[Federal Register Volume 64, Number 17 (Wednesday, January 27, 1999)]
[Rules and Regulations]
[Pages 4030-4044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1766]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 600
[Docket No. 980519132-9004-02; I.D. 022498F]
RIN 0648-AK49
Magnuson-Stevens Act Provisions; List of Fisheries and Gear, and
Notification Guidelines
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
[[Page 4031]]
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule that establishes a list of
fisheries and fishing gear used in those fisheries under the authority
of each regional fishery management council (Council), or under
authority of the Secretary of Commerce (Secretary) with respect to
Atlantic highly migratory species (HMS). Effective 180 days after the
date of publication of this list, no person or vessel may employ
fishing gear or participate in a fishery not included in this list
without giving 90 days advance notice to the appropriate Council or the
Secretary with respect to Atlantic HMS. This final rule also
establishes a process for giving such notification to the appropriate
Council or to the Secretary. NMFS also issues guidelines for
determining when a fishing gear or a fishery is sufficiently different
from those listed to require notification to the appropriate authority.
The list of fisheries and gear and the guidelines apply only to
fisheries and gear that occur within the U.S. exclusive economic zone
(EEZ). The list, notice requirements, and guidelines contained in this
final rule are required by the Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act).
DATES: This rule is effective February 26, 1999, except that
Sec. 600.725(v) is effective July 26, 1999.
ADDRESSES: Copies of the regulatory impact review for this action can
be obtained from Dr. Gary C. Matlock, Director, Office of Sustainable
Fisheries, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
Comments regarding the collection-of-information requirement contained
in this rule should be sent to the above address and to the Office of
Information and Regulatory Affairs, Office of Management and Budget
(OMB), Washington, DC 20503 (Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Mark Millikin, NMFS, (301) 713-2344.
SUPPLEMENTARY INFORMATION:
Background
This rulemaking is required by the Magnuson-Stevens Act (16 U.S.C.
1801 et seq.), as amended by the Sustainable Fisheries Act, which was
signed into law on October 11, 1996. Section 305(a) of the Magnuson-
Stevens Act requires that the Secretary publish in the Federal
Register, after notice and an opportunity for public comment, a list of
fisheries under the authority of each Council and all fishing gear used
in such fisheries. A fish whether targeted or not, may be retained only
if it is taken within a listed fishery, is taken with a gear authorized
for that fishery, and is taken in conformance with all other applicable
regulations. This list is based on information submitted by the
Councils and by the Director, Office of Sustainable Fisheries, NMFS
(Director), in the case of Atlantic HMS. The Magnuson-Stevens Act
requires the issuance of guidelines for determining when a fishing gear
or a fishery is sufficiently different from those listed as to require
fishermen or other individuals to notify a Council or the Secretary
under Sec. 305(a)(3).
A proposed rule for this action was published in the Federal
Register on June 4, 1998 (63 FR 30455), requesting comments through
July 6, 1998. The preamble of the proposed rule contained some
background information for this rulemaking that has not changed so it
is not repeated here. That information includes: (1) How information
for the list of fisheries and gear was collected, (2) prohibitions on
use of unlisted gear, and (3) procedures for notification of new gear
or fisheries. Background information from the proposed rule that has
been modified is included again in the preamble of this final rule.
That information includes: (1) Gear names and definitions related to
the issue of deployment, (2) the relationship of the rule to other
Federal regulations, and (3) procedures after receiving notification
for other than Atlantic HMS. The portion of the preamble containing the
procedures after receiving notification for species other than Atlantic
HMS is repeated for the convenience of the public. List of Fisheries
and Gear
The list of gear, wherever possible, avoids gear names that also
imply a method of deployment. This explains the absence of ``gear''
such as pelagic longline, pelagic trawl, bottom trawl, otter trawl, or
drift gillnet in the list. For example, ``bottom trawl'' and ``pelagic
trawl'' are considered deployment methods for trawl gear, rather than
gear types. Terms such as ``pelagic,'' ``bottom,'' and ``drift'' are
modifiers that describe where in the water column the specific gear
type is used. It is noteworthy however, that in the proposed rule,
``hand harvest'' was included in the list only under fisheries where it
was the only allowed method of harvest--the Caribbean Queen Conch FMP
and the Coral Reef FMPs in the South Atlantic and the Gulf of Mexico.
In response to public comments, in this final rule, ``hand harvest'' is
added as an allowable gear type to various mollusk and crustacean
fisheries that commenters felt should also have ``hand harvest''
included as an allowable gear.
Relationship of This Rule to Other Federal Fishery Regulations
Beyond this rule, fisheries and associated gear continue to be
managed by implementing regulations in 50 CFR chapter VI for the
various FMPs under authority of the Councils and the Secretary. FMPs
often address issues about gear such as structure, size, shape,
material, deployment, seasonality of allowed use, prohibitions, or
other features of gear and its use. Therefore, the list of fisheries
and allowable gear contained in this final rule is not intended to
alter or supersede other regulations related to fisheries and gear.
It is NMFS' intent that this final rule will not affect
experimental fisheries conducted for a year or less elsewhere under 50
CFR chapter VI.
NMFS is not aware of any Treaty Indian tribe or subsistence
fisheries in the EEZ other than those listed in Sec. 600.725(v). This
action is not intended to supersede or otherwise affect exemptions that
exist for fisheries or Native American harvest under Treaty Indian
fisheries. In the proposed rule (63 FR 30455; June 4, 1998), NMFS
announced that it was particularly interested in receiving public
comment on this topic, but received none.
Procedures After Receiving Notification
Species Other Than Atlantic HMS
After receiving notification regarding intended participation in an
unlisted fishery or use of unlisted gear, a Council will begin
consideration of the notification and immediately send a copy of the
notification to the appropriate NMFS Regional Administrator (RA). If,
after consideration of the notification and accompanying information, a
Council finds that the new gear or fishery would not compromise the
effectiveness of conservation and management efforts under the
Magnuson-Stevens Act, the Council will recommend to the RA that the
authorized list of fisheries and gear be amended, provide rationale and
supporting analysis, and provide a draft proposed rule to amend the
authorized list of fisheries and gear for publication in the Federal
Register. If the Council finds that the proposed new gear or fishery
will be detrimental to conservation and management efforts, the Council
will recommend to the RA that the authorized list of fisheries and gear
not be amended and that a proposed rule not be published, give reasons
for its recommendation, and may request NMFS to issue emergency or
interim regulations and begin preparation of an FMP or amendment to an
FMP, if appropriate. Some examples
[[Page 4032]]
of how a new gear or fishery could be judged as ``compromising the
effectiveness of conservation and management efforts'' would be if: (1)
Fish stock rebuilding objectives would be seriously affected, (2)
essential fish habitat would be severely impacted, (3) bycatch problems
in the fishery would be further exacerbated, or (4) severe conflicts
would result with existing gear or fisheries. This listing of examples
of factors that would compromise the effectiveness of conservation and
management efforts is not intended to be all-inclusive. The Councils
and NMFS will need to consider each request on a case-by-case basis.
Based on the information provided in the notification and by the
Council, NMFS will make the final determination whether the new gear or
fishery would compromise the effectiveness of conservation and
management efforts under the Magnuson-Stevens Act and whether to
publish a proposed rule to amend the list of fisheries and gear.
If the initial determination is positive, NMFS will publish the
proposed rule, with a 30-day comment period. Following the end of the
comment period, NMFS will either approve or disapprove the change to
the list, based on the potential impacts on the effectiveness of
conservation and management efforts. If approved, NMFS will publish a
final rule revising the list, and notify the applicant of the final
approval. If the use of the gear or participation in a fishery is
determined to be detrimental to conservation and management efforts
under the Magnuson-Stevens Act, the proposed addition to the list will
be disapproved, NMFS will notify the applicant and the appropriate
Council of the negative determination and the reasons for the
determination, and may publish emergency or interim regulations in the
Federal Register to prohibit or restrict the use of the unlisted gear
or fishing in the unlisted fishery. Upon notification by NMFS that the
proposed revision has been disapproved, the Council should begin
preparation of an FMP or amendment to an FMP in order to provide
permanent regulations relative to that gear type or fishery.
If the initial determination by NMFS is negative, because use of
the gear or participation in the fishery is likely to compromise
conservation and management efforts under the Magnuson-Stevens Act, and
it is unlikely that additional new information would be gained from a
public comment period, then NMFS will notify the applicant and the
Council of the negative determination and the reasons for that
determination, and may publish emergency or interim regulations in the
Federal Register to prohibit or restrict the use of the unlisted gear
or fishing in the unlisted fishery. The Council should then begin
preparation of an FMP or an amendment to an FMP to provide permanent
regulations relative to that gear type or fishery.
