Northeast Multispecies Fishery; Final Rule DEPARTMENT OF COMMERCE

SUMMARY: NMFS issues this final rule to implement Amendment 5 to the

Fishery Management Plan for the Northeast Multispecies Fishery (FMP).

Amendment 5 implements conservation measures to eliminate the

overfished condition of the multispecies finfish (groundfish) stocks.

This final rule implements the Amendment by imposing a moratorium with

exceptions for certain vessels fishing in the fishery, an effort

control system to reduce fishing effort over 5 to 7 years, monitoring

requirements to track fishing effort, and new permitting and reporting

requirements. In addition, the rule increases minimum mesh size

requirements for several different areas and expands the area where

mesh size is regulated.

EFFECTIVE DATE: March 1, 1994, except for Sec. 651.32(a), which is

effective April 15, 1994. Section 651.9(a) (11) and (12), Sec. 651.9(e)

(33) and (34), and Sec. 651.27(b) expire at 2400 hours, April 2, 1994.

ADDRESSES: Copies of Amendment 5, its regulatory impact review (RIR)

and the initial regulatory flexibility analysis (IRFA) contained within

the RIR, and the final supplemental environmental impact statement

(FSEIS) are available from Douglas Marshall, Executive Director, New

England Fishery Management Council, Suntaug Office Park, 5 Broadway

(U.S. Rte. 1), Saugus, MA 01906-1097. Comments regarding burden-hour

estimates for collection-of-information requirements contained in this

final rule should be sent to Richard B. Roe, Northeast Regional

Director, Northeast Regional Office, National Marine Fisheries Service,

One Blackburn Drive, Gloucester, MA 01930, and the Office of Management

and Budget (Attention NOAA Desk Officer), Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, Fishery Policy

Analyst, 508-281-9252 or E. Martin Jaffe, Fishery Policy Analyst, 508-

281-9272.

SUPPLEMENTARY INFORMATION:

Background

The New England Fishery Management Council (Council) approved at

its June 1993 meeting a package of measures for inclusion in Amendment

5 to the FMP. The FMP has been in effect since 1986, and has been

amended four times. The two main objectives of Amendment 5 are to

eliminate the overfished condition of the principal groundfish stocks

(cod, haddock, and yellowtail flounder) by reducing the rate at which

fish are caught by 50 percent over the next 5 to 7 years, and to reduce

the bycatch of harbor porpoise in the sink gillnet fishery.

Two measures contained in Amendment 5, as originally submitted,

were disapproved by the Secretary of Commerce (Secretary) on September

30, 1993, and were not contained in the proposed rule to implement the

amendment published on October 27, 1993 (58 FR 57774). Reasons for

disapproval of those measures were given in the proposed rule and are

not repeated here.

Amendment 5, less the two measures disapproved on September 30,

1993, was approved on January 3, 1994, after consideration of the

comments received during the public comment period. This rule

implements measures in Amendment 5 that are expected to reduce the

fishing mortality rate to such a level as to eliminate overfishing.

Since development began on the amendment, the condition of the

multispecies finfish stocks continued to decline to record low levels.

It is essential that fishing mortality levels be reduced as soon as

possible because only then can rebuilding of stocks occur, especially

for haddock, cod, and yellowtail flounder.

In approving the amendment, the Director, Northeast Region, NMFS,

(Regional Director) notified the Council of several concerns that had

been raised during Secretarial review, including that the Council needs

to develop specific rebuilding goals, the annual mortality reduction

may be set too low in the early years of the amendment, the effort

exemption for vessels 45 ft (13.7 m) or less in length may be too

permissive, that the overfishing definition for pollock may need to be

adjusted, and the sink gillnet measures to reduce harbor porpoise take

may not be sufficient. Also, the Council's objective to eliminate

overfishing for cod and yellowtail flounder, while certainly a

necessary first step, fails to offer specific rebuilding objectives for

these species and the Council has been notified that it should begin

formulating such objectives as soon as possible.

Incorporation of Emergency Measures Into the Final Rule

On January 3, 1994, NMFS published an emergency rule, at 59 FR 26,

effective January 3, 1994, through April 2, 1994, to protect the

seriously depleted stocks of haddock. The emergency rule established a

500-lb (226.8-kg) possession limit for haddock; began the closure of an

expanded Closed Area II on January 3, 1994, rather than February 1,

1994; and implemented several other measures to protect haddock. This

final rule implementing Amendment 5 permanently implements several

measures that were contained in both the emergency rule and in the

proposed rule for Amendment 5. Other measures in the emergency rule

that were not contained in the proposed rule for Amendment 5 are

continued in effect by this final rule, but will expire on April 2,

1994, as provided by the emergency rule, unless extended through

further rulemaking. A description of these measures follows.

Definitions for ``bottom-tending gillnet or sink gillnet'',

``dredge or dredge gear'', ``offload'', ``pair trawl or pair

trawling'', ``scallop dredge vessel'', ``standard box'', ``standard

tote'', and ``transfer'', which were temporarily added by the emergency

rule, are permanently added to Sec. 651.2 by this final rule.

Prohibitions on pair trawling in the groundfish fishery, temporarily

added at Sec. 651.7(a) (5) and (6) by the emergency rule, are

permanently added at Sec. 651.9(e)(27) by this final rule. A

prohibition on transfer of multispecies finfish at sea, temporarily

added at Sec. 651.7(a)(7) by the emergency rule, is permanently added

at Sec. 651.9(e)(3) by this final rule. Prohibitions concerning haddock

possession, temporarily added at Sec. 651.7(a) (3) and (4) by the

emergency rule, are permanently added at Sec. 651.9(a) (11) and (12) by

this final rule. A prohibition concerning sink gillnets, temporarily

added at Sec. 651.7(b)(15) by the emergency rule, is permanently added

at Sec. 651.9(e)(31) by this final rule. A prohibition concerning entry

into Closed Area II of Georges Bank during a specified period of time,

temporarily added at Sec. 651.7(b)(16) by the emergency rule, is

permanently added at Sec. 651.9(e)(20) by this final rule. A

prohibition concerning haddock possession on sea scallop dredge

vessels, temporarily added at Sec. 651.7(b)(17), and a prohibition

concerning a haddock possession limit temporarily added at

Sec. 651.7(b)(18) by the emergency rule, are added at Sec. 651.9(e)

(33) and (34), respectively, effective through April 2, 1994, by this

final rule. Prohibitions concerning possession of multispecies finfish

harvested by pair trawling, temporarily added at Sec. 651.7(b) (19) and

(20) by the emergency rule, are permanently added at Sec. 651.9(e)(27)

by this final rule. A prohibition concerning transfer of multispecies

finfish from one vessel to another, temporarily added at

Sec. 651.7(b)(21) by the emergency rule, is permanently added at

Sec. 651.9(e)(5) by this final rule. A prohibition on pair trawling for

multispecies finfish, temporarily added at Sec. 651.20(g) by the

emergency rule, is permanently added at Sec. 651.20(h)(3) by this final

rule. The closure of Closed Area I, temporarily added at

Sec. 651.21(c)(1) by the emergency rule, is permanently added at

Sec. 651.21(a) by this final rule. The closure of Closed Area II,

temporarily added at Sec. 651.21(c)(2) by the emergency rule, is

permanently added at Sec. 651.21(b) by this final rule, except that the

annual closure period for 1994 is February through May, rather than

January through May, as in the emergency rule. The haddock possession

limits, temporarily added at Sec. 651.28 by the emergency rule, are

added at Sec. 651.27(b), effective through April 2, 1994, by this final

rule. Transfer-at-sea measures, temporarily added at Sec. 651.29 by the

emergency rule, are permanently added at Sec. 651.30 by this final

rule. Closed areas illustrated in Figure 6 to part 651, temporarily

added by the emergency rule, are permanently incorporated into Figure 3

to part 651 by this final rule.

