specified in the SNE Regulated Mesh Area, provided such
vessels comply with the requirements specified in paragraph (b)(3)(ii)
of this section.
(ii) Possession and net stowage requirements. Vessels may possess
regulated species while in possession of nets with mesh smaller than
the minimum size specified in paragraph (b)(2)(i) of this section,
provided that such nets are stowed and are not available for immediate
use in accordance with Sec. 648.23(b), and provided that regulated
species were not harvested by nets of mesh size smaller than the
minimum mesh size specified in paragraph (b)(2)(i) of this section.
Vessels fishing for the exempted species identified in paragraph
(b)(3)(i) of this section may also possess and retain the following
species, with the restrictions noted, as incidental take to these
exempted fisheries: Conger eels; searobins; black sea bass; red hake;
tautog (blackfish); blowfish; cunner; John Dory; mullet; bluefish;
tilefish; longhorn sculpin; fourspot flounder; alewife; hickory shad;
American shad; blueback herring; sea ravens; Atlantic croaker; spot;
swordfish; monkfish and monkfish parts--up to 10 percent, by weight, of
all other species on board; American lobster--up to 10 percent, by
weight, of all other species on board or 200 lobsters, whichever is
less; and skate and skate parts--up to 10 percent, by weight, of all
other species on board.
(4) Addition or deletion of exemptions. Same as paragraph (a)(7) of
this section.
(c) Mid-Atlantic (MA) Regulated Mesh Area--(1) Area definition. The
MA Regulated Mesh Area (copies of a map depicting this area are
available from the Regional Director upon request) is that area bounded
on the east by a line running from the Rhode Island shoreline along
71 deg.47.5' W. long. to its intersection with the 3-nm line, south
along the 3-nm line to Montauk Point, southwesterly along the 3-nm line
to the intersection of 72 deg.30' W. long., and south along that line
to the intersection of the outer boundary of the EEZ.
(2) Gear restrictions--(i) Minimum mesh size. Except as provided in
paragraphs (c)(3) and (i) of this section, and unless otherwise
restricted under paragraph (c)(2)(ii) of this section, the minimum mesh
size for any trawl net, sink gillnet, Scottish seine, purse seine or
midwater trawl not stowed or not unavailable for immediate use as
described in Sec. 648.23(b), by a vessel fishing under a DAS in the NE
multispecies DAS program in the MA Regulated Mesh Area shall be that
specified at Sec. 648.104(a). This restriction does not apply to
vessels that have not been issued a multispecies permit and that are
fishing exclusively in state waters.
(ii) Large mesh vessels. When fishing in the MA Regulated Mesh
Area, the minimum mesh size for any sink gillnet on a vessel, or used
by a vessel, fishing under a DAS in the Large Mesh DAS program
specified in Sec. 648.82(b) (6) and (7) is 7-inch (17.78-cm) diamond
mesh throughout the entire net. The minimum
[[Page 35000]]
mesh size for any trawl net on a vessel, or used by a vessel, fishing
under a DAS in the Large Mesh DAS program is 8-inch (20.32-cm) diamond
mesh throughout the net. This restriction does not apply to nets or
pieces of nets smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 ft\2\ (0.81
m\2\)), or to vessels that have not been issued a multispecies permit
and that are fishing exclusively in state waters.
(3) Net stowage exemption. Vessels may possess regulated species
while in possession of nets with mesh smaller than the minimum size
specified in paragraph (c)(2)(i) of this section, provided that such
nets are stowed and are not available for immediate use in accordance
with Sec. 648.23(b), and provided that regulated species were not
harvested by nets of mesh size smaller than the minimum mesh size
specified in paragraph (c)(2)(i) of this section.
(4) Additional exemptions. The Regional Director may, using the
process described in either paragraph (a)(7) (i) or (ii) of this
section, authorize an exemption for a white hake fishery by vessels
using regulated mesh or hook gear. Determination of the percentage of
regulated species caught in such a fishery shall not include white
hake.
(d) Midwater trawl gear exemption. Fishing may take place
throughout the fishing year with midwater trawl gear of mesh size less
than the applicable minimum size specified in this section, provided
that:
(1) Midwater trawl gear is used exclusively;
(2) When fishing under this exemption in the GOM/GB and SB/JL
Areas, the vessel has on board a letter of authorization issued by the
Regional Director;
(3) The vessel only fishes for, possesses, or lands Atlantic
herring, blueback herring, mackerel, or squid in areas south of
42 deg.20' N. lat.; and Atlantic herring, blueback herring, or mackerel
in areas north of 42 deg.20' N. lat; and
(4) The vessel does not fish for, possess, or land NE multispecies.
(e) Purse seine gear exemption. Fishing may take place throughout
the fishing year with purse seine gear of mesh size smaller than the
applicable minimum size specified in this section, provided that:
(1) The vessel uses purse seine gear exclusively;
(2) When fishing under this exemption in the GOM/GB and SB/JL
areas, the vessel has on board an authorizing letter issued by the
Regional Director;
(3) The vessel only fishes for, possesses, or lands Atlantic
herring, blueback herring, mackerel, or menhaden; and
(4) The vessel does not fish for, possess, or land NE multispecies.
(f) Mesh measurements--(1) Gillnets. Beginning October 15, 1996,
mesh size of gillnet gear shall be measured by lining up five
consecutive knots perpendicular to the float line and, with a ruler or
tape measure, measuring ten consecutive measures on the diamond, inside
knot to inside knot. The mesh shall be the average of the measurements
of ten consecutive measures.
(2) All other nets. With the exception of gillnets, mesh size shall
be measured by a wedged-shaped gauge having a taper of 2 cm in 8 cm and
a thickness of 2.3 mm, inserted into the meshes under a pressure or
pull of 5 kg.
(i) Square-mesh measurement. Square mesh in the regulated portion
of the net is measured by placing the net gauge along the diagonal line
that connects the largest opening between opposite corners of the
square. The square mesh size is the average of the measurements of 20
consecutive adjacent meshes from the terminus forward along the long
axis of the net. The square mesh is measured at least five meshes away
from the lacings of the net.
(ii) Diamond-mesh measurement. Diamond mesh in the regulated
portion of the net is measured running parallel to the long axis of the
net. The mesh size is the average of the measurements of any series of
20 consecutive meshes. The mesh is measured at least five meshes away
from the lacings of the net.
(g) Restrictions on gear and methods of fishing--(1) Net
obstruction or constriction. A fishing vessel shall not use any device
or material, including, but not limited to, nets, net strengtheners,
ropes, lines, or chafing gear, on the top of a trawl net, except that
one splitting strap and one bull rope (if present), consisting of line
and rope no more than 3 inches (7.62 cm) in diameter, may be used if
such splitting strap and/or bull rope does not constrict in any manner
the top of the trawl net. ``The top of the trawl net'' means the 50
percent of the net that (in a hypothetical situation) would not be in
contact with the ocean bottom during a tow if the net were laid flat on
the ocean floor. For the purpose of this paragraph (g)(1), head ropes
are not considered part of the top of the trawl net.
(2) Mesh obstruction or constriction. (i) A fishing vessel may not
use any mesh configuration, mesh construction, or other means on or in
the top of the net, as defined in paragraph (g)(1) of this section, if
it obstructs the meshes of the net in any manner.
(ii) A fishing vessel may not use a net capable of catching
multispecies if the bars entering or exiting the knots twist around
each other.
(3) Pair trawl prohibition. No vessel may fish for NE multispecies
while pair trawling, or possess or land NE multispecies that have been
harvested by means of pair trawling.
(h) Scallop vessels. (1) Except as provided in paragraph (h)(2) of
this section, a scallop vessel that possesses a limited access scallop
permit and either a multispecies combination vessel permit or a scallop
multispecies possession limit permit, and that is fishing under a
scallop DAS allocated under Sec. 648.53, may possess and land up to 300
lb (136.1 kg) of regulated species, provided it has at least one
standard tote on board, unless otherwise restricted by
Sec. 648.86(a)(2).
(2) Combination vessels fishing under a NE multispecies DAS are
subject to the gear restrictions specified in Sec. 648.80 and may
possess and land unlimited amounts of regulated species. Such vessels
may simultaneously fish under a scallop DAS.
(i) State waters winter flounder exemption. Any vessel issued a
multispecies permit may fish for, possess, or land winter flounder
while fishing with nets of mesh smaller than the minimum size specified
in paragraphs (a)(2), (b)(2), and (c)(2) of this section, provided
that:
(1) The vessel has on board a certificate approved by the Regional
Director and issued by the state agency authorizing the vessel's
participation in the state's winter flounder fishing program and is in
compliance with the applicable state laws pertaining to minimum mesh
size for winter flounder.
(2) Fishing is conducted exclusively in the waters of the state
from which the certificate was obtained.
(3) The state's winter flounder plan has been approved by the
Commission as being in compliance with the Commission's winter flounder
fishery management plan.
(4) The state elects, by a letter to the Regional Director, to
participate in the exemption program described by this section.
(5) The vessel does not enter or transit the EEZ.
(6) The vessel does not enter or transit the waters of another
state, unless such other state is participating in the exemption
program described by this section and the vessel is enrolled in that
state's program.
(7) The vessel, when not fishing under the DAS program, does not
fish for, possess, or land more than 500 lb (226.8
[[Page 35001]]
kg) of winter flounder, and has at least one standard tote on board.
