[Federal Register Volume 64, Number 162 (Monday, August 23, 1999)]
[Proposed Rules]
[Pages 45938-45946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21591]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 990713190-9190-01; I.D. 041599B]
RIN 0648-AH63
Fisheries of the Northeastern United States; Amendment 1 to the
Fishery Management Plan for the Atlantic Bluefish Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to implement Amendment 1 (Amendment
1) to the Fishery Management Plan for the Atlantic Bluefish Fishery
(FMP). This proposed rule would: Implement permit and reporting
requirements for commercial bluefish vessels, dealers, and party/
charter boats; implement permit requirements for bluefish vessel
operators; define a Bluefish Monitoring Committee (Committee) that
would annually recommend the Mid-Atlantic Fishery Management Council
(Council) and the Atlantic States Marine Fisheries Commission
(Commission) the total allowable level of landings (TAL) and other
restrictions necessary to achieve the target fishing mortality rates
(F) specified in the FMP; establish a framework adjustment process;
establish a 9-year stock rebuilding schedule; establish a commercial
quota with allocations to states; and establish a recreational harvest
limit. Amendment 1 also addresses the new requirements of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act),
as amended by the Sustainable Fisheries Act (SFA). Two primary examples
of these requirements are establishing a rebuilding plan to rebuild the
bluefish stock from an overfished condition and describing and
identifying essential fish habitat (EFH) for bluefish. The purpose of
this rule is to control fishing mortality of bluefish and rebuild the
stock.
DATES: Comments must be received on or before October 7, 1999.
ADDRESSES: Comments on this proposed rule should be sent to Patricia A.
Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1
Blackburn Drive, Gloucester, MA 01930. Mark the outside of the
envelope: ``Comments on Bluefish Plan Proposed Regulations.''
Comments on the collection-of-information requirements that would
be established by this proposed rule should be sent to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503 (Attention: NOAA Desk Officer) and to NMFS (See
ADDRESSES).
Copies of Amendment 1, its Regulatory Impact Review (RIR)/Initial
Regulatory Flexibility Analysis (IRFA) and the Final Environmental
Impact Statement (FEIS) are available from Daniel T. Furlong, Executive
Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal
Building, 300 South New Street, Dover, DE 19901-6790.
FOR FURTHER INFORMATION CONTACT: Myles Raizin, Fishery Policy Analyst,
978-281-9104.
SUPPLEMENTARY INFORMATION:
Background
The FMP was adopted by the Council and the Commission in October
1989 and approved by NMFS in March 1990. In 1996, the Council and the
Commission began development of Amendment 1 to address the need to
broaden the suite of management measures that could be used to reduce
bluefish fishing mortality.
The enactment of the SFA in October 1996 further prompted the
Council to take action to end overfishing on the bluefish stocks. The
23rd Northeast Stock Assessment Workshop, held in 1997, concluded that
the Atlantic bluefish stock was at a low level of abundance and was
overexploited. NMFS declared the bluefish stock to be overfished in its
1997 and 1998 Reports to Congress on the Status of Fisheries in the
United States.
NMFS published a notice of availability for Amendment 1 in the
Federal Register on April 30, 1999. The public comment period ended
June 29, 1999. All comments received through June 29, 1999, were
considered in the approval/disapproval decision on Amendment 1.
Amendment 1 was partially approved by NMFS on behalf of the Secretary
of Commerce on July 29, 1999. NMFS disapproved the de minimis provision
related to state allocations of the commercial quota, the description
and analysis of fishing communities, and the portion of the EFH section
assessing the effects of fishing gear on bluefish EFH. Copies of
Amendment 1 are available from the Council upon request (see
ADDRESSES).
Overfishing Definition and Rebuilding Schedule
Amendment 1 revises the definitions of overfishing and overfished
in the FMP to include an F and biomass (B) component, respectively.
Overfishing is defined as occurring when F is greater than the maximum
F threshold, specified as Fmsy = 0.4; and the bluefish stock
will be considered overfished when biomass is less than the minimum
biomass threshold, specified as 1/2Bmsy = 118.5 million
(mil) lb (53,750 mt). The long-term F target would be 90 percent of
Fmsy and the long-term B target would be Bmsy.
The Council plans in Amendment 1 to rebuild the bluefish stock to
Bmsy over a 9-year period. In the first 2 years of
rebuilding, F would remain at the current level, F=0.51, in years 3
through 5 it would be reduced to F=0.41, and in years 6 through 9 it
would be reduced to F=0.31. Once rebuilding is achieved, F will be set
at F=0.36, and continue to be that value as long as the stock is not
overfished.
Annual Adjustment Process and Committee
This rule would define the composition of a Bluefish Monitoring
Committee as staff representatives from the Mid-Atlantic, New England,
and South Atlantic Fishery Management Councils, the NMFS Northeast
Regional Office, the NMFS Northeast Fisheries Science Center, and the
Commission. The Committee would review annually the best available data
and recommend to the Council and the Commission commercial (annual
quota, minimum fish size, and minimum mesh size) and recreational
(possession and size limits, and seasonal closures) measures designed
to assure that the target F for bluefish for that given year is not
exceeded.
EFH for Bluefish
Section 2.2.2.2 of Amendment 1 describes and identifies EFH for
bluefish with large areas of oceanic waters identified as EFH for eggs
and larvae, and major estuaries from Maine through Florida identified
as EFH for juveniles (generally North Atlantic estuaries from June
through October, Mid-Atlantic estuaries from May through October, and
South Atlantic estuaries from March through December). For adults, EFH
in estuaries is similar to that of juveniles on a seasonal basis, and
over a wide area of the continental shelf throughout the
[[Page 45939]]
year. The amendment does not identify any habitat areas of particular
concern for bluefish. While bluefish are pelagic and wide ranging,
there is some linkage between juvenile bluefish and submerged aquatic
vegetation (SAV). Certain estuarine fishing gear effects SAV and
bluefish EFH. The effects of this gear are not analyzed by Amendment 1;
therefore, NMFS has disapproved this portion of the amendment.