Amendment 5 Measures

Success of the amendment is largely dependent on meeting the annual

fishing mortality reduction targets. NMFS is concerned that the annual

targets may not be adequately protective, particularly during the first

years of the plan, although it is recognized that the Council chose to

minimize first year restrictions for valid socio-economic concerns.

Therefore, it is more critical that the Council responds in a timely

way to problems through the framework measure to ensure achievement of

the amendment's objectives.

The Council has been requested to make it a priority to reexamine

the exemption from effort control for vessels 45 ft (13.7 m) and less.

The 45-ft (13.7-m) limit exempts a large number of vessels from effort

control measures, thereby creating the possibility that the vessels may

significantly reduce any gains from controls on larger vessels.

Moreover, establishing a 45-ft (13.7-m) limit for vessels may create

more inequities between vessels in the same port than if the minimum

had been a smaller size. The Council was asked to consider measures

that would prevent modification of vessels longer than 45 ft (13.7 m)

to a size that would allow them to be exempt if the Council chose not

to reduce the size of vessels being exempted.

The remaining overfishing definitions have been approved, but the

definition for pollock needs to be reevaluated. Since the public

hearings of May 1993, an assessment on pollock was reviewed and

approved by the Stock Assessment and Review Committee of the NMFS

Northeast Fisheries Science Center. The assessment indicates that a 25%

maximum spawning potential (MSP) level is more appropriate than the 20%

MSP obtained by analogy to similar species. Current (1992) fishing

mortality for pollock is estimated to be 0.72, while the fishing

mortality rate that would produce a spawning stock abundance amount

which is 20% of the maximum spawning potential (F20) is

0.65 and a fishing mortality rate that would produce a spawning stock

abundance of 25% of the maximum spawning potential (F25)

is 0.47. Consequently, under either definition, pollock are overfished.

Although the measures contained in Amendment 5 will have a collateral

benefit on pollock, the Council was requested to reconsider this

definition in developing Amendment 6.

The Council and the gillnet fishermen have expressed concern over

the default harbor porpoise protection measure. The Council requested,

at its February meeting, that implementation of the 4-day blocks out

per month for gillnet gear be delayed until April 15, 1994, because it

appears unlikely that harbor porpoise will be present in significant

numbers until then. Others commented that when significant numbers of

porpoises are present, the 4-days out of the fishery per month

requirement may not be adequate to protect the porpoises. The final

rule makes the 4-day out provision effective April 15, 1994. The

Council is requested to take swift action under the harbor porpoise

framework measure to ensure the protection of porpoise through the

continued examination of the time and area of the gear-out requirement,

and if necessary to protect porpoise, to change the provision.

The permit moratorium contained in Amendment 5 continues to be

contentious. It becomes even more so as other fisheries establish

control dates that some perceive as limiting the options available to

fishermen. The Council was asked to work closely with the Mid-Atlantic

Fishery Management Council to insure that fishermen continue to have

alternatives available, such as the mackerel fishery, which is

underexploited and can withstand additional effort. The control date

established for the Atlantic mackerel, squid and butterfish fisheries

may prevent this fishery being an option for groundfish vessels and the

Mid-Atlantic Council was asked to consider this and work with the

Council before developing final measures.

This final rule implements: A moratorium on most new entrants into

the multispecies finfish fishery; limitations on upgrading of vessel

size and engine horsepower; exceptions to the moratorium for vessels

using fewer than 4,500 rigged hooks or fishing under a possession

limit; an effort-reduction program where vessels fish using a

combination of blocks of time out of the fishery and time spent at the

dock (Fleet Days-At-Sea(DAS)), unless they elect to take an allocation

of actual Individual DAS that vessels may fish for multispecies

finfish; exceptions to the effort-reduction program for vessels 45 ft

(13.7 m) and less in length, vessels fishing fewer than 4,500 hooks,

vessels fishing sink gillnet gear, and vessels at sea for less than a

day; a possession limit for scallop dredge vessels; a requirement to

purchase and install a Vessel Tracking System (VTS) unit for vessels

fishing Individual DAS and vessels that have historically fished with a

scallop dredge and otter trawl; a call-in system for other vessels in

the Fleet DAS reduction program; a minimum mesh size of 5 and 1/2

inches (13.97 cm) in the Southern New England/Mid-Atlantic area; an

increase in the minimum mesh size in the Gulf of Maine/Georges Bank

area from 5 and 1/2 (13.97 cm) to 6 inches (15.24 cm); exceptions to

the mesh-size regulations for vessels possessing less than the

possession limit, and for vessels fishing with purse seine or midwater

trawl gear; minimum fish sizes; a prohibition on pair trawling;

seasonal mesh requirements in the Stellwagen Bank/Jeffreys Ledge area;

a suspension of the closure of Area I except for fixed gear; a

modification of Closed Area II in area and time; a closure of an area

in the vicinity of the Nantucket Lightship when a research trawl survey

index is reached; a requirement that vessels fishing for northern

shrimp use a finfish excluder device; permit requirements for vessel

operators and dealers; mandatory reporting for permitted vessels and

dealers; mandatory observer requirements for vessels if required by the

Regional Director; and framework measures to adjust the effort-control

program and other measures.

Permit Changes and Applicable Dates

This rule substantially changes the fishing vessel permit

application process. Vessel owners must now choose from several

different permit categories. This choice will have implications on the

future activity of a vessel. The permit category requirements and

restrictions are complex and the applicants acting in anticipation of

the final rule have been reluctant to choose a permit category, until

they have discussed the implications with NMFS. Because of the volume

of calls and requests for assistance received from the industry, NMFS

has been unable to provide assistance to all those requesting it. To

allow additional time for applicants to complete their vessel permit

applications, the vessel permit requirement, and related measures, such

as effort control measures and possession limits, become applicable on

May 1, 1994. To be ensured of having a vessel permit by May 1, 1994,

completed vessel permit applications must be received by NMFS by March

31, 1994. Applications received after March 31, 1994, cannot be

guaranteed to be processed before May 1, 1994. Until these provisions

of the regulations become applicable, vessels holding 1993 multispecies

permits can fish for, possess or land multispecies in or from the EEZ.