(8) The vessel does not fish for, possess, or land any species of
fish other than winter flounder and the exempted small mesh species
specified under paragraphs (a)(3)(i), (a)(8)(iii), (b)(3), and (c)(3)
of this section when fishing in the areas specified under paragraphs
(a)(3), (a)(8), (b)(1), and (c)(1) of this section, respectively.
Vessels fishing under this exemption in New York and Connecticut state
waters may also possess and retain skate as incidental take in this
fishery.
(9) The vessel complies with all other applicable requirements.
Sec. 648.81 Closed areas.
(a) Closed Area I. (1) No fishing vessel or person on a fishing
vessel may enter, fish, or be in the area known as Closed Area I
(copies of a map depicting this area are available from the Regional
Director upon request), as defined by straight lines connecting the
following points in the order stated, except as specified in paragraphs
(a)(2) and (d) of this section:
Closed Area I
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
CI1........................................... 41 deg.30' 69 deg.23'
CI2........................................... 40 deg.45' 68 deg.45'
CI3........................................... 40 deg.45' 68 deg.30'
CI4........................................... 41 deg.30' 68 deg.30'
CI1........................................... 41 deg.30' 69 deg.23'
------------------------------------------------------------------------
(2) Paragraph (a)(1) of this section does not apply to persons on
fishing vessels or fishing vessels--
(i) Fishing with or using pot gear designed and used to take
lobsters, or pot gear designed and used to take hagfish, and that have
no other gear on board capable of catching NE multispecies; or
(ii) Fishing with or using pelagic hook or longline gear or harpoon
gear, provided that there is no retention of regulated species, and
provided that there is no other gear on board capable of catching NE
multispecies.
(b) Closed Area II. (1) No fishing vessel or person on a fishing
vessel may enter, fish, or be in the area known as Closed Area II
(copies of a map depicting this area is available from the Regional
Director upon request), as defined by straight lines connecting the
following points in the order stated, except as specified in paragraph
(b)(2) of this section:
Closed Area II
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
ClI1.................... 41 deg.00' 67 deg.20'
ClI2.................... 41 deg.00' 66 deg.35.8'
G5...................... 41 deg.18.6' 66 deg.24.8' (the U.S.-
Canada Maritime
Boundary)
ClI3.................... 42 deg.22' 67 deg.20' (the U.S.-
Canada Maritime
Boundary)
ClI1.................... 41 deg.00' 67 deg.20'
------------------------------------------------------------------------
(2) Paragraph (b)(1) of this section does not apply to persons on
fishing vessels or fishing vessels fishing with gears as in paragraph
(a)(2) (i) or (ii) of this section, or that are transitting the area,
provided--
(i) The operator has determined that there is a compelling safety
reason; and
(ii) The vessel's fishing gear is stowed in accordance with the
requirements of paragraph (e) of this section.
(c) Nantucket Lightship Closed Area. (1) No fishing vessel or
person on a fishing vessel may enter, fish, or be in the area known as
the Nantucket Lightship Closed Area (copies of a map depicting this
area are available from the Regional Director upon request), as defined
by straight lines connecting the following points in the order stated,
except as specified in paragraphs (c)(2) and (d) of this section:
Nantucket Lightship Closed Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
G10........................................... 40 deg.50' 69 deg.00'
CN1........................................... 40 deg.20' 69 deg.00'
CN2........................................... 40 deg.20' 70 deg.20'
CN3........................................... 40 deg.50' 70 deg.20'
G10........................................... 40 deg.50' 69 deg.00'
------------------------------------------------------------------------
(2) Paragraph (c)(1) of this section does not apply to persons on
fishing vessels or fishing vessels--
(i) Fishing with gear as in paragraph (a)(2) (i) or (ii) of this
section;
(ii) Fishing with or using dredge gear designed and used to take
surf clams or ocean quahogs, and that have no other gear on board
capable of catching NE multispecies; or
(iii) Classified as charter, party or recreational vessel, provided
that--
(A) If the vessel is a party or charter vessel, it has a letter of
authorization issued by the Regional Director on board;
(B) Fish harvested or possessed by the vessel are not sold or
intended for trade, barter or sale, regardless of where the fish are
caught; and
(C) The vessel has no gear other than rod and reel or handline gear
on board.
(d) Transitting. Vessels may transit Closed Area I, the Nantucket
Lightship Closed Area, the NE Closure Area, the Mid-coast Closure Area,
and the Massachusetts Bay Closure Area, as defined in paragraphs
(a)(1), (c)(1), (f)(1), (g)(1), and (h)(1), respectively, of this
section, provided that their gear is stowed in accordance with the
provisions of paragraph (e) of this section.
(e) Gear stowage requirements. Vessels transitting the closed areas
must stow their gear as follows:
(1) Nets. In accordance with one of the methods specified in
Sec. 648.23(b) and capable of being shown not to have been in recent
use.
(2) Scallop dredges. The towing wire is detached from the scallop
dredge, the towing wire is reeled up onto the winch, and the dredge is
secured and covered so that it is rendered unusable for fishing.
(3) Hook gear (other than pelagic). All anchors and buoys are
secured and all hook gear, including jigging machines, is covered.
(4) Sink gillnet gear. All nets are covered with canvas or other
similar material and lashed or otherwise securely fastened to the deck
or rail, and all buoys larger than 6 inches (15.24 cm) in diameter,
high flyers, and anchors are disconnected.
(f) NE Closure Area. (1) From August 15 through September 13, no
fishing vessel or person on a fishing vessel may enter, fish, or be,
and no fishing gear capable of catching NE multispecies, unless
otherwise allowed in this part may be, in the area known as the NE
Closure Area (copies of a map depicting this area are available from
the Regional Director upon request), as defined by straight lines
connecting the following points in the order stated, except as
specified in paragraphs (d) and (f)(2) of this section:
Northeast Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
NE1........................................... (\1\) 68 deg.55.0
'
NE2........................................... 43 deg.29.6
' 68 deg.55.0
'
NE3........................................... 44 deg.04.4
' 67 deg.48.7
'
NE4........................................... 44 deg.06.9
' 67 deg.52.8
'
NE5........................................... 44 deg.31.2
' 67 deg.02.7
'
NE6........................................... (\1\) 67 deg.02.7
'
------------------------------------------------------------------------
\1\ Maine shoreline.
(2) Paragraph (f)(1) of this section does not apply to persons on
fishing vessels or fishing vessels:
(i) That have not been issued a multispecies permit and that are
fishing exclusively in state waters;
[[Page 35002]]
(ii) That are fishing with or using exempted gear as defined under
this part, excluding midwater trawl gear, provided that there is no
other gear on board capable of catching NE multispecies; or
(iii) That are classified as charter, party, or recreational.
(g) Mid-coast Closure Area. (1) From November 1 through December
31, no fishing vessel or person on a fishing vessel may enter, fish, or
be, and no fishing gear capable of catching multispecies, unless
otherwise allowed in this part, may be in the area known as the Mid-
coast Closure Area, as defined by straight lines connecting the
following points in the order stated, except as specified in paragraphs
(d) and (g)(2) of this section (copies of a map depicting this area are
available from the Regional Director upon request):
Mid-Coast Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
MC1........................................... 42 deg.30' (\1\)
MC2........................................... 42 deg.30' 70 deg.15'
MC3........................................... 42 deg.40' 70 deg.15'
MC4........................................... 42 deg.40' 70 deg.00'
MC5........................................... 43 deg.00' 70 deg.00'
MC6........................................... 43 deg.00' 69 deg.30'
MC7........................................... 43 deg.15' 69 deg.30'
MC8........................................... 43 deg.15' 69 deg.00'
MC9........................................... (\2\) 69 deg.00'W
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Maine shoreline.
(2) Paragraph (g)(1) of this section does not apply to persons on
fishing vessels or fishing vessels that meet the criteria in paragraph
(f)(2)(i), (ii), or (iii) of this section.
(h) Massachusetts Bay Closure Area. (1) During the period March 1
through March 30, no fishing vessel or person on a fishing vessel may
enter, fish, or be in; and no fishing gear capable of catching NE
multispecies, unless otherwise allowed in this part, may be in the area
known as the Massachusetts Bay Closure Area (copies of a map depicting
this area are available from the Regional Director upon request), as
defined by straight lines connecting the following points in the order
stated, except as specified in paragraphs (d) and (h)(2) of this
section:
Massachusetts Bay Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
MB1........................................... 42 deg.30' (\1\)
MB2........................................... 42 deg.30' 70 deg.30'
MB3........................................... 42 deg.12' 70 deg.30'
MB4........................................... 42 deg.12' 70 deg.00'
MB5........................................... (\2\) 70 deg.00'
MB6........................................... 42 deg.00' (\2\)
MB7........................................... 42 deg.00' (\1\)
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Cape Cod shoreline.
(2) Paragraph (h)(1) of this section does not apply to persons on
fishing vessels or fishing vessels that meet the criteria in paragraph
(f)(2)(i), (ii), or (iii) of this section.
Sec. 648.82 Effort-control program for limited access vessels.
(a) General. A vessel issued an limited access multispecies permit
may not fish for, possess, or land regulated species, except during a
DAS as allocated under and in accordance with the applicable DAS
program described in this section, unless otherwise provided in these
regulations.