Recreational Harvest Limit and Commercial Quotas
This proposed rule would establish a procedure to specify a TAL
divided between the recreational and commercial fisheries. The TAL
would be set annually, based on the F values specified in the
rebuilding schedule, and a target F=0.36, once rebuilding is achieved.
The recreational fishery would have a harvest limit of 83 percent of
the TAL, and the commercial fishery would have a quota of 17 percent of
the TAL. These percentages of the TAL are based on the average catch
composition of the two fisheries from 1981 through 1989. The commercial
quota would be distributed to the states based on their percentage
share of commercial landings during this time period as designated in
Table 48 of Amendment 1 (See also Sec. 648.160(e)(1) of this rule).
Amendment 1 provides a procedure where the commercial TAL could be set
higher than 17 percent, up to 10.5 mil lb (4.8 mil kg) (the average
commercial landings for the period 1991-1996), if the recreational
fishery is not likely to land its annual allocation, based on a
projection of the most recently available recreational landings data,
and provided that the combination of the projected recreational
landings and commercial quota does not exceed the TAL. The Council
provided this procedure to ensure that commercial landings would not be
unduly constrained under low allowable harvest levels and
proportionally low recreational landings.
1999 Allocations for the Commercial Fishery
States participating in the bluefish fishery have already taken
action for 1999 in accordance with the rebuilding schedule of Amendment
1 through the Commission and their own existing administrative programs
for managing quotas in the commercial fishery for bluefish. The TAL for
the bluefish fishery for 1999 is 36.84 mil lb (16.71 mil kg), with 5.93
mil lb (2.69 mil kg) (17 percent) going to the commercial fishery, and
30.91 mil lb (14.02 mil kg) (83 percent) going to the recreational
fishery. There are not enough data for the 1999 recreational fishery at
this time to warrant increasing the allocation to the commercial
fishery above 17 percent (as discussed in the aforementioned procedure
for increasing an annual commercial TAL above 17 percent up to 10.5 mil
lb (4.8 mil kg)). The proposed state-by-state allocation of the
commercial quota for 1999, based on the percentage share, is as
follows:
------------------------------------------------------------------------
State Pounds Kilograms
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Maine......................................... 39,802 18,054
New Hampshire................................. 24,675 11,193
Massachusetts................................. 399,876 181,384
Rhode Island.................................. 405,316 183,851
Connecticut................................... 75,390 34,197
New York...................................... 618,275 280,450
New Jersey.................................... 882,078 400,110
Delaware...................................... 111,817 50,720
Maryland...................................... 178,712 81,064
Virginia...................................... 707,240 320,804
North Carolina................................ 1,908,731 865,800
South Carolina................................ 2,095 950
Georgia....................................... 566 257
Florida....................................... 598,900 271,661
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Totals.................................... 5,953,473 2,700,495
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Framework Adjustment Process
In addition to the annual review and modifications to management
measures associated with the Committee process, under Amendment 1 and
the proposed rule, the Council could add or modify management measures
through a streamlined public review process called a framework
adjustment. As such, management measures that have been identified in
the plan could be implemented or adjusted at any time during the year
following consideration of the measures and associated analyses during
at least two Council meetings. The recommended management measures then
could be implemented through a final rule without first publishing a
proposed rule. The framework process would allow the Council to
consider gear restrictions, minimum and maximum fish size, permitting
restrictions, changes in the recreational possession limit,
recreational and commercial seasons, closed areas to address
overfishing if it is deemed necessary in the future, description and
identification of essential fish habitat (EFH) and fishing gear
management measures that impact EFH, and description and identification
of habitat areas of particular concern.
Permit and Reporting Requirements
This rule proposes to add bluefish permit and reporting
requirements that mirror similar requirements for other Northeast
fisheries. These measures include new permitting requirements for
Federal commercial bluefish vessels, bluefish charter and party boats,
bluefish dealers, and bluefish vessel operators, and new reporting
requirements for bluefish dealers and owners or operators of commercial
bluefish vessels and bluefish charter and party boats. In addition to
logbook reporting, dealers would be required to participate in the
Northeast Interactive Voice Reporting (IVR) system to assure timely
reports for purposes of quota monitoring.
Implementation of a commercial bluefish vessel permitting system
represents a modification of the present system where individuals, and
not vessels, are issued a permit to sell bluefish. Under the current
bluefish regulations, any person selling a bluefish harvested from the
exclusive economic zone is identified as a commercial fisherman and
must have a commercial fishing permit issued by a state or by NMFS that
allows the sale of bluefish (i.e., the individual is licensed). The new
management measure would allow the sale of bluefish harvested in
Federal waters only from vessels issued a Federal permit. The Council
believes that the bulk of the bluefish that enters the market is
harvested by commercial vessels. However, at Council and committee
meetings, it has been noted that certain individuals, such as those who
fished from a vessel they did not own or operate and then sold their
catch, would be affected by the changeover to a vessel permit. The
individuals would be subject to the recreational possession limit and
would no longer be able to sell bluefish.
Management Measure Returned to the Council
Pursuant to section 304(b)(1)(B) of the Magnuson-Stevens Act, NMFS
returned to the Council the de minimus provision contained in Amendment
1 and disapproved the provision on July 29, 1999. NMFS determined that
this measure is inconsistent with national standard 1 of the Magnuson-
Stevens Act, which requires that management measures prevent
overfishing. This provision lacks any clear obligation on the part of
the de minimus state to close its commercial bluefish fishery once its
quota is harvested and could result in overfishing of the bluefish
stock. If de minimus status does not, at the very least, require a
state to impose landing constraints, the provision may encourage owners
of vessels that have not traditionally landed in that state to land
amounts of bluefish much greater than they could land in their home
port states. This could result in the state's de minimus quota being
rapidly exceeded
[[Page 45940]]
and compound the overfishing situation if a de minimus state is not
required to close its fishery when its de minimus quota is harvested.