This change will allow NMFS to continue to provide assistance to

the industry so that the industry can make informed choices in a timely

way on these important decisions. To further assist the industry, the

Regional Director intends to allow vessel owners who believe they

mistakenly chose a permit category based on incomplete information, to

change permit categories within 30 days of receipt of their 1994

Federal multispecies permit. This change must be requested in writing

and is in addition to the one change in category allowed under

Sec. 651.4(f)(2)(iv).

The Regional Director has determined that monitoring of vessels in

the Fleet DAS reduction program will be accomplished initially through

the call-in system. NMFS has reviewed several card monitoring systems

to determine their appropriateness for this application. NMFS found

that while these systems may serve the need, their cost, reliability,

level of sophistication, and the relative newness of the technology

make implementation difficult. The Regional Director does not believe

that such a system could be made operational by the time of

implementation and therefore has reserved the card monitoring system.

In addition, the Regional Director has authorized, pursuant to

Sec. 651.29(c), the use of the alternative call-in system as the sole

method of notification for the DAS program. Until the Regional Director

determines that the VTS is operable and he has provided adequate

notification to permit holders, vessels participating in the DAS

program must use the call-in system to provide notification of when

they are leaving for and returning from fishing trips.

Comments and Responses

Written comments were submitted by Alliance for Community

Education, Associated Fisheries of Maine, Center for Marine

Conservation, City of Gloucester Mayor-elect Bruce H. Tobey, Commercial

Fisheries News, Conservation Law Foundation, East Coast Fisheries

Foundation, Inc., Gloucester Fishermen's Wives Association, Gloucester

United, Maine Fishermen's Cooperative Association, Maine Gillnetters

Association, Marine Mammal Commission, National Italian American

Foundation, New England Fishery Management Council, North Shore Chamber

of Commerce, Inc., Portland Fish Exchange, Senator George Mitchell,

U.S. Coast Guard, and 18 individuals. In addition, letters containing

461 signatures were submitted in support of the Gloucester United

comments.

Four VTS vendors provided comment on the proposed monitoring

requirements under which they would be certified.

Comment 1: Three associations and four individuals stated that the

amendment should be approved.

Response: The comments have been noted and the amendment has been

approved.

Comment 2: One association expressed its support for an overall

catch quota to ensure populations are not overfished in case measures

to limit days at sea are not successful in reducing the amount of fish

caught.

Response: The Council did not include overall quotas out of

concerns that include possible market disruptions that could result

when a quota is caught, small boats and large boats having to compete

against each other for available quota, and the difficulty in

monitoring quotas among different areas. Instead of an absolute quota,

the Council chose the annual harvest targets to be used to gauge

progress towards attaining the interim mortality reduction targets.

NMFS and the Council are required to perform an annual review to

determine what the actual mortality rate is compared to the harvest

targets. Rather than quotas, the Council will then be able to modify

the other measures contained within the amendment by using the

framework to ensure that the targets are not exceeded in future years.

Comment 3: One association expressed concern about NMFS' ability to

administer and enforce the amendment and recommended that NMFS enlist

the advice of the Council and experienced members of the fishing

industry.

Response: Most of the planning for implementation of the amendment

and its administration and enforcement has already been done. NMFS will

continue to work with the Council to address problems as they arise and

will solicit industry advice when appropriate.

Comment 4: One association commented that Amendment 5 will provide

further restrictions on small-and medium-sized vessels that are already

limited by weather. Vessels will be forced to fish in bad weather and

lives will be lost.

Response: The Council, in deliberating the amendment, made a

conscious decision to reduce the impacts on small vessels. The

possession limit exemption and hook exemption from the permit

moratorium, and the 45-foot and day-trip exemptions from effort control

were designed with the small and medium sized vessels in mind. Vessels

outside these categories will be affected by the combined measures.

Whether these vessels will decide to fish in bad weather is unknown,

but the Council believes that other factors such as declining stock

abundance and the competition for scarce catches are more likely to

influence such a decision. NMFS, in approving this amendment, agrees

with the Council's conclusions.

Comment 5: One association commented that Amendment 5 measures urge

fishermen to go into alternative fisheries. This will be difficult

because it costs money to get into a new fishery and banks and lending

institutions are hesitant to lend money. Larger vessels that use up

their groundfish days will have to resort to small-mesh fisheries to

survive.

Response: The declining state of the groundfish resource makes it

increasingly difficult to make a successful trip. Vessel owners facing

such a decline would normally consider alternatives to groundfish,

which the amendment's measures support. A switch to a new fishery may

mean a capital investment in new gear. The amendment makes no

distinction regarding which vessels may be able to switch to other

fisheries and it imposes a consistent possession limit on all vessel

size classes when small-mesh gear is used to lessen the impact on

groundfish. Using the framework measure of subpart C, the Council may

adjust these measures if it determines that there is a problem.

Comment 6: Six associations and seven individuals recommended that

the Secretary enter into negotiated rulemaking under the Negotiated

Rulemaking Act of 1990 instead of implementing the moratorium, DAS, and

target quotas.

Response: The responses to the recommendation to disapprove the

moratorium, the DAS provisions, and target quotas are provided under

Comments 7, 35, and 36. Development of fishery management plans and

amendments must adhere to procedures provided for in the Magnuson

Fishery Conservation and Management Act (Magnuson Act), which

established fishery management councils and the development of fishery

management plans to ensure public participation by the affected public

in the process, similar to the intent of the Negotiated Rulemaking Act.

The Magnuson Act development process for Amendment 5 involved active

public participation throughout. At its Multispecies Committee and

Council meetings, the Council provided ample opportunity and encouraged

the public's development of alternative management measures. At the two

rounds of public hearings, which were well attended by the fishing

industry, several alternative management plans were proposed. Most were

analyzed against the Council's objectives and many of the measures

proposed were adopted by the Council. Several of these had to be

adjusted to ensure that they would meet the amendment's objectives.

Because of the public process that has already occurred, and the

many opportunities for comment, there was no need for a negotiated

rulemaking. The Council may not have decided on measures favored by all

in the fishing industry, but it is the Council's responsibility to

exercise its best judgement on what is necessary and appropriate for

the fishery under its jurisdiction.

Vessel Permits/Limited Entry Permits

Comment 7: Six associations and eight individuals recommended that

the moratorium on vessel permits be disapproved. The commenters stated

that the moratorium is not based upon conservation, will change the

character of the industry leading to corporate ownership, is

irreversible, and was rejected by the fishing industry at public

hearings.

Response: A moratorium is important to the effort reduction program

because it enhances the predictability of the effect of effort

reductions on total mortality and it reduces the impact of the effort

reductions on individual participants. To insure some control on the

predictability of the effort reduction program, a finite number of

units of effort, i.e., fishing vessels, is necessary. Otherwise, the

size of the reduction in fishing mortality could not be predicted and

would not be known until after the effect of the new vessels that had

entered the fishery could be measured. Consequently, the Council would

always be playing catch-up with little likelihood of success.

A moratorium is important to controlling the magnitude of the

impact of effort reductions on individual participants in the fishery.