(b) DAS program--permit categories, allocations and initial
assignments to categories. Beginning with the 1996 fishing year, all
limited access multispecies permit holders shall be assigned to one of
the following DAS permit categories according to the criteria
specified. Permit holders may request a change in permit category for
the 1996 fishing year and all fishing years thereafter, as specified in
Sec. 648.4(a)(1)(i)(I)(2). Each fishing year shall begin on May 1 and
extend through April 30 of the following year.
(1) Individual DAS category--(i) DAS allocation. A vessel fishing
under the individual DAS category shall be allocated 65 percent of its
initial 1994 allocation baseline, as established under Amendment 5 to
the NE Multispecies FMP, for the 1996 fishing year and 50 percent of
its initial allocation baseline for the 1997 fishing year and beyond,
as calculated under paragraph (d)(1) of this section.
(ii) Initial assignment. Any vessel issued a valid limited access
multispecies individual DAS permit, including any vessel also issued a
limited access multispecies gillnet permit, as of July 1, 1996, shall
be initially assigned to the individual DAS category.
(2) Fleet DAS category--(i) DAS allocation. A vessel fishing under
the fleet DAS category shall be allocated 116 DAS (139 DAS multiplied
by the proration factor of 0.83) for the 1996 fishing year and 88 DAS
for the 1997 fishing year and beyond.
(ii) Initial assignment. Any vessel issued a valid fleet DAS
permit, including any vessel also issued a limited access multispecies
gillnet permit; limited access multispecies hook-gear permit; limited
access multispecies gillnet permit that has not also been issued a DAS
permit; or a limited access multispecies small vessel (less than or
equal to 45 ft (13.7 m)) permit and that is larger than 20 ft (6.1 m)
in length as determined by its most recent permit application, as of
July 1, 1996, shall be initially assigned to the fleet DAS category.
(3) Small vessel category--(i) DAS allocation. A vessel qualified
and electing to fish under the small vessel category may retain cod,
haddock, and yellowtail flounder, combined up to 300 lb (136.1 kg) per
trip without being subject to DAS restrictions. Such a vessel is not
subject to a possession limit for other NE multispecies.
(ii) Initial assignment. A vessel issued a valid limited access
multispecies permit and fishing under the small vessel category (less
than or equal to 45 ft (13.7 m)) permit as of July 1, 1996, and that is
20 ft (6.1 m) or less in length as determined by the vessel's last
application for a permit, shall be initially assigned to the small
vessel category. Any other vessel may elect to switch into this
category, as provided for in Sec. 648.4(a)(1)(i)(I)(2), if such vessel
meets or complies with the following:
(A) The vessel is 30 ft (9.1 m) or less in length overall as
determined by measuring along a horizontal line drawn from a
perpendicular raised from the outside of the most forward portion of
the stem of the vessel to a perpendicular raised from the after most
portion of the stern.
(B) If construction of the vessel was begun after May 1, 1994, the
vessel must be constructed such that the quotient of the overall length
divided by the beam is not less than 2.5.
(C) Acceptable verification for vessels 20 ft (6.1 m) or less in
length shall be USCG documentation or state registration papers. For
vessels over 20 ft (6.1 m) in length, the measurement of length must be
verified in writing by a qualified marine surveyor, or the builder,
based on the vessel's construction plans, or by other means determined
acceptable by the Regional Director. A copy of the verification must
accompany an application for a multispecies permit.
(D) Adjustments to the small vessel category requirements,
including changes to the length requirement, if required to meet
fishing mortality goals, may be made by the Regional Director following
framework procedures of Sec. 648.90.
(4) Hook-gear category--(i) DAS allocation. Any vessel issued a
valid limited access multispecies hook-gear
[[Page 35003]]
permit shall be allocated 116 DAS (139 DAS multiplied by the proration
factor of 0.83) for the 1996 fishing year and 88 DAS for the 1997
fishing year, and beyond. A vessel fishing under this category in the
DAS program must meet or comply with the following while fishing for,
in possession of, or landing, regulated species:
(A) Vessels, and persons on such vessels, are prohibited from
possessing gear other than hook gear on board the vessel.
(B) Vessels, and persons on such vessels, are prohibited from
fishing, setting, or hauling back, per day, or possessing on board the
vessel, more than 4,500 rigged hooks. An unbaited hook and gangion that
has not been secured to the ground line of the trawl on board a vessel
is deemed to be a replacement hook and is not counted toward the 4,500-
hook limit. A ``snap-on'' hook is deemed to be a replacement hook if it
is not rigged or baited.
(ii) Initial assignment. No vessel shall be initially assigned to
the hook-gear category. Any vessel that meets the qualifications
specified in Sec. 648.4(a)(1)(ii) may apply for and obtain a permit to
fish under this category.
(5) Combination vessel category--(i) DAS allocation. A vessel
fishing under the combination vessel category shall be allocated 65
percent of its initial 1994 allocation baseline, as established under
Amendment 5 to the FMP, for the 1996 fishing year and 50 percent of its
initial allocation baseline for the 1997 fishing year and beyond, as
calculated under paragraph (d)(1) of this section.
(ii) Initial assignment. A vessel issued a valid limited access
multispecies permit qualified to fish as a combination vessel as of
July 1, 1996, shall be assigned to the combination vessel category.
(6) Large Mesh Individual DAS category--(i) DAS allocation. A
vessel fishing under the large mesh individual DAS category shall be
allocated a DAS increase of 12 percent in year one and of 36 percent in
year two beyond the DAS allocations specified in paragraph (b)(1)(i) of
this section (this includes the proration factor for 1996). To be
eligible to fish under the large mesh individual DAS category, a vessel
while fishing under this category must fish with gillnet gear with a
minimum mesh size of 7-inch (17.78-cm) diamond mesh or with trawl gear
with a minimum mesh size of 8-inch (20.32-cm) diamond mesh, as
described under Sec. 648.80 (a)(2)(ii), (b)(2)(ii), and (c)(2)(ii).
(ii) Initial assignment. No vessel shall be initially assigned to
the large mesh individual DAS category. Any vessel that is initially
assigned to the individual DAS, fleet DAS, or small vessel category may
request and be granted a switch into this category as specified in
Sec. 648.4(a)(1)(i)(I)(2).
(7) Large Mesh Fleet DAS category--(i) DAS allocation. A vessel
fishing under the large mesh fleet DAS category shall be allocated 129
DAS (155 DAS multiplied by the proration factor of 0.83) for the 1996
fishing year and 120 DAS for the 1997 fishing year, and beyond. To be
eligible to fish under the large mesh fleet DAS category, a vessel
while fishing under this category must fish with gillnet gear with a
minimum mesh size of 7-inch (17.78-cm) diamond mesh or with trawl gear
with a minimum mesh size of 8-inch (20.32-cm) diamond mesh, as
described under Sec. 648.80 (a)(2)(ii), (b)(2)(ii), and (c)(2)(ii).
(ii) Initial assignment. No vessel shall be initially assigned to
the large mesh fleet DAS category. Any vessel that is initially
assigned to the individual DAS, fleet DAS, or small vessel category may
request and be granted a switch into this category as specified in
Sec. 648.4(a)(1)(i)(I)(2).
(c) 1996 DAS appeals. (1) Previously exempted vessels. A vessel
that was issued a valid 1995 limited access multispecies permit, and
that has been fishing under the small vessel (less than or equal to 45
ft (13.7 m)), hook-gear, or gillnet categories, is eligible to appeal
its allocation of DAS, if it has not previously done so, as described
under paragraph (d)(2) of this section. Each vessel's initial
allocation of DAS will be considered to be 176 DAS for purposes of this
appeal (i.e., the fleet DAS category baseline prior to the 1996-1997
reductions).
(2) Exempted gillnet vessels that held an individual DAS permit. A
vessel that was issued a valid 1995 limited access multispecies permit
and that has been fishing under both the gillnet and individual DAS
categories, is eligible to appeal its allocation of gillnet DAS, as
described under paragraph (d)(2) of this section. Each vessel's initial
allocation of DAS will be considered to be 176 DAS for purposes of this
appeal (i.e., the fleet DAS category baseline prior to the 1996-1997
reductions).
(d) Individual DAS allocations--(1) Calculation of a vessel's
individual DAS. The DAS assigned to a vessel for purposes of
determining that vessel's annual allocation under the individual DAS
program is calculated as follows:
(i) Count the total number of the vessel's NE multispecies DAS for
the years 1988, 1989, and 1990. NE multispecies DAS are deemed to be
the total number of days the vessel was absent from port for a trip
where greater than 10 percent of the vessel's total landings were
comprised of regulated species, minus any days for such trips in which
a scallop dredge was used;
(ii) Exclude the year of least NE multispecies DAS; and
(iii) If 2 years of multispecies DAS are remaining, average those
years' DAS; or
(iv) If only 1 year remains, use that year's DAS.
(2) Appeal of DAS allocation. (i) Initial allocations of individual
DAS to those vessels authorized to appeal under paragraph (c) of this
section may be appealed to the Regional Director if a request to appeal
is received by the Regional Director no later than July 31, 1996, or 30
days after the initial allocation is made, whichever is later. Any such
appeal must be in writing and be based on one or more of the following
grounds:
(A) The information used by the Regional Director was based on
mistaken or incorrect data.