NMFS described its determination on this measure in a letter that it
sent to the Council. As indicated in section 304(b)(2) of the Magnuson-
Stevens Act, the Council may revise this measure and submit it to the
Secretary of Commerce for reevaluation under section 304(b)(1) of the
Magnuson-Stevens Act.
Classification
NMFS determined on July 29, 1999, that the amendment that this rule
would implement is consistent with the Magnuson-Stevens Act and other
applicable laws, with the exception of the de minimus provision, the
fishing communities section, and the portion of the EFH section dealing
with the effect of fishing gear on bluefish EFH. NMFS, in making that
determination, took into account the data, views, and comments received
on Amendment 1 through June 29, 1999.
The Council prepared an initial regulatory flexibility analysis
(IRFA) that describes the impact this proposed rule, if adopted, would
have on small entities. Reasons why the action is considered, as well
as the objectives and legal basis of the rule are described in the
preamble to this rule and are not repeated here. The analyses of the
impacts on small entities attributable to the preferred and other
alternative management measures found in Amendment 1 are discussed
below. Since the final rule implementing Amendment 1 would not become
effective until the fall of 1999, this summary discusses impacts to
small entities in the year 2000, the projected first full year under
the amendment. An assumption of constant prices is applied throughout
the summary. It is also assumed that the 2000 fishery will be similar
to 1997 in terms of commercial and recreational landings.
Impact of the Commercial Vessel Permit
NMFS recently completed an analysis of NMFS bluefish operator
permit holder files. In the full permit year of 1998, there were 1,126
Federal bluefish permits issued to individuals. The Federal individual
bluefish permit file was merged with the vessel owner database for
Federal permits by permit holder name to identify the number of Federal
bluefish individual permits associated with vessel ownership. It is
estimated that 190 permits held by individuals are associated with
vessel ownership. As such, these individuals would be allowed to
continue to sell bluefish caught from their vessels, as long as they
obtain a bluefish vessel permit. Over 32 percent (305) of the
individuals with no vessel status (936) claimed that 5-percent or more
of their annual income is derived from the sale of bluefish. Therefore,
the Council concluded that the proposed action could result in a
significant economic impact (result in a 5 percent or more revenue
loss) for a substantial (20 percent or more) number of small entities
(participants). It is unclear how many of these individuals would make
the required capital investment necessary to purchase a vessel, which
would allow them to apply for a bluefish vessel permit. NMFS seeks
public comment on this issue.
Also, it is possible that some of these individuals took party and
charter recreational trips with the sole purpose of landing bluefish to
be sold commercially. There is no indication that the implementation of
this measure would lead to any substantive decline in the demand for
party and charter boat trips. Anglers that fish from party and charter
boats fish for multiple species, and only a few anglers would take
recreational trips to target solely bluefish to be sold commercially.
The Council, in Amendment 1, acknowledges that since there have
been no mandatory reporting requirements in the past for this fishery,
it is not possible to determine the number of individuals holding
bluefish permits who actually land and sell bluefish. The individual
permit holders affected by this rule may include individuals who
exceeded the bag limit to stock their freezers or feed the poor in
their communities, for example. In addition, crew members of party
boats have supplemented their wages by selling bluefish under the
individual permit. Since arrangements between owner/operators and their
crew differ individually and by region, it is difficult to ascertain
the number of crew likely to be affected.
The Council assumed that individuals who were not registered as
owners of federally permitted vessels did not own a vessel and would
not qualify for a vessel permit under Amendment 1. However, many of
these individuals probably own vessels that are used for recreational
fishing only. This is especially significant, given that the majority
of the individuals who currently hold individual commercial permits
reside in New Jersey, a state that does not issue its own commercial
permit, but relies on the Federal individual commercial permit. Since
New Jersey does not regulate commercial vessels harvesting bluefish
through permits, owners of recreational boats would need only to obtain
a Federal individual commercial permit to land and retain more than the
bag limit. Therefore, the Council's assumption regarding the percentage
of income claimed and the assumption that those who do not own a
federally permitted vessel do not, indeed, own a vessel, likely
underestimates the number of individuals who would qualify for Federal
commercial vessel permits if this proposed rule is implemented.
Notwithstanding the above discussion, it is likely that some portion of
the number of individual permit holders, although immeasurable, may be
vulnerable to economic impacts as a result of this action. The Council
notes that negative economic impacts on small entities would be
mitigated by potential increases in harvest associated with a rebuilt
bluefish stock.
The Council also considered the status quo alternative of
continuing the issuance of permits to individuals. Although this would
mitigate the economic impacts of the proposed vessel permitting scheme,
the Council notes that under individual permitting, the monitoring of
the quota system could potentially be undermined, because it may be
difficult to contact individuals with timely notifications or obtain
information required for quota reports. Implementation and enforcement
of commercial closures and commercial minimum fish sizes that are
essential to managing the fishery would be compromised by the continued
permitting of individuals. Furthermore, harvesting capacity or fishing
power could not be evaluated under a regime of individual permits.
Impacts of Quota Allocation
The Council considered, but rejected, several time periods other
than 1981-1989, upon which to base allocation of the total annual quota
between the commercial and recreational sectors, and state-by-state
allocations of the commercial quota. Other time periods considered were
1981-1993 and 1985-1989.
The Council chose the time period 1981-1989 for the preferred
alternative because it reflects the composition of the overall fishery
in a period of relatively high stock abundance and stability.
Furthermore, the Council believed that basing the allocation on
proportional catch after 1989 would be biased, since restrictions of 10
fish per individual angler were introduced by the FMP in 1990, while no
restrictions were placed on the commercial fishery, e.g., there are no
trip limits, minimum fish size, or minimum mesh size.
[[Page 45941]]
In 1997, commercial landings accounted for 39 percent of total
landings. The commercial allocation (17 percent) under the preferred
alternative would represent a substantial reduction relative to the
1997 landings. The Council, recognizing this disparity, decided to
allow the commercial quota to be increased up to 10.5 mil lb (4.76 mil
kg), the average commercial landings for the period 1990-1997, under
the following condition--if 17 percent of the TAL (the commercial
sector) for a given year is initially calculated to be less than 10.5
mil lb (4.76 mil kg), then the quota could be increased from the level
associated with 17 percent of the TAL up to 10.5 mil lb (4.76 mil kg).