Without a moratorium, new vessels could continue to enter the fishery.

If this occurred, individual vessel time at sea would have to be

reduced to compensate for the increase in total time at sea. During the

rebuilding program, this would increase the magnitude of the individual

reductions in effort proposed and, as the resource improves, even more

vessels would be encouraged to enter and any individual gains

associated with the improvement in the resource would be dissipated.

The unpredictability of future individual reductions would contribute

to economic instability in the fleet and the inability of participants

to plan for the long term.

The Council proposed the moratorium to ensure long-term gains for

those individuals being forced to make short-term sacrifices in the

form of effort controls. As the effort control measures achieve fishing

mortality reductions and the resource starts to rebuild, new entrants

into the fishery would likely harvest the surplus in the absence of a

moratorium. Thus, there would be no promise of a ``return on

investment'' for the vessels that are making the sacrifices in the

early years of the plan. Moreover, a moratorium provides an incentive

to participants to protect their long-term interests. This translates

into increased protection for the resource. Effort control measures

without a moratorium are less likely to provide conservation benefits

because an important restriction on the expansion of total effort would

have been eliminated.

It is unknown whether the moratorium will change the character of

the industry. It is difficult, if not impossible, to predict the

individual vessel's decisions and the circumstances leading to those

decisions that would be made to allow such a wholesale change.

The Council allowed for some new entry to the fishery through the

use of the 4,500 hook and possession limit exemptions. In providing

these exemptions, the Council determined that these activities would

not have a significant impact on attaining the goals and objectives of

the amendment. These exemptions and the moratorium itself can be

reviewed and modified in future years if the Council determines that

there is need and that the amendment's objectives could still be met.

The Council has also stated its intention that the moratorium be

effective only for the duration of the effort reduction program

established by this amendment.

While there was some support for the moratorium at the public

hearings, the primary rationale for approval is its relationship to the

effort reduction program. Absolute acceptance by the industry for a

measure, though desired, is not the sole criteria on whether a given

measure should be approved.

Comment 8: One association commented that, in Sec. 651.4, the

eligibility criteria for a limited entry permit and conditions for

upgrading are very similar to those promulgated in the original Fishery

Management Plan for the Atlantic Surf Clam and Ocean Quahog Fisheries.

With that plan, all the participants agreed that the tendency of the

standards was to encourage an ``arms race,'' which consumed capital and

complicated effort reduction objectives for years. This should be

avoided if possible.

Response: Some of the language and requirements for moratorium

permits are similar to those contained in fishery management plan for

the Mid-Atlantic surf clam fishery. The Council was aware of the

problems experienced in that fishery, because it was consulted and

involved in the development of the plan for that fishery. Many of the

conditions that occurred in the Mid-Atlantic surf clam fishery after

implementation of the moratorium have already occurred in the

multispecies fishery. In the multispecies fishery, similar to what

happened in the surf clam fishery, there has been a rapid rise in

fishing effort brought about by several factors, including longer

trips, shorter turnaround time between trips, and increased technology

making fishermen more efficient. The Council, therefore, attempted to

minimize problems in Amendment 5 by allowing some flexibility in

limitations on size and horsepower and by adopting a framework measure

to facilitate adjustments to measures.

Comment 9: One association commented that, in Sec. 651.4(q) of the

vessel permit requirements, the provision that a limited access permit

is forfeited if not annually renewed is likely to cause fishermen to

lose their license permanently because of a technicality. Either an

annual renewal notice or other flexibility should be incorporated to

avoid serious hardship claims.

Response: Since the inception of annual permit renewals in 1986,

NMFS has sent annual permit renewal applications to those issued

permits in the previous year. This practice will not change with the

implementation of this amendment. However, it will continue to be the

vessel owner's responsibility to have a valid Federal Fisheries Permit,

maintained on board the vessel, before engaging in fishing for

multispecies finfish.

Comment 10: One association questioned whether the restriction on

issuance of limited access permits, contained in Sec. 651.4(s) of the

vessel permit requirements, meant that a vessel in this fishery could

not enter other fisheries. If this is the case, then the commenter

stated it would be a clear violation of national standard 6.

Response: Vessels may enter, and are encouraged to enter, other

fisheries, so long as they meet the criteria for entry to those

fisheries. The section cited does not limit a vessel from entering

other fisheries; rather, Sec. 651.4(s) specifies that the permit or

fishing history of one vessel may not be used to qualify another vessel

at the same time in some other fishery. This means that if the vessel

had permits for several fisheries in the past and was still qualified

for those fisheries, the permit or history could not be used to qualify

a different vessel for another limited entry fishery, and at the same

time qualify for a limited access multispecies permit.

Comment 11: One individual expressed support for the hook exemption

and requested adoption of a similar exemption for fish traps. The

commenter stated that both conserve the stock and fish habitat, and

reduce fuel consumption.

Response: A specific exemption for fish traps was not considered by

the Council for inclusion in the amendment. This comment is being

forwarded to the Council for possible inclusion of a fish trap

exemption in a future amendment.

Comment 12: One association supported the moratorium, but opposed

the issuance of new permits after only 3 years.

Response: After 3 years, the Council may adjust the criteria for

limited entry permits after taking into consideration the fishing

mortality goals and objectives of the amendment and conditions in the

fishery. This would be accomplished through the framework measures

contained in subpart C, which include opportunity for public comment.

Comment 13: One association objected to the requirement for a

vessel permit in Sec. 651.4(f)(1), which requires that the names and

addresses of shareholders holding more than 25% ownership be provided.

The commenter believed that this is an invasion of privacy, is not

required by other government agencies, and that the officers of a

corporation are a matter of record.

Response: By receiving this information, NMFS will be able to

determine who the true owner of a vessel is. It gives a more complete

picture that is not available when a vessel owner provides just the

corporation name. This is particularly important when determining who

is responsible if a violation of a regulation occurs. Without this

information, determining whether a particular owner is a repeat

violator would also be difficult. To seek this information from other

sources would require systematic searches of state records, requiring

NMFS to expend an extensive amount of time. It is not an unlawful

invasion of privacy because it is only required of vessel owners that

voluntarily submit themselves to the highly regulated industry of

fishing as a condition to obtaining the privilege to fish with a

Federal permit in Federal waters.

Operator Permits

Comment 14: One association commented that, in Sec. 651.5(d) of the

operator permit requirements, the requirement for passport photos to be

submitted with an application for an operator permit probably adds

several hours to the information burden calculation for each applicant

under this program, which is not accounted for in the analysis.

Response: The requirement is not for passport photos, but rather

passport-size photos, which makes the requirement substantially easier

to meet. Regardless, the analysis did take this into account and

allowed for 1 hour for response instead of 5 minutes, for example, as

specified for applying for a dealer permit. In determining burden

estimates, an average is taken.

Some individuals will already have a passport-size photo or have

easy access and their burden will be minimal. Other individuals may

have to travel to have this service performed. The burden is further

reduced by NMFS' intention to allow the operator permit to be valid for

multiple years, rather than just 1 year. In any event, the estimate of

time does not pose any time constraints on applicants. NMFS will

monitor whether the time estimate is correct.