(B) The applicant was prevented by circumstances beyond his/her
control from meeting relevant criteria.
(C) The applicant has new or additional information.
(ii) The Regional Director will appoint a designee who will make an
initial decision on the written appeal.
(iii) If the applicant is not satisfied with the initial decision,
the applicant may request that the appeal be presented at a hearing
before an officer appointed by the Regional Director.
(iv) The hearing officer shall present his/her findings to the
Regional Director and the Regional Director will make a decision on the
appeal. The Regional Director's decision on this appeal is the final
administrative decision of the Department of Commerce.
(3) Status of vessels pending appeal of DAS allocations. While a
vessel's individual DAS allocation is under appeal, the vessel may fish
under the fleet DAS category until the Regional Director has made a
final determination on the appeal. Any DAS spent fishing for regulated
species by a vessel while that vessel's initial DAS allocation is under
appeal, shall be counted against any DAS allocation that the vessel may
ultimately receive.
(e) Accrual of DAS. Same as Sec. 648.53(e).
(f) Good Samaritan credit. Same as Sec. 648.53(f).
(g) Spawning season restrictions. A vessel issued a valid small
vessel permit under paragraph (b)(3) of this section may not fish for,
possess, or land regulated species from March 1 through March 20 of
each year. Any other vessel issued a limited access multispecies permit
must declare out and be out of
[[Page 35004]]
the regulated NE multispecies for a 20-day period between March 1 and
May 31 of each fishing year using the notification requirements
specified in Sec. 648.10. If a vessel owner has not declared and been
out for a 20-day period between March 1 and May 31 of each fishing year
on or before May 12 of each such year, the vessel is prohibited from
fishing for, possessing or landing any regulated species after May 11
of such year for the number of days needed to fulfill the 20-day
requirement.
(h) Declaring DAS and 20-day blocks. A vessel's owner or authorized
representative shall notify the Regional Director of a vessel's
participation in the DAS program and declaration of its 20-day out
period of the NE multispecies fishery, using the notification
requirements specified in Sec. 648.10.
(i) Adjustments in annual DAS allocations. Adjustments in annual
DAS allocations, if required to meet fishing mortality goals, may be
made by the Regional Director following the framework procedures of
Sec. 648.90.
Sec. 648.83 Minimum fish sizes.
(a) Minimum fish sizes. (1) Minimum fish sizes for recreational
vessels and charter/party vessels that are not fishing under a NE
multispecies DAS are specified in Sec. 648.89. All other vessels are
subject to the following minimum fish sizes (TL):
Minimum Fish Sizes (TL)
------------------------------------------------------------------------
Species Size (Inches)
------------------------------------------------------------------------
Cod..................................................... 19 (48.3 cm)
Haddock................................................. 19 (48.3 cm)
Pollock................................................. 19 (48.3 cm)
Witch flounder (gray sole).............................. 14 (35.6 cm)
Yellowtail flounder..................................... 13 (33.0 cm)
American plaice (dab)................................... 14 (35.6 cm)
Winter flounder (blackback)............................. 12 (30.48 cm)
Redfish................................................. 9 (22.9 cm)
------------------------------------------------------------------------
(2) The minimum fish size applies to the whole fish or to any part
of a fish while possessed on board a vessel, except as provided in
paragraph (b) of this section, and to whole fish only, after landing.
Fish or parts of fish must have skin on while possessed on board a
vessel and at the time of landing in order to meet minimum size
requirements. ``Skin on'' means the entire portion of the skin normally
attached to the portion of the fish or fish parts possessed.
(b) Exceptions. (1) Each person aboard a vessel issued a limited
access permit and fishing under the DAS program may possess up to 25 lb
(11.3 kg) of fillets that measure less than the minimum size, if such
fillets are from legal-sized fish and are not offered or intended for
sale, trade, or barter.
(2) Recreational, party, and charter vessels may possess fillets
less than the minimum size specified, if the fillets are taken from
legal-sized fish and are not offered or intended for sale, trade or
barter.
(c) Adjustments. (1) At any time when information is available, the
NEFMC will review the best available mesh selectivity information to
determine the appropriate minimum size for the species listed in
paragraph (a) of this section, except winter flounder, according to the
length at which 25 percent of the regulated species would be retained
by the applicable minimum mesh size.
(2) Upon determination of the appropriate minimum sizes, the NEFMC
shall propose the minimum fish sizes to be implemented following the
procedures specified in Sec. 648.90.
(3) Additional adjustments or changes to the minimum fish sizes
specified in paragraph (a) of this section, and exemptions as specified
in paragraph (b) of this section, may be made at any time after
implementation of the final rule as specified under Sec. 648.90.
Sec. 648.84 Gear-marking requirements and gear restrictions.
(a) Bottom-tending fixed gear, including, but not limited to
gillnets and longlines, designed for, capable of, or fishing for NE
multispecies must have the name of the owner or vessel, or the official
number of that vessel permanently affixed to any buoys, gillnets,
longlines, or other appropriate gear so that the name of the owner or
vessel or official number of the vessel is visible on the surface of
the water.
(b) Bottom-tending fixed gear, including, but not limited to
gillnets or longline gear, must be marked so that the westernmost end
(measuring the half compass circle from magnetic south through west to,
and including, north) of the gear displays a standard 12-inch (30.5-cm)
tetrahedral corner radar reflector and a pennant positioned on a staff
at least 6 ft (1.8 m) above the buoy. The easternmost end (meaning the
half compass circle from magnetic north through east to, and including,
south) of the gear need display only the standard 12-inch (30.5-cm)
tetrahedral radar reflector positioned in the same way.
(c) Continuous gillnets must not exceed 6,600 ft (2,011.7 m)
between the end buoys.
(d) In the GOM/GB regulated mesh area specified in Sec. 648.80(a),
gillnet gear set in an irregular pattern or in any way that deviates
more than 30 deg. from the original course of the set must be marked at
the extremity of the deviation with an additional marker, which must
display two or more visible streamers and may either be attached to or
independent of the gear.
Sec. 648.85 Flexible Area Action System.
(a) The Chair of the Multispecies Oversight Committee, upon
learning of the presence of discard problems associated with large
concentrations of juvenile, sublegal, or spawning multispecies, shall
determine if the situation warrants further investigation and possible
action. In making this determination, the Committee Chair shall
consider the amount of discard of regulated species, the species
targeted, the number and types of vessels operating in the area, the
location and size of the area, and the resource condition of the
impacted species. If he/she determines it is necessary, the Committee
Chair will request the Regional Director to initiate a fact finding
investigation to verify the situation and publish notification in the
Federal Register requesting public comments in accordance with the
procedures therefor in Amendment 3 to the NE Multispecies FMP.
(b) After examining the facts, the Regional Director shall, within
the deadlines specified in Amendment 3, provide the technical analysis
required by Amendment 3.
(c) The NEFMC shall prepare an economic impact analysis of the
potential management options under consideration within the deadlines
specified in Amendment 3.
(d) Copies of the analysis and reports prepared by the Regional
Director and the NEFMC shall be made available for public review at the
NEFMC's office and the Committee shall hold a meeting/public hearing,
at which time it shall review the analysis and reports and request
public comments. Upon review of all available sources of information,
the Committee shall determine what course of action is warranted by the
facts and make a recommendation, consistent with the provisions of
Amendment 3 to the Regional Director.
(e) By the deadline set in Amendment 3 the Regional Director shall
either accept or reject the Committee's recommendation. If the
recommended action is consistent with the record established by the
fact-finding report, impact analysis, and comments received at the
public hearing, he/she shall accept the Committee's recommendation and
implement it through notification in the Federal Register and by notice
sent to all vessel owners holding multispecies permits. The Regional
Director shall also use
[[Page 35005]]
other appropriate media, including, but not limited to, mailings to the
news media, fishing industry associations and radio broadcasts, to
disseminate information on the action to be implemented.
(f) Once implemented, the Regional Director shall monitor the
affected area to determine if the action is still warranted. If the
Regional Director determines that the circumstances under which the
action was taken, based on the Regional Director's report, the NEFMC's
report, and the public comments, are no longer in existence, he/she
shall terminate the action by notification in the Federal Register.
(g) Actions taken under this section will ordinarily become
effective upon the date of filing with the Office of the Federal
Register. The Regional Director may determine that facts warrant a
delayed effective date.
Sec. 648.86 Possession restrictions.
(a) Haddock--(1) NE multispecies DAS vessels. A vessel issued a
limited access multispecies permit that is fishing under a NE
multispecies DAS may land or possess on board up to 1,000 lb (453.6 kg)
of haddock provided it has at least one standard tote on board. Haddock
on board a vessel subject to this possession limit must be separated
from other species of fish and stored so as to be readily available for
inspection.
(2) Scallop dredge vessels. (i) No person owning or operating a
scallop dredge vessel issued a multispecies permit may land haddock
from, or possess haddock on board, a scallop dredge vessel, from
January 1 through June 30.
(ii) No person owning or operating a scallop dredge vessel without
a multispecies permit may possess haddock in, or harvested from, the
EEZ, from January 1 through June 30.
(iii) From July 1 through December 31, scallop dredge vessel or
persons owning or operating a scallop dredge vessel that is fishing
under a scallop DAS allocated under Sec. 648.53 may land or possess on
board up to 300 lb (136.1 kg) of haddock provided the vessel has at
least one standard tote on board. Haddock on board a vessel subject to
this possession limit must be separated from other species of fish and
stored so as to be readily available for inspection.