The overall quota for 2000, per the preferred rebuilding schedule,
would be 43.08 mil lb (19.54 mil kg), resulting in allocations of 7.32
mil lb (3.32 mil kg) for the commercial fishery and 35.80 mil lb (16.23
mil kg) for the recreational fishery. Using 1997 data (9.305 mil lb
(4.21 mil kg)) for comparison, commercial vessels in the 2000 fishery
could expect to experience increased revenues, at least in the short
term, since it is assumed that the commercial fishery would be able to
harvest 10.5 mil lb (4.76 mil kg). This is based on the underlying
assumption that the recreational fishery would not be projected to take
more than 32.62 mil lb (14.80 mil kg), given that landings for the
recreational fishery have been declining since 1991 and were only 14.9
mil lb (6.76 mil kg) in 1997.
In the absence of an unpredicted surge in recreational landings in
1999, 10.5 mil lb (4.76 mil kg) would be allocated to the commercial
fishery (7.32 mil lb (3.32 mil kg) specified, plus 3.18 mil lb (1.44
mil kg) from the projected surplus recreational allocation). It should
be noted that in the event recreational landings are projected to be
more than 35.80 mil lb (16.23 mil kg), the 2000 commercial quota would
be 7.32 mil lb (3.32 mil kg), and commercial bluefish fishermen would
face economic impacts associated with a 21-percent reduction of
commercial landings from 9.3 mil lb. (4.21 mil kg) in 1997.
Using the 1981-93 and 1985-89 periods for analyses would yield the
same result as above, if the assumption that the commercial sector
would be able to harvest 10.5 mil lb (4.76 mil kg) remains valid. The
1981-93 period would result in a 19/81 percent commercial/recreational
split, while the 1985-89 period would result in an 18/82 percent split.
Impacts to individual state quotas from any of the three
alternative quota allocations would also be positive, assuming that the
commercial allocation for the 2000 fishery is specified at 10.5 mil lb
(4.76 mil kg). The difference in revenues going to the various states
from the distribution of quota is negligible when the preferred period
is compared to the two alternative periods. This falls within a range
of 0.003 to 2.300 percent.
There would be no substantial short-term economic impact on
businesses that service the recreational fishery (e.g., marina, bait
shops) from the recreational quota. The recreational fishery could take
up to 35.80 mil lb (16.23 mil kg) in 2000, while estimated harvest in
1997 was only 14.9 mil lb (6.76 mil kg) in 1997, leaving a projected
surplus of 20.9 mil lb (9.48 mil kg).
Impact of Permitting and Reporting Requirements
The alternatives concerning vessel and dealer permitting and
reporting would have no effect on revenues and would represent a minute
portion of the cost of doing business. The Council estimated that 249
new vessel applicants would each spend $7.50 to apply for a permit and
$20.00 per year for reporting requirements. No special knowledge is
required to fill out the permit application.
Impact of a Commercial Minimum Fish Size
With the exception of the pound net fishery and long haul seine
fishery in North Carolina, the preferred alternative of a 12-inch
(30.48 cm) minimum fish size would not have a significant impact on
revenues. Data suggest that from 1987-1996 only 1 percent of all fish
taken by all gear types in the commercial fishery were less than 12
inches (30.48 cm). There could be significant losses in revenue to the
pound net fishery and the long haul seine fishery in North Carolina
where 64.2 and 53.7 percent of the total bluefish catch, respectively,
may be lost due to this minimum fish size restriction. However, the
reduction in gross revenue is not expected to be significant for these
gear types in terms of their gross revenue from all fishing activities.
Although the effect of other minimum fish sizes is not known, it can be
construed that the greater the minimum fish size, the larger the
impact.
Impact of the Recreational Minimum Size Limit
The recreational minimum size limit of 12 inches may effect
revenues earned by party/charter boats. The decrease in revenues would
be attributable to anglers' perception of the fishing experience in
regard to keeping or releasing small fish and how this relates to
demand for party/charter boat trips. The greatest impact would be in
Rhode Island, Connecticut, and New York, where the minimum size limit
would impact established ``snapper'' fisheries. As alternative sizes
increase, the economic effect would be diminished. However, with
limited data, it is not possible to project at what size the negative
impact would dissipate.
Impacts of Rebuilding Strategies
The Council predicts that the preferred and other alternative
rebuilding strategies will have positive long-run economic impacts. In
the short term, the impact on revenues for the 2000 fishery for all
alternative rebuilding strategies depends on the ability to transfer
quota from the recreational to the commercial fishery. Since the
Council has decided to retain a quota of 5.95 mil lb for the commercial
fishery in 1999, any transfers above the levels discussed in the
previous section on quota allocation would have a positive economic
impact on the commercial fishery in the year 2000.
The Council prepared a FEIS for Amendment 1. A notice of
availability for the FEIS was published in the Federal Register on June
25, 1999 (64 FR 34235). A copy of the FEIS may be obtained from the
Council (see ADDRESSES).
This rule has been determined to be significant for the purposes of
Executive Order 12866.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the Paperwork Reduction Act (PRA), unless that
collection of information displays a currently valid OMB control
number.
This rule contains collection-of-information requirements subject
to the PRA. These collection-of-information requirements have been
submitted to the Office of Management and Budget for approval. The
public reporting burden for vessel logbooks is estimated to average 12
minutes per response. The reporting burden for dealer reports is
estimated to average 4 minutes for the IVR system and estimated to
average 2 minutes for completing NOAA Form 30-80. The reporting burden
for new requirements is estimated to be 30 minutes for vessel and
charter/party vessel permit applications, 12 minutes for dealer permit
applications, 45 minutes for vessel identification, 2 minutes for
completing the employment
[[Page 45942]]
section of the Processed Products Report, and 60 minutes for states to
apply for a transfer of commercial bluefish quota. These estimates
include the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information has
practical utility; the accuracy of the burden estimate; ways to enhance
the quality, utility, and clarity of the information to be collected;
and ways to minimize the burden of the collection of information,
including through the use of automated collection techniques or other
forms of information technology. Please send comments regarding these
burden estimates or any other aspect of the data requirements,
including suggestions for reducing the burden, to NMFS (see ADDRESSES)
and to the Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington, DC 20503 (ATTN: NOAA Desk Officer).