Comment 15: The U.S. Coast Guard commented that the wording under

Sec. 651.5(c) in the operator permit requirements, which prohibits

operators who have had their operator permit suspended or revoked from

being on board a vessel, in any capacity, issued a Federal Fisheries

Permit is unenforceable unless all crew members are permitted.

Response: NMFS disagrees that the measure is unenforceable. The

intent of this measure is to improve compliance with the measures by

those who are most directly able to control the actions of the vessel

and crew. The number of operators having their permits suspended or

revoked is expected to be relatively few. Information on these

individuals, including their picture, can be distributed to the U.S.

Coast Guard and other enforcement officials and used during boardings.

To require all crew members to obtain a permit would impose too great

of an administrative burden on NMFS and crew members for which there

would be insufficient improvement in the ability to enforce such a

measure. Further, a change such as this is beyond the scope of

Amendment 5.

Comment 16: The U.S. Coast Guard commented that Sec. 651.5(d)

should require proof of U.S. citizenship to obtain an operator permit.

Response: The Magnuson Act requires that all vessels of the United

States that are larger than 5 net tons be documented by the U.S. Coast

Guard. Federal law requires that the masters of U.S. documented vessels

be U.S. citizens or U.S. nationals. As applied to vessels larger than 5

tons, the Coast Guard's suggestion is duplicative of existing law. As

applied to vessels smaller than 5 tons, the adoption of a U.S.

citizenship requirement would prevent aliens lawfully admitted to

permanent residence in the United States from continuing to serve as

masters of small vessels as they endeavor to qualify for U.S.

citizenship. For these reasons, NOAA has not adopted the U.S. Coast

Guard recommendation.

Comment 17: One association noted that the operator permit

requirements in Secs. 651.5 and 651.9 are inconsistent with the

amendment by failing to exempt recreational vessels.

Response: The intent was to require operator permits for operators

of vessels required to obtain federal fishery permits. The final rule

provides that if a vessel is exempted from the vessel permit

requirements, then that vessel's operator is exempted from the permit

requirement as well.

Comment 18: One association objected to the operator permit

condition under Sec. 651.5(c), which prohibits vessel operators from

working on board a vessel issued a Federal Fisheries Permit, in any

capacity, if the operator permit has been revoked or suspended.

The commenter further stated that guilt should be determined first,

and the penalty determined by the Courts, rather than the penalty being

agreed to first.

Response: This penalty would be assessed against a vessel operator

only if the vessel operator is determined to have been involved in a

major violation or is a significant repeat offender of Federal fishing

regulations. In all cases, the vessel operator will have an opportunity

for a hearing before an administrative law judge. Further, the vessel

operator will always have the option of appealing the determination by

the agency to a Federal court. The language gives notice to the vessel

operator that his/her right and privilege to operate and serve on a

federally-permitted fishing vessel is subject to the condition, and

that the right may be suspended or revoked in certain circumstances.

Without the possibility of suspending or revoking an operator's right

to serve in any capacity on a federally-permitted vessel, the purpose

of requiring operator's permits would be meaningless. The language also

puts the operator on notice that he/she will be responsible for his/her

actions and will not be able to move to another vessel, should a

suspension occur. It is consistent with a vessel permit suspension,

which takes the vessel out of the fishery during the time of

suspension.

Reporting and Recordkeeping

Comment 19: One association commented that, in Sec. 651.7(b)(1) of

the reporting requirements, the requirement to provide ``any other

information required by the Regional Director'' is overbroad, a

standardless delegation, and potentially unconstitutional.

Response: This requirement provides NMFS the flexibility to obtain

the information necessary for management, and is not open-ended, since

the Regional Director must demonstrate that any additional data

requested is necessary to manage the fishery.

Comment 20: One individual stated that the requirements for

recordkeeping and reporting are impracticable, of little or no use, and

cannot be enforced due to limited resources.

Response: The recordkeeping and reporting requirements are in

direct response to the inability to collect complete information under

the existing voluntary system and were supported by the fishing

industry. The Council's previous attempts at management measures were

stymied by the lack of complete information on the fleet. For some

areas or classes of vessels, there was little coverage or incomplete

coverage. The information collected from the reporting requirements is

necessary to, and will be used to monitor, the effects of the various

measures being implemented by this rule. Implementation of this rule,

along with recent amendments to the Summer Flounder and Atlantic Sea

Scallop Fishery Management Plans, will provide for a comprehensive

collection of fishery information coastwide. Its requirements can be

enforced because of the ability to verify reporting compliance due to

the dual requirement that dealers and vessels must report. These

requirements have been shown to be enforceable in other fisheries in

the Northeast.

Comment 21: One association commented that the reporting burden

estimates for the vessel logbook report (5 minutes), dealer logbook

report (2 minutes) and operator permit (1 hour) are unrealistic and

that they fail to take into account time to read instructions, search

existing data sources, gather and maintain the data needed, and

complete and review the requirement.

Response: Initially, the time to complete the requirements will be

longer than that estimated. As fishermen and dealers become familiar

with the report form and requirements, the time to complete and submit

the information will decrease. The reporting time estimates for both

the vessel and dealer may seem low, but the estimates take into account

that most of the information is being collected during the normal

course of business and in many cases for dealers, on the same form that

is being adopted for the reporting requirement. The report estimates

also take into account that the reporting burden will vary between

areas and fisheries. Moreover, as stated above, the time estimate does

not impose time constraints on those required to report. NMFS will

continue to monitor this activity to determine if adjustments to the

associated burden time need to be made. NMFS encourages vessel

operators and dealers to submit information on the time needed to

comply with these reports as such individuals gain experience actually

completing logbooks and permit forms.

Vessel Identification

Comment 22: The U.S. Coast Guard commented that the wording under

Sec. 651.8(a) regarding vessel identification should be reworded to

require the name on each side of the bow and the name of the vessel and

homeport at or near the stern. The U.S. Coast Guard further commented

that term ``if possible'' be deleted to eliminate ambiguity.

Response: NMFS has proposed consolidating requirements common to

Northeast fisheries in 50 CFR part 622, Northeast Region General

Fisheries Permit and Reporting Procedures (58 FR 53172, October 14,

1993). Where this comment is common to requirements in other fisheries,

it will be considered in the context of part 622. A final rule

implementing consolidated permitting and reporting procedures will be

issued after this final rule implementing Amendment 5 is published.

Prohibitions

Comment 23: One association commented that, regarding the

prohibition specified in Sec. 651.9(a)(6), it is unreasonable to expect

fishermen to enforce the FMP by demanding to see dealer licenses, given

the locus of market power in sale transactions, and considering

fishermen often have no direct contact with their dealer (i.e., fish

are picked up by truck). It would be impossible for fishermen to make

the legal conclusion that the permit is ``valid.''