(b) Winter flounder. A vessel issued a limited access multispecies
permit that is fishing in the MA regulated mesh area and is not fishing
under a NE multispecies DAS, may land, or possess on board, winter
flounder up to 10 percent, by weight, of all other species on board, or
200 lb (90.7 kg), whichever is less. Winter flounder on board a vessel
subject to this possession limit must be separated from other species
of fish and stored so as to be readily available for inspection in
standard totes.
(c) Other possession restrictions. Vessels are subject to any other
applicable possession limit restrictions of this part.
Sec. 648.87 Sink gillnet requirements to reduce harbor porpoise takes.
(a) Areas closed to sink gillnets. Section 648.81(f) through (h)
sets forth closed area restrictions to reduce the take of harbor
porpoise consistent with the harbor porpoise mortality reduction goals.
(b) Additional areas closed to sink gillnets. All persons owning or
operating vessels must remove all of their sink gillnet gear from, and
may not use, set, haul back, fish with, or possess on board, unless
stowed in accordance with the requirements of Sec. 648.23(b), a sink
gillnet in the EEZ portion of the areas and for the times specified in
paragraphs (b)(1) and (2) of this section, and all persons owning or
operating vessels issued a limited access multispecies permit must
remove all of their sink gillnet gear from, and may not use, set, haul
back, fish with, or possess on board, unless stowed in accordance with
the requirements of Sec. 648.23(b), a sink gillnet in the EEZ portion
of the areas and for the times specified in paragraphs (b)(1) and (2)
of this section.
(1) Mid-coast Closure Area. From March 25 through April 25 of each
fishing year, the restrictions and requirements specified in paragraph
(a)(2) of this section apply to the Mid-coast Closure area, as defined
under Sec. 648.81(g)(1).
(2) Cape Cod South Area Closure. From March 1 through March 10 of
each fishing year, the restrictions and requirements specified under
paragraph (a)(2) of this section shall apply to the area known as the
Cape Cod South Closure Area (copies of a map depicting this area are
available from the Regional Director upon request), which is the area
bounded by straight lines connecting the following points in the order
stated.
Cape Cod South Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
CCS1.......................................... (\1\) 71 deg.45'
W
CCS2.......................................... 40 deg.40'
N 71 deg.45'
W
CCS3.......................................... 40 deg.40'
N 70 deg.30'
W
CCS4.......................................... (\2\) 70 deg.30'
W
------------------------------------------------------------------------
\1\ RI shoreline.
\2\ MA shoreline.
(c) Framework adjustment. (1) At least annually, the Regional
Director will provide the NEFMC with the best available information on
the status of Gulf of Maine harbor porpoise, including estimates of
abundance and estimates of bycatch in the sink gillnet fishery. Within
60 days of receipt of that information, the NEFMC's HPRT shall complete
a review of the data, assess the adequacy of existing regulations,
evaluate the impacts of other measures that reduce harbor porpoise take
and, if necessary, recommend additional measures in light of the
NEFMC's harbor porpoise mortality reduction goals. In addition, the
HPRT shall make a determination on whether other conservation issues
exist that require a management response to meet the goals and
objectives outlined in the NE Multispecies FMP. The HPRT shall report
its findings and recommendations to the NEFMC.
(2) After receiving and reviewing the HPRT's findings and
recommendations, the NEFMC shall determine whether adjustments or
additional management measures are necessary to meet the goals and
objectives of the NE Multispecies FMP. If the NEFMC determines that
adjustments or additional management measures are necessary, or at any
other time in consultation with the HPRT, it shall develop and analyze
appropriate management actions over the span of at least two NEFMC
meetings.
(3) The NEFMC may request, at any time, that the HPRT review and
make recommendations on any harbor porpoise take reduction measures or
develop additional take reduction proposals.
(4) The NEFMC shall provide the public with advance notice of the
availability of the proposals, appropriate rationale, economic and
biological analyses, and opportunity to comment on them prior to and at
the second NEFMC meeting. The NEFMC's recommendation on adjustments or
additions to management measures must come from one or more of the
categories specified under Sec. 648.90(b)(1).
(5) If the NEFMC recommends that the management measures should be
issued as a final rule, the NEFMC must consider at least the factors
specified in Sec. 648.90(b)(2).
(6) The Regional Director may accept, reject, or with NEFMC
approval, modify the NEFMC's recommendation, including the NEFMC's
recommendation to issue a final rule, as specified under
Sec. 648.90(b)(3).
[[Page 35006]]
Sec. 648.88 Open access permit restrictions.
(a) Handgear permit. A vessel issued a valid open access
multispecies handgear permit is subject to the following restrictions:
(1) The vessel may possess and land up to 300 lb (136.1 kg) of cod,
haddock, and yellowtail flounder, combined, per trip, and unlimited
amounts of the other NE multispecies, provided that it does not use or
possess on board gear other than rod and reel or handlines while in
possession of, fishing for, or landing NE multispecies, and provided it
has at least one standard tote on board.
(2) A vessel may not fish for, possess, or land regulated species
from March 1 through March 20 of each year.
(b) Charter/party permit. A vessel that has been issued a valid
open access multispecies charter/party permit is subject to the
restrictions on gear, recreational minimum fish sizes and prohibitions
on sale specified in Sec. 648.89, and any other applicable provisions
of this part.
(c) Scallop multispecies possession limit permit. A vessel that has
been issued a valid open access scallop multispecies possession limit
permit may possess and land up to 300 lb (136.1 kg) of regulated
species when fishing under a scallop DAS allocated under Sec. 648.53,
provided the vessel does not fish for, possess, or land haddock from
January 1 through June 30 as specified under Sec. 648.86(a)(2)(i), and
provided the vessel has at least one standard tote on board.
Sec. 648.89 Recreational and charter/party restrictions.
(a) Recreational gear restrictions. Persons aboard charter or party
vessels permitted under this part and not fishing under the DAS
program, and recreational fishing vessels in the EEZ, are prohibited
from fishing with more than two hooks per line and one line per angler
and must stow all other fishing gear on board the vessel as specified
under Secs. 648.23(b) and 648.81(e) (2), (3), and (4).
(b) Recreational minimum fish sizes--(1) Minimum fish sizes.
Persons aboard charter or party vessels permitted under this part and
not fishing under the DAS program, and recreational fishing vessels in
the EEZ, are subject to minimum fish sizes (TL) as follows:
Minimum Fish Sizes (TL)
------------------------------------------------------------------------
Inches
Species -------------------------------
1996 1997+
------------------------------------------------------------------------
Cod..................................... 20 (50.8 cm) 21 (53.3 cm)
Haddock................................. 20 (50.8 cm) 21 (53.3 cm)
Pollock................................. 19 (48.3 cm) 19 (48.3 cm)
Witch flounder (gray sole).............. 14 (35.6 cm) 14 (35.6 cm)
Yellowtail flounder..................... 13 (33.0 cm) 13 (33.0 cm)
American plaice (dab)................... 14 (35.6 cm) 14 (35.6 cm)
Winter flounder (blackback)............. 12 (30.5 cm) 12 (30.5 cm)
Redfish................................. 9 (22.9 cm) 9 (22.9 cm)
------------------------------------------------------------------------
(2) Exception. Vessels may possess fillets less than the minimum
size specified, if the fillets are taken from legal-sized fish and are
not offered or intended for sale, trade or barter.
(c) Possession restrictions. Each person on a recreational vessel
may not possess more than 10 cod and/or haddock, combined, in or
harvested from the EEZ.
(1) For purposes of counting fish, fillets will be converted to
whole fish at the place of landing by dividing fillet number by two. If
fish are filleted into a single (butterfly) fillet, such fillet shall
be deemed to be from one whole fish.
(2) Cod and haddock harvested by recreational vessels with more
than one person aboard may be pooled in one or more containers.
Compliance with the possession limit will be determined by dividing the
number of fish on board by the number of persons aboard. If there is a
violation of the possession limit on board a vessel carrying more than
one person, the violation shall be deemed to have been committed by the
owner and operator.
(3) Cod and haddock must be stored so as to be readily available
for inspection.
(d) Restrictions on sale. It is unlawful to sell, barter, trade, or
otherwise transfer for a commercial purpose, or to attempt to sell,
barter, trade, or otherwise transfer for a commercial purpose, NE
multispecies caught or landed by charter or party vessels permitted
under this part not fishing under a DAS or a recreational fishing
vessels fishing in the EEZ.
Sec. 648.90 Framework specifications.
(a) Annual review. The Multispecies Monitoring Committee (MSMC)
shall meet on or before November 15 of each year to develop target TACs
for the upcoming fishing year and options for NEFMC consideration on
any changes, adjustment or additions to DAS allocations, closed areas,
or other measures necessary to achieve the NE Multispecies FMP goals
and objectives.
(1) The MSMC shall review available data pertaining to: Catch and
landings, DAS and other measures of fishing effort, survey results,
stock status, current estimates of fishing mortality, and any other
relevant information.