Atlantic HMS
Notification of intent to use an unlisted gear or to participate in
an unlisted fishery for Atlantic HMS should be addressed to the
Director. After receiving such notification, NMFS would collect
relevant information (including any information/data collected from the
experimental fishing permit (EFP) program) and use the advisory panel
process. A determination will be made whether the new gear or new
fishery would compromise the effectiveness of conservation and
management programs and whether to publish a proposed rule to amend the
list of gear and fisheries. The EFP program allows NMFS to collect data
such as catch rates of target and non-target finfish and protected
species bycatch.
If the determination is positive, a proposed rule to amend the list
of gear and fisheries will be published in the Federal Register for
public comment. Following the end of the public comment period, NMFS
will consider comments or new information received relative to the
effect of the new gear or fishery on conservation and management
programs, and will either approve or disapprove the proposed amendment.
If approved, the applicant will be notified, and a final rule will be
published amending the list of fisheries and gear. If, after receiving
public comment, NMFS disapproves the proposed amendment, the applicant
will be notified of the disapproval, including reasons for the
disapproval, and NMFS may publish emergency or interim regulations and
subsequently develop or amend the FMP to prohibit or restrict the use
of the unlisted gear or participation in the unlisted fishery.
If the initial determination is negative, NMFS will notify the
applicant, including the reasons for the disapproval, and may publish
emergency or interim regulations and subsequently develop or amend an
FMP to prohibit or restrict the use of the unlisted gear or
participation in the unlisted fishery.
Comments and Responses
Seventeen sets of comments were received regarding the list of gear
by fisheries and the notification procedures from various individuals
and organizations.
Comment 1: Historically, if a fishery has not been addressed
through the FMP process, the regulations of adjacent states have taken
precedence. This has allowed the various states the ability to manage
those fisheries under regulations that are consistent with the
regulations in their own waters. Many fisheries that are prosecuted
mainly in state waters which may occasionally intrude into Federal
waters. An example from Louisiana is the oyster fishery, which
occasionally harvests from Federal waters. Establishment of a set of
Federal rules of allowable gears and fisheries would seem to have far-
reaching implications in this type of situation. The fishery might be
in violation in Federal waters, though completely legal in the adjacent
state waters, where the majority of the resource resides.
Alternatively, the fishery might be found to be under Federal
management, and the brief list of gears would be the only regulations
on the fishery, undermining the effectiveness of state regulations.
Response: The list of fisheries and gear contained in this final
rule is required by the Magnuson-Stevens Act. NMFS has attempted to
compile a list that includes all existing gear and fisheries in the EEZ
(i.e., within the jurisdiction of the fishery management councils),
unless otherwise prohibited. The lack of a gear or fishery in the list
does not preclude the use of a gear or occurrence of a fishery in state
waters. Under procedures established in this rulemaking, an individual
interested in using a new gear or participating in a fishery in the EEZ
not already listed may notify the appropriate fishery management
council or the Director as described in Sec. 600.747.
Comment 2: The proposed definition for ``dredge'' could either
include wing nets or include oyster dredges with mesh bags, depending
on how it is read. Also, it does not include suction dredges that may
be used in some areas for clam harvest.
Response: The definition of ``dredge'' was structured to include
all types of dredges currently used in the EEZ. The definition has been
modified in this final rule to include suction dredges.
Comment 3: The proposed definition of ``hoop net'' is too vague.
Too many gears could fall under that definition; instead use the
following: ``A cone-shaped net of vegetable or synthetic materials
having throats or flues and which are stretched over a series of rings
or hoops to support the webbing.''
Response: The definition for ``hoop net'' has been changed in the
final rule
[[Page 4033]]
to be consistent with the suggestion by the commenter.
Comment 4: The proposed definitions for ``lampara net'' and purse
seine'' are functionally very similar. They should be either combined
into a single definition, or more clearly distinguished.
Response: The definitions have been modified to more clearly
distinguish them in this final rule.
Comment 5: For the ``Gulf of Mexico Shrimp'' and ``Recreational
Shrimp Fishery,'' under the Gulf of Mexico Fishery Management Council,
butterfly net, skimmer, cast net, and dip net gear should be added.
These gears are typically used only in state waters, but may possibly
be used in Federal waters.
Response: Except for dip nets, these gears are not normally used in
the EEZ, and have not been added to the list of fisheries and gear in
this final rule.
Comment 6: For the ``Recreational Fishery (non-FMP),'' cast net,
hoop net, tong (for oyster), pipes, drums, cans, buckets, and tires,
yo-yo or trigger devices, trotline, bow and arrow, barbless spear (for
flounder) and spear (for garfish) should be added.
Response: NMFS believes that all these gears except for hoop nets
are for inshore use only, and has not added them to allowable gear for
this fishery in this final rule.
Comment 7: The fishery, ``Non-groundfish Finfish (non-FMP),''
should be added for species such as black drum, sheepshead, flounder,
and bluefish, and minor species such as cutlassfish and anchovies, that
might be taken incidentally through gears such as trawl, gillnet,
longline, handline, rod and reel, bandit gear, and many others. This
relates to the issue that the list of fisheries in this rule applies to
fisheries presently under state jurisdiction.
Response: NMFS agrees that this fishery and associated gear occur
in the EEZ, and has added them to the list of fisheries and gear in
this final rule.
Comment 8: Several commenters felt that the proposed rule
misinterpreted the intent and language of section 305 of the Magnuson-
Stevens Act, which established requirements for notifying the Councils
before a new gear or fishery is introduced. It does not establish a
system to identify gear as ``allowable.'' The proposed rule refers to
gears on the list as ``allowable,'' implying that gear not on the list
is ``not allowed.'' This is an inaccurate interpretation.
Response: Section 305(a)(3) of the Magnuson-Stevens Act states:
``Effective 180 days after publication of such list, no person or
vessel may employ fishing gear or engage in a fishery not included in
such list * * *.'' NMFS believes, therefore, that its interpretation is
correct in referring to gear in the list as ``allowable gear.''
Comment 9: One commenter stated that the proposed rule may
misinterpret the language of the Magnuson-Stevens Act by giving the
Secretary discretion to reject additions to the list recommended by the
Council and to make changes not recommended by the Council. The statute
does not give authority to the Secretary to make changes to the list,
absent a recommendation by a Council. Section 305(a)(4) clearly states
that the Secretary ``shall publish a revised list'' (emphasis added)
after receiving any change the Council ``deems appropriate.'' The
commenter's interpretation of this language is that the Secretary must
publish a proposed rule for public comment when a Council suggests a
change to the list. If the Secretary does not have to publish a
proposed rule, the public will not have an opportunity to counter an
adverse determination by NMFS--and may not even know such a
determination is being considered. The language in the proposed rule
only makes sense if the list is interpreted as a list of ``allowed''
fisheries. The commenter does not believe this is the correct
interpretation.
Response: While the Secretary and NMFS value the opinions, advice,
and recommendations made by the Councils, the decision on implementing
a regulatory action and issuing a rulemaking under the Magnuson-Stevens
Act rests with the Secretary. An interpretation that the Secretary must
implement whatever a Council recommends would run afoul of the
Appointments Clause of the Constitution.
Comment 10: One commenter suggested that the list for gear and
fisheries be based on permit category, rather than geographic area;
this may shorten the list and would clearly identify allowed gear
types. The commenter also recommended that the gear designations be
more specific so fishermen can clearly understand what gear is allowed.
Response: The gear by fisheries is listed by geographic area
because Sec. 305(a)(1) of the Magnuson-Stevens Act focuses on the list
of all fisheries under the authority of each Council, irrespective of
whether permits exist for a given fishery. More general definitions
were chosen for the list of gear by fisheries, to meet the requirements
of this provision while maintaining simplicity and flexibility in its
implementation. More specific descriptions and regulations to prohibit
or otherwise restrict the gear in question can be found elsewhere in 50
CFR part 600.
Comment 11: The regulation may leave the industry vulnerable to
inaction by the Councils. While new gear may be used after the 90-day
advance notice period, there is no requirement for the Councils to act
within that time frame, so the fishermen may not know when the Council
will reply. This will inhibit investment of time and money in
technological improvements. Therefore, the commenter recommended that,
after a specific time period (180 days or less), new gear and fisheries
should be added to the list unless the Council has notified the
fishermen that it will not recommend the addition.
Response: Unless specifically prohibited by rulemaking, the
individual who has served notice may use a new gear in an existing
fishery or may participate in a new fishery after the 90-day waiting
period. NMFS will endeavor to process the request within the 90-day
period.