Response: It is reasonable to expect that fishermen know to whom

they are selling their fish, because this information is necessary to

know from whom to expect payment. Further, since fishermen must provide

this information on the vessel logbook submitted to NMFS, vessel owners

will have to make an effort to identify to whom they are selling fish.

NMFS will make an effort to identify those permitted dealers purchasing

multispecies finfish so that the likelihood of a fishermen selling to

an unpermitted dealer will be substantially reduced. If fish are sold

to a truck, the truck does not need to be permitted if the truck is

used for transportation only. If the truck driver acts as a purchaser,

a dealer permit would be needed.

Comment 24: Two associations commented that observer requirements

in Sec. 651.0(a)(10) were not disclosed at public hearings. Requiring

provision of food, etc., is an uncompensated taking in violation of the

Constitution.

Response: Observer requirements have been part of the FMP since

implementation of Amendment 4 and were discussed by the Council in

public meetings. In Amendment 4, vessels participating in the Exempted

Fisheries Program were required to take a sea sampler if requested by

the Regional Director. In the version of Amendment 5 taken to public

hearing, observer requirements were included under the midwater trawl

exemption. Once the public hearings had concluded, the Council

discussed in a public meeting and added the measure to provide

consistency with a measure in Amendment 4 to the Fishery Management

Plan for Atlantic Sea Scallops. By including the requirement in the

proposed rule, the public has been given additional opportunity to

comment.

This provision is needed to supplement, rather than replace, the

existing Domestic Sea Sampler Program. Several times in the past, when

management actions were contemplated, the reaction by some fishermen

has been to deny sea sampler's requests to be on board vessels. This

seriously hampers NMFS' ability to collect discard, bycatch, and other

biological information and as a consequence, management actions were

based upon incomplete, though best available, information. This

provision will allow the Regional Director to require vessels to carry

an observer, if vessels refuse to take sea samplers.

A mandatory observer program is necessary for the management

program to be effective. A taking occurs if a regulation denies an

owner economically viable use of his/her property. The regulations do

not dispossess fishermen or limit the use of their property. It is not

equivalent to a seizure of their property or a restraint on entry and

use, and therefore does not constitute an unlawful taking.

Comment 25: One association commented that, in Sec. 651.9(b)(2)(i),

the requirement for having a certified, operational and functioning VTS

unit on board the vessel at all times will force fishermen to have at

least two of these units on board the vessel at all times, at a cost of

$14,000. No provision has been made to enable fishermen to keep

information confidential from third parties with receivers. The VTS has

evolved into a complicated, prohibitively expensive, intrusive

violation of basic constitutional principles and an end to itself

instead of providing NMFS with bare-bones requirements to make the

management program work simply and effectively.

Response: The requirement is to have a functioning VTS unit on

board the vessel. If the vessel owner believes that the VTS unit is not

reliable enough to provide the service required, the vessel owner may

decide to purchase another VTS unit. The minimum VTS performance

criteria were developed with the rigors of at-sea conditions in mind.

The approved VTS vendors have stated that their units meet these

specifications. Many of the units are in use on board fishing vessels

already and have been found to be reliable and able to withstand

weather at sea.

Fishermen subject to the VTS requirement are expected to purchase

the units directly from approved vendors. In making such a purchase,

the vessel owner should decide whether to include in the purchase

contract items such as confidentiality of information, position

integrity, etc. NMFS does require that a vessel owner applying for a

limited access permit must provide NMFS, the U.S. Coast Guard, and

their authorized officers or designees access to the vessel's DAS and

location data. All information from the VTS units forwarded to NMFS

will be considered data submitted pursuant to 16 U.S.C. 1853(a)(5),

which is subject to the confidentiality requirements of 16 U.S.C.

1853(d).

NMFS disagrees with the last comment. The VTS was developed to

address the need to monitor effectively basic vessel activities at

substantial savings to NMFS. The VTS allows enforcement resources to be

deployed where most effective while at the same time monitoring is

maintained throughout the fishery. The VTS also provides greater

efficiency for vessel operators and greater safety for at-sea

operations. Further, the requirement to carry a VTS unit is a condition

to participate in a highly regulated industry operating in federally

regulated waters. There is no compensable taking of private property

under the Fifth Amendment of the Constitution.

Comment 26: One association commented that, in Sec. 651.9(b)(10),

the trip notice provision is cast without a negative and thus would

make all fishermen violators.

Response: This has been corrected in the final rule.

Comment 27: One association commented that the provision in

Sec. 651.9(e)(13) is far too broad and makes no allowance for the

rigors of the sea, the vagaries of atmospheric transmission, etc. The

fisherman becomes a guarantor of perfect airwaves, which is an

impossible burden.

Response: The prohibition refers to a willful act, rather than that

which would occur through weather or other Acts of God. The burden will

be on NMFS to show that such a willful act has occurred.

Comment 28: An industry association commented that, in

Sec. 651.9(e)(31), the requirement that any fisherman must remove from

the water sink gillnets is directly in conflict with Magnuson Act

prohibitions on hauling or tampering with gear of others.

Response: The final rule has been changed to clarify that a sink

gillnet fisherman is required to remove only his or her own gear.

Comment 29: One association commented that in Sec. 651.9(e)(23),

recreational vessels are allowed to possess regulated species smaller

than the minimum size, which is contrary to Council intention.

Response: The language of Sec. 651.9(e)(23) allows vessels exempted

under Sec. 651.9(e)(1)(ii) to be exempted from the requirement. Vessels

under this exemption are those fishing in state waters exclusively,

without Federal permits, where these regulations are not applicable

because of the Councils' and the Secretary's limited authority under

the Magnuson Act to regulate fishing activities that occur only in

state waters. The Magnuson Act was enacted pursuant to the

Constitution's grant of authority to Congress to pass laws that

regulate interstate and foreign commerce. The Act authorizes the

Secretary to issue such regulations as are necessary and appropriate to

implement the Act. The Secretary has determined that keeping track of

the location of fishing vessels is essential to conserve and manage the

multispecies fishery. A VTS allows the Secretary to ascertain the

vessel's location in a cost-effective manner.

Regulated Mesh Areas

Comment 30: One association supported the finfish excluder device

requirement contained in Sec. 651.20(a)(3)(ii).

Response: The comment is noted and the measure has been approved.

Comment 31: One association commented that it supported the

increase in minimum mesh size to 6 inches (15.24 cm), but that the area

should also include Southern New England.

Response: The Council specified different minimum mesh sizes, by

area, based upon the different historical fishing patterns that occur

there. Prior to this amendment, much of the Southern New England area

was not subject to mesh restrictions. Amendment 5 imposes a minimum

mesh size restriction throughout the area, thereby providing

substantial protection for undersized, immature groundfish. In year 2,

the mesh size increases to 6-inch (15.24-cm) square mesh or 5\1/2\-inch

(13.97-cm) diamond mesh. Also included in the measures applicable to

the Southern New England Area is an area closure triggered when there

is an incoming year class of yellowtail flounder that reaches a certain

level of abundance as determined by the annual spring bottom trawl

survey conducted by NMFS. If further restrictions are necessary, the

Council may use the framework measures contained in subpart C to effect

changes.