(2) Based on this review, the MSMC shall recommend target TACs and
develop options necessary to achieve the FMP goals and objectives,
which may include a preferred option. The MSMC must demonstrate through
analysis and documentation that the options it develops are expected to
meet the NE Multispecies FMP goals and objectives. The MSMC may review
the performance of different user groups or fleet sectors in developing
options. The range of options developed by the MSMC may include any of
the management measures in the NE Multispecies FMP, including, but not
limited to: Annual target TACs, which must be based on the projected
fishing mortality levels required to meet the goals and objectives
outlined in the NE Multispecies FMP for the 10 regulated species; DAS
changes; possession limits; gear restrictions; closed areas; permitting
restrictions; minimum fish sizes; recreational fishing measures; and
any other management measures currently included in the NE Multispecies
FMP.
(3) The NEFMC shall review the recommended target TACs and all of
the options developed by the MSMC and other relevant information,
consider public comment, and develop a recommendation to meet the NE
Multispecies FMP objective that is consistent with other applicable
law. If the NEFMC does not submit a recommendation that meets the NE
Multispecies FMP objectives and is
[[Page 35007]]
consistent with other applicable law, the Regional Director may adopt
any option developed by the MSMC, unless rejected by the NEFMC, as
specified in paragraph (a)(5) of this section, provided that the option
meets the NE Multispecies FMP objective and is consistent with other
applicable law.
(4) Based on this review, the NEFMC shall submit a recommendation
to the Regional Director of any changes, adjustments or additions to
DAS allocations, closed areas or other measures necessary to achieve
the NE Multispecies FMP's goals and objectives. Included in the NEFMC's
recommendation will be supporting documents, as appropriate, concerning
the environmental and economic impacts of the proposed action and the
other options considered by the NEFMC.
(5) If the NEFMC submits, on or before January 7, a recommendation
to the Regional Director after one NEFMC meeting, and the Regional
Director concurs with the recommendation, the Regional Director shall
publish the NEFMC's recommendation in the Federal Register as a
proposed rule. The Federal Register notification of the proposed action
will provide a 30-day public comment period. The NEFMC may instead
submit its recommendation on or before February 1, if it chooses to
follow the framework process outlined in paragraph (b) of this section
and requests that the Regional Director publish the recommendation as a
final rule. If the Regional Director concurs that the NEFMC's
recommendation meets the NE Multispecies FMP objective and is
consistent with other applicable law, and determines that the
recommended management measures should be published as a final rule,
the action will be published as a final rule in the Federal Register.
If the Regional Director concurs that the recommendation meets the FMP
objective and is consistent with other applicable law and determines
that a proposed rule is warranted, and, as a result, the effective date
of a final rule falls after the start of the fishing year on May 1,
fishing may continue. However, DAS used by a vessel on or after May 1
will be counted against any DAS allocation the vessel ultimately
receives for that year.
(6) If the Regional Director concurs in the NEFMC's recommendation,
a final rule shall be published in the Federal Register on or about
April 1 of each year, with the exception noted in paragraph (a)(5) of
this section. If the NEFMC fails to submit a recommendation to the
Regional Director by February 1 that meets the FMP goals and
objectives, the Regional Director may publish as a proposed rule one of
the options reviewed and not rejected by the NEFMC, provided that the
option meets the FMP objective and is consistent with other applicable
law. If, after considering public comment, the Regional Director
decides to approve the option published as a proposed rule, the action
will be published as a final rule in the Federal Register.
(b) Within season management action. The NEFMC 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 NE Multispecies FMP.
(1) Adjustment process. After a management action has been
initiated, the NEFMC shall develop and analyze appropriate management
actions over the span of at least two NEFMC meetings. The NEFMC shall
provide the public with advance notice of the availability of both the
proposals and the analysis, and opportunity to comment on them prior to
and at the second NEFMC meeting. The NEFMC's recommendation on
adjustments or additions to management measures must come from one or
more of the following categories: DAS changes, effort monitoring, data
reporting, possession limits, gear restrictions, closed areas,
permitting restrictions, crew limits, minimum fish sizes, onboard
observers, minimum hook size and hook style, the use of crucifiers in
the hook-gear fishery, fleet sector shares, recreational fishing
measures, area closures and other appropriate measures to mitigate
marine mammal entanglements and interactions, and any other management
measures currently included in the FMP.
(2) NEFMC recommendation. After developing management actions and
receiving public testimony, the NEFMC shall make a recommendation to
the Regional Director. The NEFMC's recommendation must include
supporting rationale and, if management measures are recommended, an
analysis of impacts and a recommendation to the Regional Director on
whether to issue the management measures as a final rule. If the NEFMC
recommends that the management measures should be issued as a final
rule, the NEFMC 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 NEFMC'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 Director action. If the NEFMC's recommendation
includes adjustments or additions to management measures and, after
reviewing the NEFMC's recommendation and supporting information:
(i) If the Regional Director concurs with the NEFMC'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 Director concurs with the NEFMC'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 Director concurs with the NEFMC
recommendation, the measures will be issued as a final rule in the
Federal Register.
(iii) If the Regional Director does not concur, the NEFMC will be
notified in writing of the reasons for the non-concurrence.
(c) 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 Act.
Subpart G--Management Measures for the Summer Flounder Fisheries
Sec. 648.100 Catch quotas and other restrictions.
(a) Annual review. The Summer Flounder Monitoring Committee shall
review the following data on or before August 15 of each year to
determine the allowable levels of fishing and other restrictions
necessary to achieve a fishing mortality rate (F) of 0.41 in 1996, 0.30
in 1997, and 0.23 in 1998 and thereafter, provided the allowable levels
of fishing in 1996 and 1997 may not exceed 18,518,830 lb (8,400 mt),
unless such fishing levels have an associated F of 0.23: Commercial and
recreational catch data; current estimates of fishing mortality; stock
status; recent estimates
[[Page 35008]]
of recruitment; virtual population analysis results; levels of
noncompliance by fishermen or individual states; impact of size/mesh
regulations; sea sampling and winter trawl survey data or, if sea
sampling data are unavailable, length frequency information from the
winter trawl survey and mesh selectivity analyses; impact of gear other
than otter trawls on the mortality of summer flounder; and any other
relevant information.
(b) Recommended measures. Based on this review, the Summer Flounder
Monitoring Committee shall recommend to the Demersal Species Committee
of the MAFMC and the Commission the following measures to assure that
the F specified in paragraph (a) of this section will not be exceeded:
(1) Commercial quota set from a range of 0 to the maximum allowed
to achieve the specified F.
(2) Commercial minimum fish size.
(3) Minimum mesh size.
(4) Recreational possession limit set from a range of 0 to 15
summer flounder to achieve the specified F.
(5) Recreational minimum fish size.
(6) Recreational season.
(7) Restrictions on gear other than otter trawls.
(8) Adjustments to the exempted area boundary and season specified
in Sec. 648.104(b)(1) by 30-minute intervals of latitude and longitude
and 2-week intervals, respectively, based on data specified in
paragraphs (a) (8) and (10) of this section to prevent discarding of
sublegal sized summer flounder in excess of 10 percent, by weight.
(c) Annual fishing measures. The Demersal Species Committee shall
review the recommendations of the Summer Flounder Monitoring Committee.
Based on these recommendations and any public comment, the Demersal
Species Committee shall recommend to the MAFMC measures necessary to
assure that the applicable specified F will not be exceeded. The MAFMC
shall review these recommendations and, based on the recommendations
and any public comment, recommend to the Regional Director measures
necessary to assure that the applicable specified F will not be
exceeded. The MAFMC's recommendations must include supporting
documentation, as appropriate, concerning the environmental and
economic impacts of the recommendations. The Regional Director shall
review these recommendations and any recommendations of the Commission.
After such review, the Regional Director will publish a proposed rule
in the Federal Register by October 15 to implement a coastwide
commercial quota and recreational harvest limit and additional
management measures for the commercial fishery, and will publish a
proposed rule in the Federal Register by February 15 to implement
additional management measures for the recreational fishery, if he/she
determines that such measures are necessary to assure that the
applicable specified F will not be exceeded. After considering public
comment, the Regional Director will publish a final rule in the Federal
Register to implement the measures necessary to assure that the
applicable specified F will not be exceeded.
(d) Distribution of annual quota. (1) The annual commercial quota
will be distributed to the states, based upon the following
percentages:
Annual Commercial Quota Shares
------------------------------------------------------------------------
Share
State (percent)
------------------------------------------------------------------------
Maine........................................................ 0.04756
New Hampshire................................................ 0.00046
Massachusetts................................................ 6.82046
Rhode Island................................................. 15.68298
Connecticut.................................................. 2.25708
New York..................................................... 7.64699
New Jersey................................................... 16.72499
Delaware..................................................... 0.01779
Maryland..................................................... 2.03910
Virginia..................................................... 21.31676
North Carolina............................................... 27.44584
------------------------------------------------------------------------
(2) All summer flounder landed for sale in a state shall be applied
against that state's annual commercial quota, regardless of where the
summer flounder were harvested. Any overages of the commercial quota
landed in any state will be deducted from that state's annual quota for
the following year.
(e) Quota transfers and combinations. Any state implementing a
state commercial quota for summer flounder may request approval from
the Regional Director to transfer part or all of its annual quota to
one or more states. Two or more states implementing a state commercial
quota for summer flounder may request approval from the Regional
Director to combine their quotas, or part of their quotas, into an
overall regional quota. Requests for transfer or combination of
commercial quotas for summer flounder must be made by individual or
joint letter(s) signed by the principal state official with marine
fishery management responsibility and expertise, or his/her previously
named designee, for each state involved. The letter(s) must certify
that all pertinent state requirements have been met and identify the
states involved and the amount of quota to be transferred or combined.