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: August 16, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.2, the definition for ``Bluefish Committee'' is
removed and a new definition for ``Bluefish Monitoring Committee'' is
added in alphabetical order to read as follows:
Sec. 648.2 Definitions.
* * * * *
Bluefish Monitoring Committee means a committee made up of staff
representatives of the Mid-Atlantic Fishery Management Council, the New
England Fishery Management Council, and South Atlantic Fishery
Management Council, the NMFS Northeast Regional Office, the NMFS
Northeast Fisheries Science Center, and the Commission. The Mid-
Atlantic Fishery Management Council's Executive Director or a designee
chairs the committee.
* * * * *
3. In Sec. 648.4, the section heading and paragraphs (a)(8), (b)
and (c)(2)(i) are revised, and paragraph (c)(3) is removed, to read as
follows:
Sec. 648.4 Vessel permits.
(a) * * *
(8) Atlantic bluefish vessels--(i) Commercial. Any vessel of the
United States including party and charter boats not carrying passengers
for hire, that fishes for, possesses, or lands Atlantic bluefish in or
from the EEZ in excess of the recreational possession limit specified
at Sec. 648.164 must have been issued and carry on board a valid
commercial bluefish vessel permit.
(ii) Party and charter vessels. Any party or charter boat must have
been issued and carry on board a valid party or charter boat a permit
to fish for bluefish if it is carrying passengers for hire. Such vessel
must observe the possession limits established pursuant to
Sec. 648.164, and the prohibitions on sale specified in Sec. 648.14(w).
(b) Permit conditions. Any person who applies for a fishing permit
under this section must agree as a condition of the permit that the
vessel and the vessel's fishing activity, catch, and pertinent gear
(without regard to whether such fishing occurs in the EEZ or landward
of the EEZ, and without regard to where such fish or gear are
possessed, taken or landed), are subject to all requirements of this
part, unless exempted from such requirements under this part. All such
fishing activities, catch, and gear will remain subject to all
applicable state requirements. Except as otherwise provided in this
part, if a requirement of this part and a management measure required
by a state or local law differ, any vessel owner permitted to fish in
the EEZ for any species managed under this part must comply with the
more restrictive requirement. Owners and operators of vessels fishing
under the terms of a summer flounder moratorium, scup moratorium, black
sea bass moratorium or bluefish commercial vessel permit must also
agree not to land summer flounder, scup, black sea bass, or bluefish,
respectively, in any state after NMFS has published a notification in
the Federal Register stating that the commercial quota for that state
or period has been harvested and that no commercial quota is available
for the respective species. A state not receiving an allocation of
summer flounder, scup, black sea bass, or bluefish, either directly or
through a coastwide allocation, is deemed to have no commercial quota
available. Owners or operators fishing for surf clams and ocean quahogs
within waters under the jurisdiction of any state that requires cage
tags are not subject to any conflicting Federal minimum size or tagging
requirements. If a surf clam and ocean quahog requirement of this part
differs from a surf clam and ocean quahog management measure required
by a state that does not require cage tagging, any vessel owners or
operators permitted to fish in the EEZ for surf clams and ocean quahogs
must comply with the more restrictive requirement while fishing in
state waters. However, surrender of a surf clam and ocean quahog vessel
permit by the owner by certified mail addressed to the Regional
Administrator allows an individual to comply with the less restrictive
state minimum size requirement, as long as fishing is conducted
exclusively within state waters. If the commercial black sea bass quota
for a period is harvested and the coast is closed to the possession of
black sea bass north of 35 deg.15.3' N. lat., any vessel owners that
hold valid commercial permits for both the black sea bass and the NMFS
Southeast Region Snapper-Grouper fisheries may surrender their
moratorium Black Sea Bass permit by certified mail addressed to the
Regional Administrator and fish pursuant to their Snapper-Grouper
permit, as long as fishing is conducted exclusively in waters, and
landings are made, south of 35 deg.15.3' N. lat. A moratorium permit
for the black sea bass fishery that is voluntarily relinquished or
surrendered will be reissued upon the receipt of the vessel owner's
written request after a minimum period of 6 months from the date of
cancellation.
(c) * * *
(2) * * * (i) An application for a permit issued under this
section, in addition to the information specified in paragraph (c)(1)
of this section, also must contain at least the following and any thing
else required by the Regional Administrator: Vessel name; owner name or
name of the owner's authorized representative, mailing address, and
telephone number; USCG documentation number and a copy of the vessel's
current USCG documentation or, for a vessel not required to be
documented under 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
[[Page 45943]]
capacity; type of fishing gear used by the vessel; number of crew;
number of party or charter passengers licensed to be carried (if
applicable); permit category; if the owner is a corporation, a copy of
the current Certificate of Incorporation or other corporate papers
showing the date of incorporation and the names of the current officers
of the corporation, and the names and addresses of all shareholders
owning 25 percent or more of the corporation's shares; if the owner is
a partnership, a copy of the current Partnership Agreement and the
names and addresses of all partners; if there is more than one owner,
the names of all owners having a 25-percent interest or more; and
permit number of any current or, if expired, previous Federal fishery
permit issued to the vessel.
* * * * *
4. In Sec. 648.5, the first sentence of paragraph (a) is revised to
read as follows:
Sec. 648.5 Operator permits.