Comment 12: The proposed rule should have consistently applied the
policy stated in the Supplementary Information section that ``while
gear types are included on the list, methods of gear deployment were
not.'' The example used is that ``jig'' and ``troll'' are not listed as
gear because they are just methods of using hook-and-line gear, yet
definitions are added for buoy gear and longline (methods of deploying
hook-and-line gear) and pair trawl (a method for deploying a trawl
net).
Response: Gear types differentiated by deployment are not included
unless absolutely necessary. For example, ``pair trawl'' is no longer
listed separately, but is included in the definition for ``trawl.'' In
a few instances, however, the method of deployment had to be included
for gear that is significantly different than others in the category
and for clarity in the description of the gear in question.
Comment 13: The proposed rule creates a ``Catch 22'' for the
Councils and industry. Fishermen would be required to advise the
Council only if a new gear or fishery is not on the list. The proposed
rule uses broad definitions, to avoid the problem of trying to describe
the countless gears and fisheries in use. These definitions are so
broad that almost any new gear or fishery may fit under the definitions
and the proposed rule will serve little useful purpose. An example is
the Mid-Atlantic Fishery Management Council non-FMP ``mixed trawl
fishery'--any trawl for any species not covered by an FMP would fit
this listing.
Response: The general wording for definitions of gear was
purposefully used to provide flexibility for fishermen
[[Page 4034]]
and in an attempt to make the authorized list of fisheries and gear
easy to refer to and understand. NMFS believes that variations of
existing gear would not generally constitute a different gear. NMFS is
trying to achieve a middle ground that would implement a process that
is not overly burdensome to the fishermen and the Councils. At the same
time, significantly new gear or fisheries should fall under the
procedures of this rule. In any event, the Councils have the authority
to regulate gear (e.g., size, shape, materials, deployment, seasons,
areas) and fisheries (e.g., areas, seasons) more specifically if there
is an identified reason to do so.
Comment 14: The New England Fishery Management Council is not
submitting a list of fisheries or gear that are not included in the
proposed rule. It expressed concern that the creation of such a list
could easily overlook a gear or fishery, unfairly placing a
notification burden on that fishery. The inconsistent structure of the
list makes such a mistake probable. Therefore, it recommended that all
gear types be listed for every fishery unless specifically prohibited
by existing regulations.
Response: This rule satisfies the requirements of Sec. 305(a) of
Magnuson-Stevens Act (i.e., to compile a list of fisheries and gear in
use in the EEZ, categorized by Council, and of NMFS, in the case of
Atlantic HMS). All allowable gear and fisheries known to NMFS have been
listed.
Comment 15: There should not be any exception to the full 90-day
waiting period before using a new gear or participating in a new
fishery. This is the minimum period necessary for the Councils to have
an opportunity to review and decide on a proposed addition to the list.
Any shorter period would not provide adequate time for careful review
of the conservation impacts of a new gear or fishery.
Response: The provisions of Sec. 305(a) of the Magnuson-Stevens Act
do not prohibit the Secretary from amending the list of gear and
fisheries within the 90-day notification period. NMFS will try to
expeditiously process the notification while meeting all the
requirements of this section.
Comment 16: The rule has not been published according to the
timeline set by the SFA.
Response: NMFS made every effort to comply with the statutory
deadlines of the SFA. However, the complexity of the proposed rule and
the importance of the contents to the public required diligence and
deliberation.
Comment 17: One commenter asked for listing electric jigging
machines, bandit gear, and trolling green sticks as fishing gear used
in various Atlantic HMS (tunas, swordfish, and mahi mahi) fisheries.
The commenter noted that these gear types are all currently being used
in these fisheries, partly due to the concerns over the future of
pelagic longlining.
Response: NMFS recognizes that various gear may be used to enhance
productivity of these fisheries. Bandit gear is currently authorized in
the Atlantic tunas fishery and as a bycatch gear type in the swordfish
fishery (two fish per trip). Green sticks are allowed for Atlantic
tunas, if the vessel is carrying a General category permit. Jigging
machines are not authorized for Atlantic tunas nor for Atlantic
swordfish, although they could be allowed a two swordfish per trip
bycatch allowance if used to target other species.
Changes From the Proposed Rule
Section 600.725(v) in the proposed rule has been revised to
indicate that the list of fisheries and gear in that paragraph is
intended to include allowable gear for harvest and retention of a fish,
whether that fish is targeted or not. If the list of gear applied only
to fish that were targeted, it would be extremely difficult to
determine whether a fish caught and retained was legally taken under
provisions of this rule. The intent of this rule is that fish in a
listed fishery should not be allowed to be retained if caught with gear
other than that listed under that fishery to protect the resources from
development of uncontrolled fisheries or introduction of potentially
harmful gear.
Section 600.746 in the proposed rule has been changed to
Sec. 600.747 in this final rule because a new Sec. 600.746 was added by
a final rule for an unrelated action published on May 18, 1998 (63 FR
27217), effective on June 17, 1998. Similarly, Sec. 600.725(q) in the
proposed rule is changed to Sec. 600.725(v) in this final rule because
paragraphs (q), (r), (s), (t), and (u) were added to this section in
the same final rule (63 FR 27217, May 18, 1998) mentioned above.
Because of comments received from various Councils and NMFS
Regional Offices, this final rule contains definitions for ``Cast
net,'' ``Hand harvest,'' ``Hook-and-line,'' ``Pot,'' and
``Submersible'' that were not defined in Sec. 600.10 of the proposed
rule. The definitions for ``Allowable chemical,'' ``Barrier net,''
``Dredge,'' ``Hoop net,'' and ``Lampara net'' have been changed in the
final rule.
In the table of the list of authorized fisheries and gear in
Sec. 600.725(v), the following changes have been made in accordance
with comments received from various Councils, NMFS Regional Offices,
state agencies, and members of the public:
1. Under the heading ``New England Fishery Management Council,''
the following changes have been made:
a. ``Hand harvest'' and ``recreational fisheries'' have been added
to the Atlantic Sea Scallops Fishery FMP.
b. ``Rod and reel'' has been added to the groundfish hook and line
fishery for the Northeast Multispecies Fishery FMP.
c. For the American Lobster Fishery FMP, the ``hand harvest
fishery'' has been added and ``hand harvest'' has also been added to
the gear for the recreational fishery.
d. The Striped Bass Fishery (non-FMP), the Surf Clam and Ocean
Quahog Fishery FMP, and the Hagfish Fishery (non-FMP) have been added.
e. For the Atlantic Halibut Fishery (non-FMP), ``handline,''
``gillnet,'' and ``trawl'' have been added as allowable gear.
f. ``Hand harvest fishery'' has been added to the Atlantic Mussel/
Sea Urchin Fishery (non-FMP),
g. ``Hook and line'' has been added to the Atlantic Skate Fishery
(non-FMP).
h. The ``demersal longline fishery,'' ``dredge fishery,'' and
``trap/pot fishery'' have been added to the Monkfish Fishery (non-FMP).
2. Under the heading ``Mid-Atlantic Fishery Management Council''
the following changes have been made:
a. The ``striped bass fishery (non-FMP)'' has been added.
b. The ``bandit gear fishery'' has been added to the Atlantic
Mackerel, Squid, and Butterfish Fishery FMP.
c. The ``Surf Clam/Ocean Quahog Fishery (FMP)'' has been divided
into a ``dredge fishery'' and a ``recreational fishery.''
d. The ``hand harvest fishery'' has been added to the ``Atlantic
Sea Scallop Fishery FMP'' and the ``American Lobster Fishery FMP.''
e. The ``demersal longline fishery'' has been added to the monkfish
fishery (non-FMP).
f. The tilefish fishery (non-FMP) and the dogfish fishery (non-FMP)
have been added along with associated fisheries and allowable gear
types.
3. Under the heading, ``South Atlantic Fishery Management
Council,'' ``powerhead'' has been added as an allowable gear to the
commercial fishery of the South Atlantic Snapper-Grouper Fishery FMP,
and the ``sargassum fishery'' and its accompanying gear (trawl) has
been added.
[[Page 4035]]
4. Under the heading, ``Gulf of Mexico Fishery Management
Council,'' the following changes have been made:
a. A new category has been added, ``oyster fishery (non-FMP)'' with
associated gear.
b. The ``Gulf of Mexico shrimp trawl fishery'' has been changed to
the ``Gulf of Mexico commercial shrimp fishery'' and several gear types
other than ``trawl'' have been added.
c. ``Non-groundfish finfish (non-FMP)'' and associated gear have
been added to address possible harvest of species such as black drum,
sheepshead, flounder, bluefish, cutlassfish, and anchovies.