(1) Within 10 working days following the receipt of the letter(s)
from the states involved, the Regional Director shall notify the
appropriate state officials of the disposition of the request. In
evaluating requests to transfer a quota or combine quotas, the Regional
Director shall consider whether:
(i) The transfer or combination would preclude the overall annual
quota from being fully harvested.
(ii) The transfer addresses an unforeseen variation or contingency
in the fishery.
(iii) The transfer is consistent with the objectives of the Summer
Flounder FMP and Magnuson Act.
(2) The transfer of quota or the combination of quotas will be
valid only for the calendar year for which the request was made and
will be effective upon the filing by NMFS of a notice of the approval
of the transfer or combination with the Office of the Federal Register.
(3) A state may not submit a request to transfer quota or combine
quotas if a request to which it is party is pending before the Regional
Director. A state may submit a new request when it receives notice that
the Regional Director has disapproved the previous request or when
notice of the approval of the transfer or combination has been filed at
the Office of the Federal Register.
(4) If there is a quota overage among states involved in the
combination of quotas at the end of the fishing year, the overage will
be deducted from the following year's quota for each of the states
involved in the combined quota. The deduction will be proportional,
based on each state's relative share of the combined quota for the
previous year. A transfer of quota or combination of quotas does not
alter any state's percentage share of the overall quota specified in
paragraph (d) of this section.
Sec. 648.101 Closures.
(a) EEZ closure. The Regional Director shall close the EEZ to
fishing for summer flounder by commercial vessels for the remainder of
the calendar year by publishing notification in the Federal Register if
he/she determines that the inaction of one or more states will cause
the applicable F specified in Sec. 648.100(a) to be exceeded, or if the
commercial fisheries in all states have been closed. The Regional
Director may reopen the EEZ if earlier inaction by a state has been
remedied by that state, or if commercial fisheries in one or more
states have been reopened without
[[Page 35009]]
causing the applicable specified F to be exceeded.
(b) State quotas. The Regional Director will monitor state
commercial quotas based on dealer reports and other available
information and shall determine the date when a state commercial quota
will be harvested. The Regional Director shall publish notification in
the Federal Register advising a state that, effective upon a specific
date, its commercial quota has been harvested and notifying vessel and
dealer permit holders that no commercial quota is available for landing
summer flounder in that state.
Sec. 648.102 Time restrictions.
Vessels that are not eligible for a moratorium permit under
Sec. 648.4(a)(3) and fishermen subject to the possession limit may fish
for summer flounder from January 1 through December 31. This time
period may be adjusted pursuant to the procedures in Sec. 648.100.
Sec. 648.103 Minimum fish sizes.
(a) The minimum size for summer flounder is 13 inches (33 cm) TL
for all vessels issued a moratorium permit under Sec. 648.4(a)(3),
except on board party and charter boats carrying passengers for hire or
carrying more than three crew members, if a charter boat, or more than
five crew members, if a party boat;
(b) The minimum size for summer flounder is 14 inches (35.6 cm) TL
for all vessels that do not qualify for a moratorium permit, or party
and charter boats holding moratorium permits, but fishing with
passengers for hire or carrying more than three crew members, if a
charter boat, or more than five crew members, if a party boat.
(c) The minimum sizes in this section apply to whole fish or to any
part of a fish found in possession, e.g., fillets. These minimum sizes
may be adjusted pursuant to the procedures in Sec. 648.100.
Sec. 648.104 Gear restrictions.
(a) General. (1) Otter trawlers whose owners are issued a summer
flounder permit and that land or possess 100 or more lb (45.4 or more
kg) of summer flounder from May 1 through October 31, or 200 lb or more
(90.8 kg or more) of summer flounder from November 1 through April 30,
per trip, must fish with nets that have a minimum mesh size of 5.5-inch
(14.0-cm) diamond mesh or 6-inch (15.2-cm) square mesh applied
throughout the codend for at least 75 continuous meshes forward of the
terminus of the net, or, for codends with less than 75 meshes, the
minimum-mesh-size codend must be a minimum of one-third of the net,
measured from the terminus of the codend to the head rope, excluding
any turtle excluded device extension.
(2) Mesh sizes are measured by a wedge-shaped gauge having a taper
of 2 cm in 8 cm and a thickness of 2.3 mm inserted into the meshes
under a pressure or pull of 5 kg. The mesh size is the average of the
measurement of any series of 20 consecutive meshes for nets having 75
or more meshes, and 10 consecutive meshes for nets having fewer than 75
meshes. The mesh in the regulated portion of the net is measured at
least five meshes away from the lacings, running parallel to the long
axis of the net.
(b) Exemptions. The minimum mesh-size requirements specified in
paragraph (a)(1) of this section do not apply to:
(1) Vessels issued a summer flounder moratorium permit and fishing
from November 1 through April 30 in the ``exemption area,'' which is
east of the line that follows 72 deg.30.0' W. long. until it intersects
the outer boundary of the EEZ. Vessels fishing with a summer flounder
exemption permit shall not fish west of the line. Vessels issued a
permit under Sec. 648.4(a)(3)(iii) may transit the area west or south
of the line, if the vessel's fishing gear is stowed in a manner
prescribed under Sec. 648.100(e), so that it is not ``available for
immediate use'' outside the exempted area. The Regional Director may
terminate this exemption if he/she determines, after a review of sea
sampling data, that vessels fishing under the exemption are discarding
more than 10 percent, by weight, of their entire catch of summer
flounder per trip. If the Regional Director makes such a determination,
he/she shall publish notification in the Federal Register terminating
the exemption for the remainder of the exemption season.
(2) Vessels fishing with a two-seam otter trawl fly net with the
following configuration, provided that no other nets or netting with
mesh smaller than 5.5 inches (14.0 cm) are on board:
(i) The net has large mesh in the wings that measures 8 inches
(20.3 cm) to 64 inches (162.6 cm).
(ii) The first body section (belly) of the net has 35 or more
meshes that are at least 8 inches (20.3 cm).
(iii) The mesh decreases in size throughout the body of the net to
2 inches (5 cm) or smaller towards the terminus of the net.
(3) The Regional Director may terminate this exemption if he/she
determines, after a review of sea sampling data, that vessels fishing
under the exemption, on average, are discarding more than 1 percent of
their entire catch of summer flounder per trip. If the Regional
Director makes such a determination, he/she shall publish a notice in
the Federal Register terminating the exemption for the remainder of the
calendar year.
(c) Net modifications. No vessel subject to this part shall use any
device, gear, or material, including, but not limited to nets, net
strengtheners, ropes, lines, or chafing gear, on the top of the
regulated portion of a trawl net; except that, one splitting strap and
one bull rope (if present) consisting of line or rope no more than 3
inches (7.2 cm) in diameter may be used if such splitting strap and/or
bull rope does not constrict, in any manner, the top of the regulated
portion of the net, and one rope no greater than 0.75 inches (1.9 cm)
in diameter extending the length of the net from the belly to the
terminus of the codend along the top, bottom, and each side of the net.
``Top of the regulated portion of the net'' means the 50 percent of the
entire regulated portion of the net that (in a hypothetical situation)
will not be in contact with the ocean bottom during a tow if the
regulated portion of the net were laid flat on the ocean floor. For the
purpose of this paragraph (c), head ropes shall not be considered part
of the top of the regulated portion of a trawl net. A vessel shall not
use any means or mesh configuration on the top of the regulated portion
of the net, as defined in Sec. 648.104(e), if it obstructs the meshes
of the net or otherwise causes the size of the meshes of the net while
in use to diminish to a size smaller than the minimum specified in
Sec. 648.100(a).
(d) Mesh obstruction or constriction. (1) A fishing vessel may not
use any mesh configuration, mesh construction, or other means on or in
the top of the net, as defined in paragraph (c) of this section, that
obstructs the meshes of the net in any manner.
(2) No person on any vessel may possess or fish with a net capable
of catching summer flounder in which the bars entering or exiting the
knots twist around each other.
(e) Stowage of nets. Otter trawl vessels retaining 100 lb (45.3 kg)
or more of summer flounder from May 1 through October 31, or 200 lb
(90.6 kg) or more of summer flounder from November 1 through April 30,
and subject to the minimum mesh size requirement of paragraph (a)(1) of
this section may not have ``available for immediate use'' any net or
any piece of net that does not meet the minimum mesh size requirement,
or any net, or any piece of net, with mesh that is rigged in a manner
that is inconsistent with the minimum mesh size requirement. A net that
is stowed in conformance with one
[[Page 35010]]
of the methods specified in Sec. 648.23(b) and that can be shown not to
have been in recent use is considered to be not ``available for
immediate use.''
Sec. 648.105 Possession restrictions.
(a) No person shall possess more than eight summer flounder in, or
harvested from, the EEZ unless that person is the owner or operator of
a fishing vessel issued a summer flounder moratorium permit. Persons
aboard a commercial vessel that is not eligible for a summer flounder
moratorium permit are subject to this possession limit. The owner,
operator, and crew of a charter or party boat issued a summer flounder
moratorium permit are not subject to the possession limit when not
carrying passengers for hire and when the crew size does not exceed
five for a party boat and three for a charter boat.