(a) General. Any operator of a vessel fishing for or possessing sea
scallops in excess of 40 lb (18.1 kg), NE multispecies, monkfish,
mackerel, squid, butterfish, scup, black sea bass, or bluefish,
harvested in or from the EEZ, or issued a permit for these species
under this part, must have been issued under this section and carry on
board, a valid operator's permit. * * *
* * * * *
5. In Sec. 648.6, paragraph (a) is revised to read as follows:
Sec. 648.6 Dealer/processor permits.
(a) General. All NE multispecies, monkfish, sea scallop, summer
flounder, surf clam, ocean quahog, mackerel, squid, butterfish, scup,
black sea bass, or bluefish dealers and surf clam and ocean quahog
processors must have been issued under this section, and have in their
possession a valid permit for these species.
* * * * *
6. In Sec. 648.7, the first sentence of paragraphs (a)(1)(i) and
(a)(3)(i) and the heading and first sentence of paragraph (b)(1)(i) are
revised to read as follows:
Sec. 648.7 Recordkeeping and reporting requirements.
(a) * * *
(1) * * *
(i) All summer flounder, scup, black sea bass, Atlantic sea
scallop, NE multispecies, monkfish, Atlantic mackerel, squid,
butterfish, or bluefish dealers must provide: Dealer name and mailing
address; dealer permit number; name and permit number or name and hull
number (USCG documentation number or state registration number, which
ever is applicable) of vessels from which fish are landed or received;
trip identifier for a trip from which fish are landed or received;
dates of purchases; pounds by species (by market category, if
applicable); price per pound by species (by market category, if
applicable); port landed; signature of person supplying the
information; and any other information deemed necessary by the Regional
Administrator. * * *
* * * * *
(3) * * *
(i) Summer flounder, scup, black sea bass, Atlantic sea scallop, NE
multispecies, Atlantic mackerel, squid, butterfish, and bluefish
dealers must complete the ``Employment Data'' section of the Annual
Processed Products Report; completion of the other sections of that
form is voluntary. * * *
* * * * *
(b) * * *
(1) * * *
(i) Owners or operators of vessels issued a summer flounder, scup,
black sea bass, Atlantic sea scallop, NE multispecies, Atlantic
mackerel, squid, butterfish, or bluefish permit. The owner or operator
of any vessel issued a permit for summer flounder, scup, black sea
bass, Atlantic sea scallops, NE multispecies, Atlantic mackerel, squid,
butterfish, or bluefish must maintain on board the vessel, and submit,
an accurate daily fishing log report for all fishing trips, regardless
of species fished for or taken, on forms supplied by or approved by the
Regional Administrator. * * *
* * * * *
7. In Sec. 648.11, the first sentence of paragraph (a) and
paragraph (e) are revised to read as follows:
Sec. 648.11 At-sea sampler/observer coverage.
(a) The Regional Administrator may request any vessel holding a
permit for Atlantic sea scallops, or NE multispecies, or monkfish, or
Atlantic mackerel, squid, butterfish, or scup, or black sea bass, or
bluefish, or a moratorium permit for summer flounder, to carry a NMFS-
approved sea sampler/observer. * * *
* * * * *
(e) The owner or operator of a vessel issued a summer flounder
moratorium permit, or a scup moratorium permit, or a black sea bass
moratorium permit, or a bluefish permit, if requested by the sea
sampler/observer also must:
(1) Notify the sea sampler/observer of any sea turtles, marine
mammals, summer flounder, scup, or black sea bass, or bluefish, or
other specimens taken by the vessel.
(2) Provide the sea sampler/observer with sea turtles, marine
mammals, summer flounder, scup, or black sea bass, or bluefish, or
other specimens taken by vessel.
* * * * *
8. In Sec. 648.12, the introductory text is revised to read as
follows:
Sec. 648.12 Experimental fishing.
The Regional Administrator may exempt any person or vessel from the
requirements of subparts B (Atlantic mackerel, squid, and butterfish),
D (sea scallop), E (surf clam and ocean quahog), F (NE multispecies), G
(summer flounder), H (scup), I (black sea bass), or J (bluefish) of
this part for the conduct of experimental fishing beneficial to the
management of the resources or fishery managed under that subpart. The
Regional Administrator shall consult with the Executive Director of the
Council regarding such exemptions for the Atlantic mackerel, squid, and
butterfish, the summer flounder, the scup, the black sea bass, and the
bluefish fisheries.
* * * * *
9. In Sec. 648.14, paragraphs (w)(1) through (w)(5) are revised and
paragraphs (w)(6), (w)(7), and (x)(8) are added to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(w) * * *
(1) Possess in or harvest from the EEZ, Atlantic bluefish, in
excess of the daily possession limit found at Sec. 648.164, unless the
vessel is issued a valid Atlantic bluefish vessel permit under
Sec. 648.4(a)(8) and the permit is on board the vessel and has not been
surrendered, revoked, or suspended.
(2) Purchase, possess or receive for a commercial purpose, or
attempt to purchase, possess, or receive for a commercial purpose, in
the capacity of a dealer, except for transport on land, Atlantic
bluefish taken from a fishing vessel unless issued, and in possession
of, a valid Atlantic bluefish fishery dealer permit issued under
Sec. 648.6(a).
(3) Sell, barter, trade or transfer, or attempt to sell, barter,
trade or otherwise transfer, other than for transport, Atlantic
bluefish, unless the dealer or transferee has a dealer permit issued
under Sec. 648.6(a).
(4) Land Atlantic bluefish for sale in a state after the effective
date of the notification in the Federal Register, pursuant to
Sec. 648.161(b), which notifies permit holders that the commercial
quota is no longer available in that state.
[[Page 45944]]
(5) Carry passengers for hire, or carry more than three crew
members for a charter boat or five crew members for a party boat, while
fishing commercially pursuant to an Atlantic bluefish permit issued
under Sec. 648.4(a)(8).
(6) Land Atlantic bluefish for sale after the effective date of the
notification in the Federal Register pursuant to Sec. 648.161(a), which
notifies permit holders that the Atlantic bluefish fishery is closed.
(7) Sell or transfer bluefish harvested in or from the EEZ unless
the vessel has been issued a valid commercial permit pursuant to
Sec. 648.4(a)(8)(i).