5. Under the heading, ``Caribbean Fishery Management Council,'' the
``hand harvest fishery'' has been added to the ``Caribbean Spiny
Lobster FMP'' and ``rod and reel'' has been added as a gear for the
``recreational fishery for Caribbean pelagics (non-FMP).''
6. Under the heading, ``Pacific Fishery Management Council,'' the
following changes have been made:
a. The ``Pacific halibut fishery'' has been properly labeled as a
``non-FMP,'' and subdivided into the ``longline/setline fishery'' and
``hook-and-line fishery.''
b. The ``California halibut trawl'' and ``trammel net fishery''
have been added.
c. ``Jack mackerel'' has been added to the ``Pacific sardine,
Pacific mackerel, Pacific saury, Pacific bonito, Jack mackerel purse
seine fishery.''
7. Under the heading, ``North Pacific Fishery Management Council,''
the following changes have been made:
a. ``Diving gear'' has been added to the ``Alaska Scallop Fishery
FMP.''
b. The ``Gulf of Alaska Groundfish Fishery FMP'' with associated
fisheries and gear has been added.
8. Under the heading, ``Western Pacific Fishery Management
Council,'' the following changes have been made:
a. The following new categories have been added along with
associated fisheries and gear: ``western Pacific crustacean (non-
FMP),'' ``western Pacific precious corals (non-FMP),'' ``western
Pacific pelagics (non-FMP),'' ``western Pacific coastal pelagics (non-
FMP),'' ``western Pacific squid/octopus (non-FMP),'' and ``western
Pacific shallow reef (non-FMP).''
b. The ``gillnet fishery (non-FMP)'' and the ``recreational fishery
(non-FMP)'' have been deleted.
c. Under the ``Western Pacific Bottomfish Fishery FMP,'' the
``bottomfish handline fishery,'' has been deleted, and the
``recreational fishery'' has been moved to a new category, ``the
``western Pacific bottomfish fishery (non-FMP).''
d. Under the ``Western Pacific Pelagics FMP,'' the dip net/hoop net
fishery'' and ``pole and line fishery'' have been deleted. Also, under
the same FMP, the more specifically named fisheries, ``tuna handline/
hook and line,'' and ``swordfish, tuna, billfish, mahi mahi, wahoo,
shark longline/setline fishery'' have been replaced by the more general
headings, ``hook and line fishery'' and ``longline fishery.''
9. Under the heading, ``Secretary of Commerce,'' the following
changes have been made:
a. ``Harpoon fishery'' is removed from the ``Atlantic Sharks FMP''
and from the ``Atlantic Billfish FMP.''
b. ``Bandit gear'' and ``harpoon'' have been removed from the gear
listed for the ``recreational fishery'' for the ``Atlantic tunas (non-
FMP).''
c. ``Bandit gear'' has been added to the gear in the ``hook and
line fishery'' under the ``Atlantic Swordfish FMP.''
d. ``Bandit gear'' and ``handline'' have been removed from the
``hook and line fishery'' for the ``Atlantic Billfish FMP.''
NOAA codifies its OMB control numbers for information collection at
15 CFR part 902. Part 902 collects and displays the control numbers
assigned to information collection requirements of NOAA by OMB pursuant
to the Paperwork Reduction Act (PRA). This final rule codifies OMB
control number 0648-0346 for 50 CFR 600.725 and 600.747.
Under NOAA Administrative Order 205-11, dated December 17, 1990,
the Under Secretary for Oceans and Atmosphere has delegated to the
Assistant Administrator for Fisheries, NOAA, the authority to sign
material for publication in the Federal Register.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration when this rule was proposed, that, if
adopted, it would not have a significant impact on a substantial number
of small entities. This action does not change the analyses already
completed nor the conclusions made under the Regulatory Flexibility Act
(RFA) for any gear that can be used in a fishery or gear that is
prohibited seasonally, or year round, for any previous rulemakings for
fisheries under 50 CFR parts 600, 622, 630, 640, 644, 648, 649, 654,
660, 678, and 679. NMFS' guidelines for preparation of economic
analyses to comply with the RFA assume that a ``substantial number'' of
small entities would generally be 20 percent of the total universe of
small entities affected by the regulation. A regulation would have a
``significant impact'' on a substantial number of small entities if any
of the following criteria are met: Annual gross revenues are reduced by
more than 5 percent, total costs of production are increased by more
than 5 percent, compliance costs for small entities are at least 10
percent higher than compliance costs as a percent of sales for large
entities, or the action results in a cessation of business operations
of 2 percent or more of small entities affected by the action. None of
the aforementioned criteria were met by this action. The formalized
list of fisheries currently in the EEZ and gear within those fisheries
does not change any costs or revenues for members of the fishing
industry. The new procedure that will be required before a fisherman
may participate in a new fishery or employ a new gear in an existing
fishery will affect only that small group of individuals (about 20 per
year) having to comply with the notification procedure because of
reporting requirements associated with it. As a result, a regulatory
flexibility analysis was not prepared for this action. Any future rule
prohibiting or restricting use of gear or prosecution of a fishery will
be analyzed in accordance with the RFA.
This rule contains a collection-of-information requirement subject
to the Paperwork Reduction Act (PRA). This collection-of-information
requirement has been approved by OMB and assigned the number 0648-0346.
Public reporting burden for this collection of information has been
revised from the average estimate of 1 hour per response to 1\1/2\
hours per response for Council notification of entry into a new fishery
or use of a new gear in a current fishery, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding these burden
estimates or any other aspect of this collection of information,
including suggestions for reducing this burden, to NMFS and OMB (see
ADDRESSES).
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a 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.
[[Page 4036]]
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 600
Administrative practice and procedure, Confidential business
information, Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics.
Dated: January 20, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 15 CFR chapter IX and 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), in the table, under 50 CFR, the
entries for Secs. 600.725 and 600.747 are added to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
Current OMB
control
CFR part or section where where the information number (all
collection requirement is located numbers begin
with 0648-)
* * * * *
50 CFR:
* * * * *
600.725................................................. -0346
600.747................................................. -0346
* * * * *
Chapter VI
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
1. The authority citation for part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
2. In Sec. 600.10, the definition for ``Trawl'' is revised and new
definitions for ``Allowable chemical'', ``Bandit gear'', ``Barrier
net'', ``Bully net'', ``Buoy gear'', ``Cast net'', ``Dip net'',
``Dredge'', ``Hand harvest'', ``Handline'', ``Hook and line'', ``Hoop
net'', ``Lampara net'', ``Longline'', ``Pot'', ``Powerhead'', ``Purse
seine'', ``Rod and reel'', ``Seine'', ``Slurp gun'', ``Snare'',
``Spear'', ``Submersible'', ``Tangle net dredge'', ``Trammel net'', and
``Trap'', are added in alphabetical order to read as follows:
Sec. 600.10 Definitions.
* * * * *
Allowable chemical means a substance, generally used to immobilize
marine life so it can be captured alive, that, when introduced into the
water, does not take Gulf and South Atlantic prohibited coral (as
defined at 50 CFR 622.2) and is allowed by Florida or Hawaii or the
U.S. Pacific Insular Area for the harvest of tropical fish.
* * * * *
Bandit gear means vertical hook and line gear with rods that are
attached to the vessel when in use. Lines are retrieved by manual,
electric, or hydraulic reels.
Barrier net means a small-mesh net used to capture coral reef or
coastal pelagic fishes.
Bully net means a circular frame attached at right angles to a pole
and supporting a conical bag of webbing.
Buoy gear means fishing gear consisting of a float and one or more
lines suspended therefrom. A hook or hooks are on the lines at or near
the end. The float and line(s) drift freely and are retrieved
periodically to remove catch and rebait hooks.
Cast net means a circular net with weights attached to the
perimeter.
* * * * *
Dip net means a small mesh bag, sometimes attached to a handle,
shaped and framed in various ways. It is operated by hand or partially
by mechanical power to capture the fish.
* * * * *
Dredge means a gear consisting of a mouth frame attached to a
holding bag constructed of metal rings or mesh.
* * * * *
Hand harvest means harvesting by hand.
Handline means fishing gear that is set and pulled by hand and
consists of one vertical line to which may be attached leader lines
with hooks.
* * * * *
Hook and line means one or more hooks attached to one or more lines
(can include a troll).
Hoop net means a cone-shaped net having throats and flues stretched
over a series of rings or hoops for support.
* * * * *
Lampara net means a surround net with the sections of netting made
and joined to create bagging. It is hauled with purse rings and is
generally much smaller in size than a purse seine net.
Longline means a line that is deployed horizontally and to which
gangions and hooks or pots are attached. Longlines can be stationary,
anchored, or buoyed lines that may be hauled manually, electrically, or
hydraulically.