Comment 32: The U.S. Coast Guard commented that the area defined in

Sec. 651.20(c) for the Southern New England Regulated Mesh Area (RMA)

and its allowance of more than one mesh on board overlaps the

boundaries of the Nantucket Lightship Closed Area. The U.S. Coast Guard

stated that this creates an enforcement policy that is inconsistent

with conservation goals. It recommended that the Southern New England

RMA be redrawn to exclude the Nantucket Lightship Closed Area from the

more than one mesh on board provision.

Response: The Nantucket Lightship Closed Area closes only when a

survey index indicates a strong incoming year class of yellowtail

flounder. When such a closure occurs, vessels are prohibited from

fishing in the area unless specifically exempted, and the gear types

exempted (lobster pot gear, surf clam/ocean quahog dredge gear, hook

and line) do not include gear subject to the gear stowage requirement.

It is not necessary, therefore, to redraw this area such as was done

for the Nantucket Lightship Regulated Mesh Area.

Comment 33: One association commented that it is inappropriate to

allow mid-trawlers year-round, unsupervised access to the Gulf of

Maine.

Response: Midwater trawlers are subject to a possession limit when

fishing with small mesh and are required to fish with the net off the

bottom. If NMFS believes that a problem is occurring with this fishery,

observers could be deployed to gather information. The vessel reporting

requirements will also aid in determining whether this gear is

appropriate for use in this area.

Comment 34: One association recommended that the Nantucket

Lightship Regulated Mesh Area be disapproved because the area allows

smaller mesh size in an area that abounds with haddock, cod and

yellowtail flounder.

Response: NMFS is also concerned about this area and about the

confusion that can result because of the differences between the

adjoining regulated mesh areas and this area. If this requirement were

disapproved, however, it would leave this area with no regulated mesh

size or one mesh on board requirement. NMFS is requesting the Council

reexamine this area and determine whether it is appropriate to allow

the smaller minimum mesh size, given the low stock abundance of

regulated species occurring there.

Closed Areas

Comment 35: One association commented that, in Sec. 651.21(b)(4),

the exemption allowing safe haven in the vicinity of Closed Area II,

required for vessel safety, is virtually unattainable. It depends on

the National Weather Service (NWS) identifying adverse conditions far

out at sea, posting warnings, and the operator being able to contact a

U.S. Coast Guard unit in the area. Unless this provision is rational,

it will cost lives in transit.

Response: The exemption was requested by fishermen at a meeting of

the Council. The criteria for the exemption were developed to ensure

that it could not be used to circumvent the regulations. The intent is

that when there is a legitimate need, because of bad weather, to seek

shelter in deeper water, vessels can enter the closed area. The best

criterion for vessels to know when this is allowed is the storm

postings of the NWS, which has offshore monitoring capabilities. NMFS

is actively discussing with NWS and the National Ocean Survey, the

possibility of using the VTS units to collect weather information for

offshore areas. If vessels cannot contact a U.S. Coast Guard unit in

the area, notice should be provided to a U.S. Coast Guard shoreside

facility. NMFS believes these measures are reasonable and adequate to

provide vessels a safe route during bad weather. This exemption will be

monitored and, if adjustments are needed, they can be made through the

framework measures in subpart C.

Effort Control Program

Comment 36: Six associations and eight individuals recommended that

the effort control measures be disapproved, citing that this type of

management will not achieve conservation because vessels will fish

longer, fish closer to shore, target high value species, and the

program will be almost impossible to administer and enforce.

Response: The Council chose effort reduction measures rather than

relying solely on indirect measures (minimum mesh size, minimum fish

size) or other direct measures (vessel or total quotas). In doing so,

it believed that the effort control measures would provide greater

assurance in achieving the Council objectives, would be less disruptive

to the supply of groundfish, and would provide flexibility to vessel

operators, thereby balancing the need to prevent overfishing with

socio-economic concerns of the fishing industry.

With declining fish stocks, fishermen are already making longer

trips with fewer crew members and with less time at the dock between

trips. There have already been complaints over the last few years of

larger vessels displacing small vessels by working inshore areas. The

combination of annual reduction of days at sea allowed, regulated

layover time at the dock, and target quotas is designed to meet

eventually the objectives of the amendment. It is recognized that there

will be adjustments by the fleet in the first few years. Eventually

these adjustments will be overcome by the measures resulting in

reductions in fishing mortality.

NMFS believes that the effort reduction program can be administered

and enforced. Tracking of days at sea can be accomplished shoreside

rather than at sea and the VTS and call-in systems will enhance this

effort. The VTS system will identify when vessels leave port, when they

return to port, which port and where they are at sea. The exemptions

for hook vessels, possession limit vessels and vessels 45 ft (13.7 m)

and less will substantially reduce the enforcement and monitoring

burden.

Comment 37: Six associations and eight individuals recommended that

the target quotas be disapproved.

Response: To determine how effective the effort reduction program

and other measures are at attaining interim fishing mortality goals and

to provide the industry and the public with a quantifiable objective,

the Council included target quotas based upon the major groundfish

stocks. The target quotas will be determined annually and, if exceeded,

the Council will adjust fishing mortality reduction measures to help

assure that it does not occur again. If the target quotas had been

disapproved, NMFS the Council would have had little information on

which to judge the success of individual measures for a given year, and

little justification for adjusting management measures in future years.

Exceeding a target quota does not result in any automatic regulatory

measure.

Comment 38: The Council and one association commented that the

layover day requirement specified in Sec. 651.22(c)(1)(ii) should

reflect the Council's intent that vessels need to move between docks

within port.

Response: In order to monitor effectively vessel DAS activity, it

is necessary for NMFS to be able to track vessel movement. NMFS intends

to allow some reasonable movement within port through enforcement

discretion, so long as it does not compromise the accurate monitoring

of vessel DAS.

Comment 39: One association commented that the provision in

Amendment 5 exempting vessels 45 ft (13.7 m) or less, from the effort

reduction program, should be changed back to 30 ft (9.1 m), because the

longer length allows for too much additional fishing effort.

Response: An exemption length of 45 ft (13.7 m) exempts 1,554 more

vessels than would an exemption length of 30 ft (9.1 m). Still, if the

45-ft (13.7 m) exemption was disapproved, there would have been no

exemption for smaller vessels from the effort control program. A lack

of an exemption from the effort control program for smaller vessels,

may have serious negative economic effects on fishermen operating those

vessels without sufficient commensurate benefits to the groundfish

stocks to justify the lack of such an exemption. The Council has been

asked to reexamine the 45-ft exemption, and its effects will be closely

monitored. If a change is necessary, it could be implemented through

the framework provisions of subpart C.

Minimum Fish Sizes

Comment 40: The U.S. Coast Guard commented that, in

Sec. 651.23(d)(i), the minimum fish sizes are only enforceable if the

whole fish can be measured. The exception allowing 25 lbs (11.3 kg) of

fillets less than the minimum size should be deleted since enforcement

officers cannot verify that the fillets originated from legal-size

fish.