(x) * * *
(8) All bluefish possessed on board a party or charter vessel
issued a permit under Sec. 648.4(a)(8) are deemed to have been
harvested from the EEZ.
10. Subpart J is revised to read as follows:
Subpart J--Management Measures for the Atlantic Bluefish Fishery
Sec.
648.160 Catch quotas and other restrictions.
648.161 Closures.
648.162 Minimum fish sizes.
648.163 Gear restrictions.
648.164 Possession restrictions.
648.165 Framework specifications.
Subpart J--Management Measures for the Atlantic Bluefish Fishery
Sec. 648.160 Catch quotas and other restrictions.
The fishing year is from January 1 through December 31.
(a) Annual review. The Bluefish Monitoring Committee will review
the following data, subject to availability, on or before August 15 of
each year to recommend the total allowable level of landings (TAL) and
other restrictions necessary to achieve a target fishing mortality rate
(F) of 0.51 in 1999 and 2000; a target F of 0.41 in 2001, 2002, and
2003; a target F of 0.31 in 2004, 2005, 2006, and 2007; and a target F
of 0.36 thereafter: Commercial and recreational catch data; current
estimates of fishing mortality; stock status; recent estimates of
recruitment; virtual population analysis results; levels of
noncompliance by fishermen or individual states; impact of size/mesh
regulations; sea sampling data; impact of gear other than otter trawls
and gill nets on the mortality of bluefish; and any other relevant
information.
(b) Recommended measures. Based on the annual review, the Bluefish
Monitoring Committee shall recommend to the Coastal Migratory Committee
of the Council and the Commission the following measures to assure that
the F specified in paragraph (a) of this section will not be exceeded:
(1) A TAL set from a range of zero 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 zero to 20
bluefish to achieve the specified F.
(5) Recreational minimum fish size.
(6) Recreational season.
(7) Restrictions on gear other than otter trawls and gill nets.
(c) Allocation of the TAL--(1) Recreational harvest limit. The
recreational fishery shall be allocated 83 percent of the TAL as a
harvest limit.
(2) Commercial quota. The commercial fishery shall be allocated 17
percent of the TAL as a quota. If 17 percent of the TAL is less than
10.5 mil lb (4.8 mil kg), and the recreational fishery is not projected
to land 83 percent of the TAL for the upcoming year, the commercial
fishery may be allocated up to 10.5 mil lb (4.8 mil kg) as its quota,
provided that the combination of the projected recreational landings
and the commercial quota does not exceed the TAL.
(d) Annual fishing measures. The Council's Coastal Migratory
Committee shall review the recommendations of the Bluefish Monitoring
Committee. Based on these recommendations and any public comment, the
Coastal Migratory Committee shall recommend to the Council measures
necessary to assure that the applicable specified F will not be
exceeded. The Council shall review these recommendations and, based on
the recommendations and any public comment, recommend to the Regional
Administrator by September 1 measures necessary to assure that the
applicable specified F will not be exceeded. The Council's
recommendations must include supporting documentation, as appropriate,
concerning the environmental, economic, and social impacts of the
recommendations. The Regional Administrator shall review these
recommendations and any recommendations of the Commission. After such
review, the Regional Administrator will publish a proposed rule in the
Federal Register on or about October 15 to implement a coastwise
commercial quota and recreational harvest limit and additional
management measures for the commercial fishery, and will publish a
proposed rule in the Federal Register on or about February 15 to
implement additional management measures for the recreational fishery,
if received from the Council by January 1, 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
Administrator will publish a final rule in the Federal Register.
(e) Distribution of annual quota. (1) The annual commercial quota
will be distributed to the states, based upon the following
percentages:
Annual Commercial Quota Shares
------------------------------------------------------------------------
State Percentage
------------------------------------------------------------------------
ME......................................................... 0.6685
NH......................................................... 0.4145
MA......................................................... 6.7167
RI......................................................... 6.8081
CT......................................................... 1.2663
NY......................................................... 10.3851
NJ......................................................... 14.8162
DE......................................................... 1.8782
MD......................................................... 3.0018
VA......................................................... 11.8795
NC......................................................... 32.0608
SC......................................................... 0.0352
GA......................................................... 0.0095
FL......................................................... 10.0597
------------
Total.................................................. 100.0000
------------------------------------------------------------------------
Note: The ``Total'' does not actually add up to 100.0000 because of
rounding error.
(2) All bluefish landed for sale in a state shall be applied
against that state's annual commercial quota, regardless of where the
bluefish were harvested. Any overages of the commercial quota landed in
any state will be deducted from that state's annual quota for the
following year.
(f) Quota transfers and combinations. Any state implementing a
state commercial quota for bluefish may request approval from the
Regional Administrator to transfer part or all of its annual quota to
one or more other states. Two or more states implementing a state
commercial quota for bluefish may request approval from the Regional
Administrator to combine their quotas, or part of their quotas, into an
overall regional quota. Requests for transfer or combination of
commercial quotas for bluefish must be made by individual or joint
letter(s) signed by the principal state official with marine fishery
management responsibility and expertise, or his/her previously named
designee, for each state involved. The letter(s) must certify that all
pertinent state requirements have been met and identify the states
involved and the amount of quota to be transferred or combined.
(1) Within 10 working days following the receipt of the letter(s)
from the states involved, the Regional Administrator shall notify the
appropriate state
[[Page 45945]]
officials of the disposition of the request. In evaluating requests to
transfer a quota or combine quotas, the Regional Administrator shall
consider whether:
(i) The transfer or combination would preclude the overall annual
quota from being fully harvested.
(ii) The transfer addresses an unforeseen variation or contingency
in the fishery.
(iii) The transfer is consistent with the objectives of the FMP and
Magnuson-Stevens Act.
(2) The transfer of quota or the combination of quotas will be
valid only for the calendar year for which the request was made and
will be effective when the notice of approval of the transfer or
combination has been published in the Federal Register.