* * * * *
Pot means trap.
Powerhead means any device with an explosive charge, usually
attached to a spear gun, spear, pole, or stick, that may or may not
fire a projectile upon contact.
* * * * *
Purse seine means a floated and weighted encircling net that is
closed by means of a drawstring threaded through rings attached to the
bottom of the net.
* * * * *
Rod and reel means a hand-held (including rod holder) fishing rod
with a manually or electrically operated reel attached.
* * * * *
Seine means a net with long narrow wings, that is rigged with
floats and weights.
Slurp gun means a tube-shaped suction device that operates somewhat
like a syringe by sucking up the fish.
Snare means a device consisting of a pole to which is attached a
line forming at its end a loop with a running knot that tightens around
the fish when the line is pulled.
Spear means a sharp, pointed, or barbed instrument on a shaft.
Spears can be operated manually or shot from a gun or sling.
* * * * *
Submersible means a manned or unmanned device that functions or
operates primarily underwater and is used to harvest fish, i.e.,
precious corals, with mechanical arms.
* * * * *
Tangle net dredge means dredge gear consisting of weights and
flimsy netting that hangs loosely in order to immediately entangle
fish.
* * * * *
Trammel net means a net consisting of two or more panels of
netting, suspended vertically in the water column by a common float
line and a common weight line. One panel of netting has a larger mesh
size than the other(s) in order to entrap fish in a pocket.
* * * * *
Trap means a portable, enclosed device with one or more gates or
[[Page 4037]]
entrances and one or more lines attached to surface floats. Also called
a pot.
Trawl means a cone or funnel-shaped net that is towed through the
water, and can include a pair trawl that is towed simultaneously by two
boats.
* * * * *
3. In Sec. 600.725, paragraph (v) is added to read as follows:
Sec. 600.725 General prohibitions.
* * * * *
(v) The use of any gear or participation in a fishery not on the
following list of authorized fisheries and gear is prohibited after
July 26, 1999. A fish, whether targeted or not, may be retained only if
it is taken within a listed fishery, is taken with a gear authorized
for that fishery, and is taken in conformance with all other applicable
regulations. Listed gear can only be used in a manner that is
consistent with existing laws or regulations. The list of fisheries and
allowable gear does not, in any way, alter or supersede any definitions
or regulations contained elsewhere in this chapter. A person or vessel
is prohibited from engaging in fishing or employing fishing gear when
such fishing or gear is prohibited or restricted by regulation under an
FMP or under other applicable law. However, after July 26, 1999, an
individual fisherman may notify the appropriate Council, or the
Assistant Administrator in the case of Atlantic highly migratory
species, of the intent to use a gear or participate in a fishery not
already on this list. Ninety days after such notification, the
individual may use the gear or participate in that fishery unless
regulatory action is taken to prohibit the use of the gear or
participate in the fishery (e.g., through emergency or interim
regulations). The list of authorized fisheries and gear is as follows:
------------------------------------------------------------------------
Fishery Allowable gear types
------------------------------------------------------------------------
New England Fishery Management Council (NEFMC)
------------------------------------------------------------------------
Atlantic Sea Scallops Fishery (FMP):
A. Dredge fishery...................... A. Dredge.
B. Trawl fishery....................... B. Trawl.
C. Hand harvest fishery................ C. Hand harvest.
D. Recreational fishery................ D. Hand harvest.
Atlantic Salmon Fishery (FMP).............. No harvest/possession in
the EEZ.
Striped Bass Fishery (Non-FMP)............. No harvest/possession in
the EEZ.
Northeast (NE) Multispecies Fishery (FMP):
A. NE Multispecies Sink Gillnet........ A. Gillnet.
B. North Atlantic bottom trawl......... B. Trawl.
C. Groundfish hook and line............ C. Longline, handline, rod
and reel.
D. Mixed species trap/pot.............. D. Trap/pot.
E. Dredge fishery...................... E. Dredge.
F. Seine fishery....................... F. Seine.
G. Recreational fishery................ G. Rod and reel, handline,
spear.
American Lobster Fishery (FMP):
A. Lobster pot/trap.................... A. Pot, trap.
B. North Atlantic bottom trawl......... B. Trawl.
C. Dredge fishery...................... C. Dredge.
D. Hand harvest fishery................ D. Hand harvest.
E. Recreational fishery................ E. Pot, trap, hand harvest.
Atlantic Herring Fishery (Preliminary FMP):
A. Coastal herring trawl............... A. Trawl fishery.
B. Atlantic herring purse seine fishery B. Purse seine.
C. Coastal/inshore gillnet fishery..... C. Gillnet.
D. Recreational fishery................ D. Hook and line, gillnet.
Dogfish Fishery (Non-FMP):
A. Gillnet fishery..................... A. Gillnet.
B. Trawl fishery....................... B. Trawl.
C. Recreational fishery................ C. Hook and line, rod and
reel.
Atlantic Bluefish (FMP managed by Mid-
Atlantic Fishery Management Council
(MAFMC)):
A. Pelagic longline/hook and line...... A. Longline, handline.
B. Seine fishery....................... B. Purse seine, seine.
C. Mixed species pot/trap fishery...... C. Pot, trap.
D. Bluefish, croaker, flounder trawl D. Trawl.
fishery.
E. Pelagic drift gillnet fishery....... E. Gillnet.
F. Dredge fishery...................... F. Dredge.
G. Recreational fishery................ G. Rod and reel, handline,
trap, pot.
Atlantic Mackerel, Squid and Butterfish
Fishery (FMP managed by the MAFMC):
A. Mackerel, squid, butterfish trawl A. Trawl.
fishery.
B. Pelagic drift gillnet fishery....... B. Gillnet.
C. Pelagic longline/hook and line C. Longline, handline.
fishery.
D. Purse seine fishery................. D. Purse seine
E. Mixed species pot/trap fishery...... E. Pot, trap.
F. Dredge fishery...................... F. Dredge.
G. Recreational fishery................ G. Rod and reel, handline,
pot.
Surf Clam and Ocean Quahog Fishery (FMP Dredge.
managed by the MAFMC).
Atlantic Menhaden Purse Seine Fishery (Non- Purse seine.
FMP).
Atlantic Halibut Fishery (Non-FMP)......... Longline, handline,
gillnet, trawl.
Weakfish Fishery (Non-FMP):
A. Commercial fishery.................. A. Trawl, gillnet, hook and
line.
B. Recreational fishery................ B. Hook and line.
[[Page 4038]]
Atlantic Mussel/Sea Urchin Fishery (Non-
FMP):
A. Dredge fishery...................... A. Dredge.
B. Hand harvest fishery................ B. Hand harvest.
Atlantic Skate Fishery:
A. Trawl fishery....................... A. Trawl.
B. Gillnet fishery..................... B. Gillnet.
C. Hook-and-line fishery............... C. Longline and handline.
Crab Fishery (Non-FMP)..................... Pot.
Northern Shrimp Fishery:
A. Shrimp trawl fishery................ A. Trawl.
B. Shrimp pot fishery.................. B. Pot.
Monkfish Fishery (Non-FMP):
A. Trawl fishery....................... A. Trawl.
B. Gillnet fishery..................... B. Gillnet.
C. Demersal longline fishery........... C. Longline.
D. Dredge fishery...................... D. Dredge.
E. Trap/pot............................ E. Trap/pot.
Summer Flounder, Scup, Black Sea Bass
Fishery (FMP managed by MAFMC):
A. Bluefish, croaker, flounder trawl A. Trawl.
fishery.
B. Pelagic longline/hook and line B. Longline, handline.
fishery..
C. Mixed species pot/trap fishery...... C. Pot, trap.
D. Pelagic drift gillnet fishery....... D. Gillnet.
E. Recreational fishery............... E. Rod and reel, handline,
pot, trap.
Hagfish Fishery (Non-FMP).................. Trap/pot.
------------------------------------------------------------------------
Mid-Atlantic Fishery Management Council
------------------------------------------------------------------------
Summer Flounder, Scup, Black Sea Bass FMP:
A. Bluefish, croaker, flounder trawl A. Trawl.
fishery.
B. Pelagic longline/hook and line B. Longline, handline.
fishery.
C. Mixed species pot/trap fishery...... C. Pot, trap.
D. Pelagic drift gillnet fishery....... D. Gillnet.
E. Recreational fishery................ E. Rod and reel, handline,
pot, trap.
Atlantic Bluefish FMP:
A. Bluefish, Croaker, Flounder trawl A. Trawl.
fishery.
B. Pelagic longline/hook and line B. Longline, handline.
fishery.