(b) If whole summer flounder are processed into fillets, the number
of fillets will be converted to whole summer flounder at the place of
landing by dividing the fillet number by two. If summer flounder are
filleted into single (butterfly) fillets, each fillet is deemed to be
from one whole summer flounder.
(c) Summer flounder harvested by vessels subject to the possession
limit with more than one person on board may be pooled in one or more
containers. Compliance with the daily possession limit will be
determined by dividing the number of summer flounder on board by the
number of persons on board, other than the captain and the crew. If
there is a violation of the possession limit on board a vessel carrying
more than one person, the violation shall be deemed to have been
committed by the owner and operator.
(d) Owners and operators of otter trawl vessels issued a permit
under Sec. 648.4(a)(3) that fish with or possess nets or pieces of net
on board that do not meet the minimum mesh requirements and that are
not stowed in accordance with Sec. 648.104(f), may not retain 100 lb
(45.3 kg) or more of summer flounder from May 1 through October 31, or
200 lb (90.6 kg) or more of summer flounder from November 1 through
April 30. Summer flounder on board these vessels must be stored so as
to be readily available for inspection in standard 100-lb (45.3-kg)
totes or fish boxes having a liquid capacity of 18.2 gal (70 L), or a
volume of not more than 4,320 in \3\ (2.5 ft \3\ or 70.79 cm \3\).
Sec. 648.106 Sea turtle conservation.
This section will be suspended during the effectiveness of any
temporary regulations issued to regulate incidental take of sea turtles
in the summer flounder under authority of the ESA under parts 217, 222,
and 227 of this title. Such suspensions and temporary regulations will
be issued by publication in the Federal Register and will be effective
for a specified period of time, not to exceed 1 year.
(a) Sea turtle handling and resuscitation. The sea turtle handling
and resuscitation requirements specified in Sec. 227.72(e)(1) (i) and
(ii) of this title apply with respect to sea turtles incidentally taken
by a vessel fishing for summer flounder.
(b) Sea turtle monitoring and assessment program. (1) The Regional
Director will establish a monitoring and assessment program, in
cooperation with the MAFMC and the State of North Carolina, to measure
the incidental take of sea turtles in the summer flounder fishery,
monitor compliance with required conservation measures by trawlers, and
predict interactions between the fishery and sea turtles to prevent
turtle mortalities.
(2) A scientifically designed, observer-based monitoring program in
accordance with Sec. 648.11 may be used to gather scientific data
measuring the incidental take of turtles by trawlers in the summer
flounder fishery and to report turtle distribution and abundance.
(3) A cooperative sea turtle monitoring and assessment program
utilizing a variety of information, including aerial and vessel
surveys; onboard observers; individually tagged turtles; physical
parameters, such as sea surface temperatures, and reports from the sea
turtle stranding network; and other relevant and reliable information,
will assess and predict turtle distribution, abundance, movement
patterns, and timing to provide information to NMFS to prevent turtle
mortality caused by the summer flounder fishery.
(c) Required use of Turtle Excluder Devices (TED). The Regional
Director will require the use of a NMFS-approved TED by any vessels
engaged in summer flounder fishing operations and utilizing trawl gear
on or after October 15 as necessary to protect sea turtles. The
Regional Director will publish notification in the Federal Register
with the specific time period. Descriptions of NMFS-approved TEDs can
be found in Sec. 227.72(e)(4) of this title. This requirement applies
to vessels within the EEZ bounded on the north by a line along
37 deg.05' N. lat., bounded on the south by a line along 33 deg.35' N.
lat., and bounded on the east by a line 7 nm from the shoreward
boundary of the EEZ.
(d) Closure of the fishery. The Regional Director may close the
summer flounder fishery in the EEZ, or any part thereof, after
consultation with the MAFMC, the Director of the State of North
Carolina Division of Marine Fisheries, and the marine fisheries agency
of any other affected state, by publishing notification in the Federal
Register. The Regional Director shall take such action if he/she
determines a closure is necessary to avoid jeopardizing the continued
existence of any species listed under the ESA. The determination of the
impact on sea turtles must be based on turtle mortalities and
projections of turtle mortality by the NMFS monitoring and assessment
program. A closure will be applicable to those areas specified in the
notification and for the period specified in the notification. The
Regional Director will provide as much advance notice as possible,
consistent with the requirements of the ESA, and will have the closure
announced on channel 16 of the marine VHF radio. A closure may prohibit
all fishing operations, may prohibit the use of certain gear, may
require that gear be stowed, or may impose similar types of
restrictions on fishing activities. The prohibitions, restrictions, and
duration of the closure will be specified in the notification.
(e) Reopening of the fishery. (1) The Regional Director may reopen
the summer flounder fishery in the EEZ, or any part thereof, after
consultation with the MAFMC, the Director of the State of North
Carolina Division of Marine Fisheries, and the marine fisheries agency
of any other affected state, by publishing notification in the Federal
Register. The Regional Director may reopen the summer flounder fishery
in the EEZ, or any part thereof, if additional sea turtle conservation
measures are implemented and if projections of NMFS' sea turtle
monitoring program indicate that such measures will ensure that
continued operation of the summer flounder fishery is not likely to
jeopardize the continued existence of any species listed under the ESA.
(2) The Regional Director may reopen the summer flounder fishery in
the EEZ, or any part thereof, if the sea turtle monitoring program
indicates changed conditions and if projections of the sea turtle
monitoring program indicate that NMFS can ensure that continued
operation of the summer flounder fishery is not likely to jeopardize
the continued existence of any species listed under the ESA.
(f) Additional sea turtle conservation measures. (1) The Regional
Director may impose additional sea turtle conservation measures,
including tow-time requirements, in the EEZ, after consultation with
the MAFMC, the
[[Page 35011]]
Director of the State of North Carolina Division of Marine Fisheries,
and the marine fisheries agency of any other affected state, by
publishing notification in the Federal Register. The Regional Director
shall take such action if he/she determines further measures are
necessary to avoid jeopardizing the continued existence of any species
listed under the ESA or if such action would allow reopening of the
summer flounder fishery in the EEZ. The determination of the impact on
sea turtles must be based on turtle mortalities and projections of
turtle mortality by the NMFS monitoring and assessment program.
(2) Consistent with the procedures specified in Sec. 648.10, the
Regional Director may require that all or a certain portion of the
vessels engaged in fishing for summer flounder carry observers,
consistent with the requirements of Sec. 648.10, to gather data on
incidental capture of sea turtles and to monitor compliance with
required conservation measures. This requirement may apply to certain
types of vessels, certain areas, or during certain times of the year.
(g) Experimental projects. Notwithstanding paragraphs (a) through
(f) of this section, the Regional Director may authorize summer
flounder fishing, as a part of experimental projects to measure turtle
capture rates, to monitor turtle abundance, to test alternative gear or
equipment, or for other research purposes. Research must be approved by
the Regional Director, and it must not be likely to jeopardize the
continued existence of any species listed under the ESA. The Regional
Director will impose such conditions as he/she determines necessary to
ensure adequate turtle protection during experimental projects.
Individual authorizations may be issued in writing. Authorizations
applying to multiple vessels will be published in the Federal Register.
Subpart H--Management Measures for the Scup Fishery
Sec. 648.124 Gear restrictions.
(a) General. Otter trawl vessels that land or possess 4,000 lb or
more (1,814.4 kg or more) of scup harvested in or from the EEZ must
fish with nets that have a minimum mesh size of 4 inches (10.2 cm)
applied throughout the codend for at least 75 continuous meshes forward
of the terminus of the net, or, for codends with less than 75 meshes,
the minimum-mesh-size codend must be a minimum of one-third of the net,
measured from the terminus of the codend to the center of the head
rope, excluding any turtle excluder device extension.
(b) Mesh-size measurement. Mesh sizes will be measured according to
the procedure described in Sec. 648.104(a)(2).
(c) Net modification and mesh obstruction and constriction. Same as
Sec. 648.104 (c) and (d) except substitute the word ``scup'' for the
words ``summer flounder.''
(d) Stowage of nets. Otter trawl vessels retaining 4,000 pounds or
more (1,814.4 or more kg) of scup harvested in or from the EEZ, and
subject to the minimum mesh requirement specified in paragraph (a) of
this section may not have available for immediate use any net, or any
piece of net, not meeting the minimum mesh size requirement, or mesh
that is rigged in a manner that is inconsistent with the minimum mesh
size. A net that conforms to the specifications specified in
Sec. 648.23(b) and that can be shown not to have been in recent use is
considered to be not ``available for immediate use.''
Sec. 648.125 Minimum fish sizes.
(a) The minimum size for scup is 9 inches (22.9 cm) TL for all
vessels engaged in commercial fishing.
(b) The minimum size for scup is 7 inches (17.8 cm) TL for all
vessels that are engaged in recreational fishing.
(c) The minimum size applies to whole fish or any part of a fish
found in possession, e.g., fillets.
PARTS 625, 650, 651, 652, 655, AND 657--[REMOVED]
4. Parts 625, 650, 651, 652, 655, and 657 are removed.
[FR Doc. 96-16660 Filed 7-1-96; 8:45 am]
BILLING CODE 3510-22-P