(3) A state may not submit a request to transfer quota or combine
quotas if a request to which it is party is pending before the Regional
Administrator. A state may submit a new request when it receives notice
that the Regional Administrator has disapproved the previous request or
when notice of the approval of the transfer or combination has been
published in the Federal Register.
(4) If there is a quota overage among states involved in the
combination of quotas at the end of the fishing year, the overage will
be deducted from the following year's quota for each of the states
involved in the combined quota. The deduction will be proportional,
based on each state's relative share of the combined quota for the
previous year. A transfer of quota or combination of quotas does not
alter any state's percentage share of the overall quota specified in
paragraph (e)(1) of this section.
(g) Based upon any changes in the landings data available from the
states for the base years 1981-89, the Commission and the Council may
recommend to the Regional Administrator that the states' shares
specified in paragraph (e)(1) of this section be revised. The Council's
and the Commission's recommendation must include supporting
documentation, as appropriate, concerning the environmental and
economic impacts of the recommendation. The Regional Administrator
shall review the recommendation of the Commission and the Council.
After such review, NMFS will publish a proposed rule in the Federal
Register to implement a revision in the state shares. After considering
public comment, NMFS will publish a final rule in the Federal Register
to implement the changes in allocation.
Sec. 648.161 Closures.
(a) EEZ closure. The Regional Administrator shall close the EEZ to
fishing for bluefish by commercial vessels for the remainder of the
calendar year by publishing notification in the Federal Register if he/
she determines that the inaction of one or more states will cause the
applicable F specified in Sec. 648.160(a) to be exceeded, or if the
commercial fisheries in all states have been closed. The Regional
Administrator may reopen the EEZ if earlier inaction by a state has
been remedied by that state, or if commercial fisheries in one or more
states have been reopened without causing the applicable specified F to
be exceeded.
(b) State quotas. The Regional Administrator will monitor state
commercial quotas based on dealer reports and other available
information and shall determine the date when a state commercial quota
will be harvested. The Regional Administrator 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 bluefish in that state.
Sec. 648.162 Minimum fish sizes.
If the Council determines through its annual review or framework
adjustment process that minimum fish sizes are necessary to assure that
the fishing mortality rate is not exceeded, or to attain other FMP
objective, such measures will be enacted through the procedure
specified in Sec. 648.160(d) or Sec. 648.165.
Sec. 648.163 Gear restrictions.
If the Council determines through its annual review or framework
adjustment process that gear restrictions are necessary to assure that
the fishing mortality rate is not exceeded, or to attain other FMP
objectives, such measures will be enacted through the procedure
specified in Sec. 648.160(d) or Sec. 648.165.
Sec. 648.164 Possession restrictions.
(a) No person shall possess more than 10 bluefish in, or harvested
from, the EEZ unless that person is the owner or operator of a fishing
vessel issued a bluefish commercial permit or is issued a bluefish
dealer permit. Persons aboard a vessel that is not issued a bluefish
commercial permit are subject to this possession limit. The owner,
operator, and crew of a charter or party boat issued a bluefish
commercial permit are not subject to the possession limit when not
carrying passengers for hire and when the crew size does not exceed
five for a party boat and three for a charter boat.
(b) Bluefish harvested by vessels subject to the possession limit
with more than one person on board may be pooled in one or more
containers. Compliance with the daily possession limit will be
determined by dividing the number of bluefish on board by the number of
persons on board, other than the captain and the crew. If there is a
violation of the possession limit on board a vessel carrying more than
one person, the violation shall be deemed to have been committed by the
owner and operator.
Sec. 648.165 Framework specifications.
(a) Within season management action. The Council may, at any time,
initiate action to add or adjust management measures if it finds that
action is necessary to meet or be consistent with the goals and
objectives of the Bluefish FMP.
(1) Adjustment process. After a management action has been
initiated, the Council shall develop and analyze appropriate management
actions over the span of at least two Council meetings. The Council
shall provide the public with advance notice of the availability of
both the proposals and the analysis and the opportunity to comment on
them prior to and at the second Council meeting. The Council's
recommendation on adjustments or additions to management measures must
come from one or more of the following categories: Minimum fish size,
maximum fish size, gear restrictions, gear requirements or
prohibitions, permitting restrictions, recreational possession limit,
recreational season, closed areas, commercial season, description and
identification of essential fish habitat (EFH), fishing gear management
measures to protect EFH, designation of habitat areas of particular
concern within EFH, and any other management measures currently
included in the FMP.
(2) Council recommendation. After developing management actions and
receiving public testimony, the Council shall make a recommendation to
the Regional Administrator. The Council's recommendation must include
supporting rationale and, if management measures are recommended, an
analysis of impacts and a recommendation to the Regional Administrator
on whether to issue the management measures as a final rule. If the
Council recommends
[[Page 45946]]
that the management measures should be issued as a final rule, the
Council must consider at least the following factors and provide
support and analysis for each factor considered:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season;
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Council's recommended management measures;
(iii) Whether there is an immediate need to protect the resource;
and
(iv) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule.
(3) Action by NMFS. If the Council's recommendation to NMFS
includes adjustments or additions to management measures and:
(i) If NMFS concurs with the Council's recommended management
measures and determines that the recommended management measures should
be issued as a final rule based on the factors specified in paragraph
(a)(2) of this section, then the measures will be issued as a final
rule in the Federal Register.
(ii) If NMFS concurs with the Council's recommendation and
determines that the recommended management measures should be published
first as a proposed rule, then the measures will be published as a
proposed rule in the Federal Register. After additional public comment,
if NMFS concurs with the Council's recommendation, then the measures
will be issued as a final rule in the Federal Register.
(iii) If NMFS does not concur, then the Council will be notified in
writing of the reasons for the non-concurrence.
(b) Emergency action. Nothing in this section is meant to derogate
from the authority of the Secretary to take emergency action under
section 305(e) of the Magnuson-Stevens Act.
[FR Doc. 99-21591 Filed 8-20-99; 8:45 am]
BILLING CODE 3310-22-P