C. Mixed species pot/trap fishery...... C. Pot, trap.
D. Pelagic drift gillnet fishery....... D. Gillnet.
E. Seine fishery....................... E. Purse seine, seine.
F. Dredge fishery...................... F. Dredge.
G. Recreational fishery................ G. Rod and reel, handline,
trap, pot.
Atlantic Mackerel, Squid, and Butterfish
Fishery (FMP):
A. Mackerel, Squid, Butterfish trawl A. Trawl.
fishery.
B. Pelagic drift gillnet fishery....... B. Gillnet.
C. Pelagic longline/hook and line C. Longline, handline.
fishery.
D. Purse seine fishery................. D. Purse seine.
E. Mixed species pot/trap fishery...... E. Pot, trap.
F. Dredge fishery...................... F. Dredge.
G. Bandit gear fishery................. G. Bandit gear.
H. Recreational fishery................ H. Rod and reel, handline,
pot.
Surf Clam/Ocean Quahog Fishery (FMP):
A. Dredge fishery...................... A. Dredge.
B. Recreational fishery................ B. Hand harvest.
Atlantic Sea Scallop Fishery (FMP managed
by NEFMC):
A. Dredge fishery...................... A. Dredge.
B. Trawl fishery....................... B. Trawl.
C. Hand harvest fishery................ C. Hand harvest.
Atlantic Menhaden Purse Seine Fishery (Non- Purse seine.
FMP).
Striped bass Fishery (Non-FMP)............. No harvest/possession in
the EEZ.
Northern Shrimp Trawl Fishery (Non-FMP).... Trawl.
American Lobster Fishery (FMP managed by
NEFMC):
A. Pot/trap fishery.................... A. Pot/trap.
B. Hand harvest fishery................ B. Hand harvest.
Weakfish Fishery (Non-FMP):
A. Commercial fishery.................. A. Trawl, gillnet, hook and
line.
B. Recreational fishery................ B. Hook and line.
Mixed Species Trawl Fishery (Non-FMP)...... Trawl.
Whelk Fishery (Non-FMP):
A. Trawl fishery....................... A. Trawl.
B. Pot/trap fishery.................... B. Pot/trap.
Monkfish Fishery (Non-FMP):
[[Page 4039]]
A. Trawl fishery....................... A. Trawl.
B. Longline fishery.................... B. Longline.
Tilefish Fishery (Non-FMP):
A. Groundfish hook-and-line fishery.... A. Longline, handline.
B. Recreational fishery................ B. Rod and reel.
Dogfish Fishery (Non-FMP):
A. Gillnet fishery..................... A. Gillnet.
B. Trawl fishery....................... B. Trawl.
C. Recreational fishery................ C. Hook and line.
Coastal Gillnet Fishery (Non-FMP).......... Gillnet.
Recreational Fishery (Non-FMP)............. Rod and reel, handline.
------------------------------------------------------------------------
South Atlantic Fishery Management Council
------------------------------------------------------------------------
Golden Crab Fishery (FMP).................. Trap.
Atlantic Red Drum Fishery (FMP)............ No harvest/possession in
EEZ.
Coral and Coral Reef Fishery (FMP):
A. Octocoral commercial fishery........ Hand harvest only.
B. Live rock aquaculture fishery....... Hand harvest only.
C. Octocoral recreational fishery...... Hand harvest only.
South Atlantic Shrimp Fishery (FMP)........ Trawl.
South Atlantic Snapper-Grouper Fishery
(FMP):
A. Commercial fishery.................. A. Longline, rod and reel,
bandit gear, handline,
spear, powerhead.
B. Black sea bass trap/pot fishery..... B. Pot, trap.
C. Wreckfish fishery................... C. Rod and reel, bandit
gear, handline.
D. Recreational fishery................ D. Handline, rod and reel,
bandit gear, spear,
powerhead.
South Atlantic Spiny Lobster FMP:
A. Commercial fishery.................. A. Trap, pot, dip net,
bully net, snare.
B. Recreational fishery................ B. Trap, pot, dip net,
bully net, snare.
South Atlantic Coastal Migratory Pelagics
FMP:
A. Commercial Spanish mackerel fishery. A. Handline, rod and reel,
bandit gear, gillnet, cast
net.
B. Commercial King mackerel fishery.... B. Handline, rod and reel,
bandit gear.
C. Other commercial coastal migratory C. Longline, handline, rod
pelagics fishery. and reel, bandit gear.
D. Recreational fishery................ D. Bandit gear, rod and
reel, handline.
Atlantic Mackerel, Squid, and Butterfish Trawl.
Trawl Fishery (Non-FMP).
Weakfish Fishery (Non-FMP):
A. Commercial fishery.................. A. Trawl, gillnet, hook and
line.
B. Recreational fishery................ B. Hook and line.
Whelk Trawl Fishery (non-FMP).............. Trawl.
Marine Life Aquarium Fishery (Non-FMP)..... Dip net, slurp gun, barrier
net, allowable chemical.
Calico Scallops Trawl Fishery (Non-FMP).... Trawl.
Bluefish, Croaker, Flounder Trawl Fishery Trawl.
(Non-FMP).
Recreational Fishery (Non-FMP)............. Handline, bandit gear, rod
and reel.
Sargassum Fishery (Non-FMP)................ Trawl.
------------------------------------------------------------------------
Gulf of Mexico Fishery Management Council
------------------------------------------------------------------------
Gulf of Mexico Red Drum FMP................ No harvest/possession in
EEZ.
Coral Reef FMP:
A. Commercial fishery.................. A. Hand harvest only.
B. Recreational fishery................ B. Hand harvest only.
Gulf of Mexico Reef Fish FMP:
A. Snapper-Grouper reef fish longline/ A. Longline, handline,
hook and line fishery. bandit gear, rod and reel,
buoy gear.
B. Pot/trap reef fish fishery.......... B. Pot, trap.
C. Other commercial fishery............ C. Spear, powerhead, cast
net, trawl.
D. Recreational fishery................ D. Spear, powerhead, bandit
gear, handline, rod reel,
cast net.
Gulf of Mexico Shrimp FMP:
A. Gulf of Mexico commercial fishery... A. Trawl butterfly net,
skimmer, castnet.
B. Recreational fishery................ B. Trawl.
[[Page 4040]]
Gulf of Mexico Coastal Migratory Pelagics
FMP:
A. Large pelagics longline fishery..... A. Longline.
B. King/Spanish mackerel gillnet B. Gillnet.
fishery.
C. Pelagic hook and line fishery....... C. Bandit gear, handline,
rod and reel.
D. Pelagic species purse seine fishery. D. Purse seine.
E. Recreational fishery................ E. Bandit gear, handline,
rod and reel, spear.
Gulf of Mexico Spiny Lobster FMP:
A. Spiny lobster pot/trap fishery...... A. Trap, pot.
B. Dip net fishery..................... B. Dip net, bully net, hoop
net.
C. Recreational fishery................ C. Dip net, bully net, pot,
trap, snare.
Stone Crab FMP:
A. Trap/pot crab fishery............... A. Trap, pot.
B. Recreational fishery................ B. Trap, pot.
Mullet Fishery (Non-FMP):
A. Trawl fishery....................... A. Trawl.
B. Gillnet fishery..................... B. Gillnet.
C. Recreational fishery................ C. Bandit gear, handline,
rod and reel.
Inshore Coastal Gillnet Fishery (Non-FMP).. Gillnet.
Golden Crab Fishery (Non-FMP).............. Trap.
Octopus Fishery (Non-FMP).................. Trap.
Marine Life Aquarium Fishery (Non-FMP)..... Dip net, slurp gun, barrier
net, allowable chemical.
Coastal Herring Trawl Fishery (Non-FMP).... Trawl.
Butterfish Trawl Fishery (Non-FMP)......... Trawl.
Gulf of Mexico Groundfish (Non-FMP):
A. Commercial fishery.................. A. Trawl, purse seine,
gillnet.
B. Recreational fishery................ B. Hook and line.
Gulf of Mexico Menhaden Purse Fishery (Non- Purse seine.
FMP).
Sardine Purse Seine Fishery (Non-FMP)...... Purse seine.
Oyster Fishery (Non-FMP)................... Dredge.
Non-Groundfish finfish (Non-FMP)........... Trawl, gillnet, longline,
handline, rod and reel,
bandit gear.
Recreational fishery (Non-FMP)............. Bandit gear, handline, rod
and reel, spear, bully
net, gillnet, dip net,
longline, powerhead,
seine, slurp gun, trap,
trawl, harpoon, castnet,
hoop net.
------------------------------------------------------------------------
Caribbean Fishery Management Council
------------------------------------------------------------------------
Caribbean Spiny Lobster FMP:
A. Trap/pot fishery.................... A. Trap/pot.
B. Dip net fishery..................... B. Dip net.
C. Entangling net fishery.............. C. Gillnet, trammel net.
D. Recreational fishery................ D. Dip net, trap, pot,
gillnet, trammel net.
E. Hand harvest fishery................ E. Hand harvest.
Caribbean Shallow Water Reef Fish FMP:
A. Longline/hook and line fishery...... A. Longline, hook and line.
B. Trap/pot fishery.................... B. Trap, pot.
C. Entangling net fishery.............. C. Gillnet, trammel net.
D. Recreational fishery................ D. Dip net, handline, rod
and reel, slurp gun,
spear.
Coral and Reef Resources FMP:
A. Commercial fishery.................. A. Dip net, slurp gun.
B. Recreational fishery................ B. Dip net, slurp gun.
Queen Conch FMP:
A. Commercial fishery.................. A. Hand harvest only.
B. Recreational fishery................ B. Hand harvest only.
Caribbean Pelagics (Non-FMP):
A. Pelagics drift gillnet.............. A. Gillnet fishery.
B. Pelagics longline/hook and line B. Longline/hook and line.
fishery.
C. Recreational fishery................ C. Spear, handline,
longline, rod and reel.
------------------------------------------------------------------------
Pacific Fishery Management Council
------------------------------------------------------------------------
Washington, Oregon, and California Salmon
FMP:
A. Salmon set gillnet fishery.......... A. Gillnet.
B. Salmon hook and line fishery........ B. Hook and line.
[[Page 4041]]
C. Trawl fishery....................... C. Trawl.
D. Recreational fishery................ D. Rod and reel.
West Coast Groundfish FMP:
A. Pacific groundfish trawl fishery.... A. Trawl.
B. Set gillnet fishery................. B. Gillnet.
C. Groundfish longline/setline fishery. C. Longline.
D. Groundfish handline/hook and line D. Handline, hook and line.
fishery.
E. Groundfish pot/trap fishery......... E. Pot, trap.
F. Recreational fishery................ F. Rod and reel, handline,
spear, hook and line.
Northern Anchovy Fishery (FMP)............. Purse seine, lampara net.
Angel Shark, White Croaker, California Gillnet.
Halibut, White Sea Bass, Pacific Mackerel
Large-Mesh Set Net Fishery (Non-FMP).
Thresher Shark/ Swordfish Drift Gillnet Gillnet.
Fishery (Non-FMP).
Pacific Shrimp/Prawn (Non-FMP):
A. Pot/trap fishery.................... A. Pot/trap.
B. Trawl fishery....................... B. Trawl.
Lobster, Rock Crab Pot/Trap Fishery (Non- Pot, trap.
FMP).
Pacific Halibut (Non-FMP):
A. Longline/setline fishery............ A. Longline/setline.
B. Hook-and-line fishery............... B. Hook-and-line.
California Halibut Trawl and Trammel Net Trawl and trammel net.
Fishery.
Shark/Bonito Longline/Setline Fishery (Non- Longline.
FMP).
Dungeness Crab Pot/Trap Fishery (Non-FMP).. Pot, trap.
Hagfish Trap/Pot Fishery (Non-FMP)......... Trap, pot.
Pacific Albacore, Other Tuna Hook and Line Hook and line.
Fishery (Non-FMP).
Pacific Swordfish Harpoon Fishery (Non-FMP) Harpoon.
Pacific Scallop Dredge Fishery (Non-FMP)... Dredge.
Pacific Yellowfin, Skipjack Tuna, Purse Purse seine.
Seine Fishery (Non-FMP).
Market Squid Fishery (Non-FMP)............. Purse seine; dip net.
Pacific Sardine, Pacific................... Purse seine.
Mackerel, Pacific Saury, Pacific Bonito,
Jack mackerel, Purse Seine Fishery (Non-
FMP):
Finfish and Shellfish Live Trap, Hook Trap, handline, hook and
and line/Handline Fishery (Non-FMP). line.
Recreational Fishery (Non-FMP)............. Spear, trap, handline, pot,
hook and line, rod and
reel.
------------------------------------------------------------------------
North Pacific Fishery Management Council
------------------------------------------------------------------------
Alaska Scallop Fishery (FMP)............... Dredge, diving gear.
Bering Sea (BS) and Aleutian Islands (AI)
King and Tanner Crab Fishery FMP:
Pot fishery fishery.................... Pot.
BS and AI King and Tanner Crab Fishery (Non-
FMP):
Recreational fishery................... Pot.
BS and AI Groundfish Fishery FMP:
A. Groundfish trawl fishery............ A. Trawl.
B. Bottomfish hook and line, handline B. Hook and line, handline.
fishery.
C. Longline fishery.................... C. Longline.
D. BS and AI pot/trap fishery.......... D. Pot, trap.
BS and AI Groundfish Fishery (Non-FMP):
Recreational fishery................... Handline, rod and reel,
hook and line, pot, trap.
Gulf of Alaska (GOA) Groundfish Fishery
(FMP):
A. Groundfish trawl fishery............ A. Trawl.
B. Bottomfish hook-and-line and B. Hook and line, handline.
handline.
C. Longline fishery.................... C. Longline.
D. GOA pot/trap fishery................ D. Pot/trap.
E. Recreational fishery................ E. Handline, rod and reel,
hook and line, pot, trap.
Pacific Halibut (Non-FMP):
Hook and line, jig and troll fishery... Hook and line, and jig.
Alaska High Seas Salmon FMP:
Hook and line fishery.................. Hook and line.
Alaska Salmon (Non-FMP).
A. Alaska salmon hook and line fishery. A. Hook and line.
B. Alaska salmon gillnet fishery....... B. Gillnet.
C. Alaska salmon purse seine fishery... C. Purse seine.
D. Recreational fishery................ D. Handline, rod and reel,
hook and line.
Finfish Purse Seine Fishery (Non-FMP)...... Purse seine.
Octopus/Squid Longline Fishery (Non-FMP)... Longline.
Finfish Handline/Hook and Line Fishery (Non- Handline, hook and line.
FMP).
Recreational Fishery (Non-FMP)............. Handline, rod and reel,
hook line.
------------------------------------------------------------------------
[[Page 4042]]
Western Pacific Fishery Management Council
------------------------------------------------------------------------
Western Pacific Crustacean FMP Lobster Trap.
Fishery.
Western Pacific Crustacean (Non-FMP):
A. Commercial fishery.................. A. Gillnet, hand harvest,
hoop net, spear, snare,
trap, trawl.
B. Recreational fishery................ B. Gillnet, hand harvest,
hoop net, spear, snare,
trap.
C. Charter fishery..................... C. Hand harvest, spear.
Western Pacific Precious Corals FMP:
A. Tangle net dredge fishery........... A. Tangle net dredge.
B. Submersible fishery................. B. Submersibles.
C. Coral Dive/Hand Collection Fishery.. C. Hand harvest only.
D. Recreational fishery................ D. Hand harvest only.
Western Pacific Precious Corals (Non-FMP).. Hand harvest, submersible,
tangle net dredge.
Western Pacific Bottomfish/Seamount
Groundfish FMP:
A. Bottomfish hook and line fishery.... A. Bandit gear, buoy gear,
handline, hook and line,
rod and reel.
B. Seamount groundfish fishery......... B. Longline, trawl.
C. Bottom longline fishery............. C. Longline.
D. Trap fishery........................ D. Trap.
E. Spear fishery....................... E. Spear, powerhead.
Western Pacific Bottomfish/Seamount
Groundfish (Non-FMP):
A. Commercial fishery.................. A. Bandit gear, buoy gear,
gillnet, handline, hook-
and-line, longline, rod
and reel, spear, trap.
B. Recreational fishery................ B. Bandit gear, buoy gear,
Gillnet, handline, hook-
and-line, longline, rod
and reel, spear, trap.
C. Charter fishery..................... C. Bandit gear, buoy gear,
handline, hook-and-line,
rod and reel, spear.
Western Pacific Pelagics FMP:
A. Longline fishery.................... A. Longline.
B. Hook and line fishery............... B. Bandit gear, buoy gear,
handline, hook and line,
rod and reel.
C. Purse seine fishery................. C. Lampara, purse seine.
D. Spear fishery....................... D. Spear, powerhead.
Western Pacific Pelagics (Non-FMP):
A. Recreational fishery................ A. Bandit gear, buoy gear,
dip net, handline, hook
and line, hoop net,
powerhead, rod and reel,
spear.
B. Commercial fishery.................. B. Bandit gear, buoy gear,
dip net, handline, hook
and line, hoop net,
powerhead, rod and reel,
spear.
C. Charter fishery..................... C. Bandit gear, buoy gear,
dip net, handline, hook
and line, hoop net,
powerhead, rod and reel,
spear.
Western Pacific Coastal Pelagics (Non FMP). Bandit gear, buoy gear,
dip, net, gillnet,
handline, hook and line,
hoop net, lampara net,
purse seine, rod and reel,
spear.
Western Pacific Squid/Octopus (Non FMP).... Bandit gear, hand harvest,
hook and line, rod and
reel, spear, trap.
Western Pacific Shallow Reef (Non FMP)..... Allowable chemical, barrier
net, dip net, gillnet,
hand harvest, seine, slurp
gun, trap.
------------------------------------------------------------------------
Secretary of Commerce
------------------------------------------------------------------------
Atlantic Swordfish FMP:
A. Hook and line fishery............... A. Rod and reel, handline,
bandit gear.
B. Longline fishery.................... B. Longline.
C. Drift gillnet fishery............... C. Gillnet.
D. Harpoon fishery..................... D. Harpoon.
Atlantic Sharks FMP:
[[Page 4043]]
A. Hook and line fishery............... A. Rod and reel, handline,
bandit gear.
B. Longline fishery.................... B. Longline.
C. Drift gillnet fishery............... C. Gillnet.
Atlantic Billfish FMP (Recreational only):
Hook and line fishery.................. Rod and reel.
Atlantic Tunas (Non-FMP):
A. Hook and line fishery............... A. Rod and reel, handline,
bandit gear.
B. Purse seine fishery................. B. Purse seine.
C. Longline fishery.................... C. Longline.
D. Harpoon fishery..................... D. Harpoon.
E. Recreational fishery................ E. Rod and reel, handline.
------------------------------------------------------------------------
4. In subpart H, Sec. 600.747 is added to read as follows:
Sec. 600.747 Guidelines and procedures for determining new fisheries
and gear.
(a) General. Section 305(a) of the Magnuson-Stevens Act requires
the Secretary to prepare a list of all fisheries under the authority of
each Council, or the Director in the case of Atlantic highly migratory
species, and all gear used in such fisheries. This section contains
guidelines in paragraph (b) for determining when fishing gear or a
fishery is sufficiently different from those listed in Sec. 600.725(v)
as to require notification of a Council or the Director in order to use
the gear or participate in the unlisted fishery. This section also
contains procedures in paragraph (c) for notification of a Council or
the Director of potentially new fisheries or gear, and for amending the
list of fisheries and gear.
(b) Guidelines. The following guidance establishes the basis for
determining when fishing gear or a fishery is sufficiently different
from those listed to require notification of the appropriate Council or
the Director.
(1) The initial step in the determination of whether a fishing gear
or fishery is sufficiently different to require notification is to
compare the gear or fishery in question to the list of authorized
fisheries and gear in Sec. 600.725(v) and to the existing gear
definitions in Sec. 600.10.
(2) If the gear in question falls within the bounds of a definition
in Sec. 600.10 for an allowable gear type within that fishery, as
listed under Sec. 600.725(v), then the gear is not considered
different, is considered allowable gear, and does not require
notification of the Council or Secretary 90 days before it can be used
in that fishery.
(3) If, for any reason, the gear is not consistent with a gear
definition for a listed fishery as described in paragraph (b)(2) of
this section, the gear is considered different and requires Council or
Secretarial notification as described in paragraph (c) of this section
90 days before it can be used in that fishery.
(4) If a fishery falls within the bounds of the list of authorized
fisheries and gear in Sec. 600.725(v) under the Council's or
Secretary's authority, then the fishery is not considered different, is
considered an allowable fishery and does not require notification of
the Council or Director before that fishery can occur.
(5) If a fishery is not already listed in the list of authorized
fisheries and gear in Sec. 600.725(v), then the fishery is considered
different and requires notification as described in paragraph (c) of
this section 90 days before it can occur.
(c) Procedures. If a gear or fishery does not appear on the list in
Sec. 600.725(v), or if the gear is different from that defined in
Sec. 600.10, the process for notification, and consideration by a
Council or the Director, is as follows:
(1) Notification. After July 26, 1999, no person or vessel may
employ fishing gear or engage in a fishery not included on the list of
approved gear types in Sec. 600.725(v) without notifying the
appropriate Council or the Director at least 90 days before the
intended use of that gear.
(2) Notification procedures. (i) A signed return receipt for the
notice serves as adequate evidence of the date that the notification
was received by the appropriate Council or the Director, in the case of
Atlantic highly migratory species, and establishes the beginning of the
90-day notification period, unless required information in the
notification is incomplete.
(ii) The notification must include:
(A) Name, address, and telephone number of the person submitting
the notification.
(B) Description of the gear.
(C) The fishery or fisheries in which the gear is or will be used.
(D) A diagram and/or photograph of the gear, as well as any
specifications and dimensions necessary to define the gear.
(E) The season(s) in which the gear will be fished.
(F) The area(s) in which the gear will be fished.
(G) The anticipated bycatch species associated with the gear,
including protected species, such as marine mammals, sea turtles, sea
birds, or species listed as endangered or threatened under the ESA.
(H) How the gear will be deployed and fished, including the
portions of the marine environment where the gear will be deployed
(surface, midwater, and bottom).
(iii) Failure to submit complete and accurate information will
result in a delay in beginning the 90-day notification period. The 90-
day notification period will not begin until the information received
is determined to be accurate and complete.
(3) Action upon receipt of notification. (i) Species other than
Atlantic Highly Migratory Species. (A) Upon signing a return receipt of
the notification by certified mail regarding an unlisted fishery or
gear, a Council must immediately begin consideration of the
notification and send a copy of the notification to the appropriate
Regional Administrator.
(B) If the Council finds that the use of an unlisted gear or
participation in a new fishery would not compromise the effectiveness
of conservation and management efforts, it shall:
(1) Recommend to the RA that the list be amended;
(2) Provide rationale and supporting analysis, as necessary, for
proper consideration of the proposed amendment; and
(3) Provide a draft proposed rule for notifying the public of the
proposed addition, with a request for comment.
(C) If the Council finds that the proposed gear or fishery will be
detrimental to conservation and management efforts, it will recommend
to the RA that the authorized list of
[[Page 4044]]
fisheries and gear not be amended, that a proposed rule not be
published, give reasons for its recommendation of a disapproval, and
may request NMFS to publish emergency or interim regulations, and begin
preparation of an FMP or amendment to an FMP, if appropriate.
(D) After considering information in the notification and Council's
recommendation, NMFS will decide whether to publish a proposed rule. If
information on the new gear or fishery being considered indicates it is
likely that it will compromise conservation and management efforts
under the Magnuson-Stevens Act, and no additional new information is
likely to be gained from a public comment period, then a proposed rule
will not be published and NMFS will notify the appropriate Council. In
such an instance, NMFS will publish emergency or interim regulations to
prohibit or restrict use of the gear or participation in the fishery.
If NMFS determines that the proposed amendment is not likely to
compromise conservation and management efforts under the Magnuson-
Stevens Act, NMFS will publish a proposed rule in the Federal Register
with a request for public comment.
(ii) Atlantic Highly Migratory Species. (A) Upon signing a return
receipt of the notification by certified mail regarding an unlisted
fishery or gear for Atlantic highly migratory species (HMS), NMFS will
immediately begin consideration of the notification.
(B) Based on information in the notification and submitted by the
Council, NMFS will make a determination whether the use of an unlisted
gear or participation in an unlisted HMS fishery will compromise the
effectiveness of conservation and management efforts under the
Magnuson-Stevens Act. If it is determined that the proposed amendment
will not compromise conservation and management efforts, NMFS will
publish a proposed rule.
(C) If NMFS finds that the proposed gear or fishery will be
detrimental to conservation and management efforts in this initial
stage of review, it will not publish a proposed rule and notify the
applicant of the negative determination with the reasons therefor.
(4) Final determination and publication of a final rule. Following
public comment, NMFS will approve or disapprove the amendment to the
list of gear and fisheries.
(i) If approved, NMFS will publish a final rule in the Federal
Register and notify the applicant and the Council, if appropriate, of
the final approval.
(ii) If disapproved, NMFS will withdraw the proposed rule, notify
the applicant and the Council, if appropriate, of the disapproval;
publish emergency or interim regulations, if necessary, to prohibit or
restrict the use of gear or the participation in a fishery; and either
notify the Council of the need to amend an FMP or prepare an amendment
to an FMP in the case of Atlantic highly migratory species.
[FR Doc. 99-1766 Filed 1-26-99; 8:45 am]
BILLING CODE 3510-22-P