Response: The 25 lbs (11.3 kg) of fillets allowed per person cannot

be offered or intended for sale, trade, or barter. While NMFS agrees

that it will be difficult to enforce this requirement, the small amount

of fillets allowed and the intended use of the fillets should have a

minimal impact on the conservation goals of the FMP. This exemption

allows the traditional fishing practice of crew members filleting fish

for personal use to continue. If this exemption poses a problem in the

future, it may be modified using the framework provisions of subpart C.

Flexible Area Action System

Comment 41: One association commented that the FAAS described in

Sec. 651.26, is an overbroad, standardless delegation in violation of

the Administrative Procedure Act and the Constitution.

Response: The Flexible Area Action System described in Sec. 651.26

is not a new provision, rather it was implemented through the approval

of Amendment 3 to the FMP. The proposed rule republished the entire

part and not just the provisions changed or added by Amendment 5. This

was done to aid the reader. The commenter is invited to review

responses to comments published at the time this section was

promulgated.

Monitoring Requirements

Comment 42: One association commented that the presumption in

Sec. 651.28(a)(4) is unreasonable because the vessel operator may not

know the violation is occurring and thus may fail to collect the

evidence to rebut the presumption. A vessel could run through its whole

allocation without knowing it, if a battery shorts out.

Response: The VTS unit typically displays a signal when the unit is

in communication with an overhead satellite. The vessel operator should

be able to determine readily if the unit is functioning or at least

enter into agreement with the VTS unit vendor that he/she be notified

when the unit is not functioning properly. If the unit is not

functioning properly, the vessel operator should respond accordingly

and try to correct the problem, and if not able to, gather the evidence

necessary.

Comment 43: One association commented that, in Sec. 651.28(a)(7),

the definition for tampering must except unknowing activity and such

actions as rigging the vessel, raising fishery cones, sailing into fog

banks, etc., all of which could affect signal or position accuracy.

Response: Adverse weather typically does not distort the

information provided by a VTS unit. This only occurs if the antenna is

disrupted or there is an occurrence of extreme weather. Tampering

implies a knowing violation. Enforcement discretion will be used in

determining violations and whether an action was willful or not.

Comment 44: Four VTS vendors commented that the requirement for

polling is not essential for vessel monitoring objectives.

Response: NMFS believes that the polling requirement is an integral

component of a monitoring system employing a VTS. Polling will enhance

NMFS ability to insure adequacy of its DAS monitoring requirements.

Moreover, the use of a VTS will not be limited to just DAS monitoring,

but will also be used for closed area and Hague Line surveillance, and

other enforcement concerns. Polling will allow NMFS to change the

frequency of location reporting in support of specific enforcement

operations. This could occur for a given area, individual vessels or

groups of vessels. Polling can also be beneficial to search and rescue

operations by pinpointing location, speed of drift, etc.

Comment 45: Four VTS vendors commented that the requirement that

the VTS provide two-way network communication between the vessel and

shore is not essential for vessel monitoring objectives. The commenters

stated that vessels are already equipped with radios, telephone, telex,

or facsimile equipment.

Response: NMFS believes that two-way communication is necessary.

Under Sec. 651.7(b)(1), vessel operators may choose to provide catch

information through the VTS unit. Under Sec. 651.29(a)(1), vessels will

use the VTS to notify NMFS that they are leaving on a trip that will

not involve a groundfish DAS. Allowing reporting such as noted above

through the VTS, greatly enhances NMFS' ability to receive information

on a timely basis, 24 hours a day. Radios and telephones require

someone to be present to receive the call. Telex and facsimile

equipment could provide the information, but at greater expense to NMFS

through having to input the data to another system. NMFS believes that

the two-way communication capabilities will allow VTS to be used for

more applications, once established. Consequently, NMFS is not changing

the specifications.

Days-at-Sea Notification

Comment 46: One association commented that, in Sec. 651.29 (a) and

(b), if the primary system fails or malfunctions and the Regional

Director fails to authorize the use of a call-in system, then vessels

are not allowed to fish. The Regional Director should be required, not

just permitted, to fill the gap.

Response: NMFS recognizes that without a VTS requirement, as

written in the proposed rule, vessels would be unable to fish. The

final rule has been revised so that initially a call-in system will be

required by vessels that will later be subject to VTS requirements when

such a system is available. Also, the final rule has been revised so

that the Regional Director must authorize a call-in system if a VTS is

later shown to be ineffective for monitoring DAS.

Comment 47: One association commented that, in Sec. 651.29(c) (2)

and (4), requiring a confirmation by the Regional Director renders the

call-in and fax-in useless on nights and weekends (when most trips

start or finish). If the Regional Director fails to confirm the end of

the trip, the counting of DAS will run without the fisherman being able

to stop it. An alternate to confirmation must be provided.

Response: Confirmation will be automatic through the call-in system

or FAX. Neither system will require the vessel operator or owner to be

limited to NMFS work hours. The systems have been designed to handle

multiple calls and will have sufficient backup such that any

inconvenience will be minimized.

Observer Requirements

Comment 48: One association commented that, in Sec. 651.31(c), the

requirements applying to an owner or operator regarding at-sea observer

coverage represents an unlawful taking, unless compensated.

Response: See response to Comment 24.

Comment 49: One association expressed concern about the cost to the

vessel of the observer requirements under Sec. 651.31, citing the

expense of liability insurance.

Response: As has been done for the past several years, NMFS will

continue to place voluntary sea samplers on board vessels. Whether it

is a voluntary sea sampler or a mandatory observer, NMFS will be

responsible for the salary, but the vessel will be responsible for

adequate accommodations and food. NMFS is not required to provide

insurance to the vessel owner regarding liability to the observer. If

such insurance is desired by the vessel owner, it will be the owner's

responsibility to provide such insurance coverage for the time the

observer is on the vessel.

Comment 50: One association commented that the allowance for an

observer to inspect and copy communication logs may be an invasion of

privacy or an unauthorized disclosure of proprietary information. The

requirement to inspect and copy should be restricted to information

pertaining to catch and related data.

Response: The final rule requires that only information relating to

the catch and related data be provided to the observer.

Sink Gillnet Requirements

Comment 51: One association stated that the amendment does not

provide consistent, targeted controls to reduce incidental harbor

porpoise mortality and recommended that time and area closures be

implemented.

Response: In anticipation of the harbor porpoise framework measure

being approved, the Council has been evaluating the feasibility of

time/area closures. The measure and implementing rule requiring all

gillnets to be out of the water, is intended to serve as the default

harbor porpoise mitigation of take measure until such time as another

is implemented. It was designed to meet harbor porpoise protection

objectives over 5 years. Under the framework measure, the Council will

be able to recommend time/area closures for implementation once they

are determined to be appropriate.

Comment 52: The Marine Mammal Commission commented that the monthly

period of time when sink gillnets are required to be removed from the

water should be 16 days per month in year 1, rather than 4 days per

month. The 16 days per month should be put into effect pending an

assessment of its effect on reducing the incidental take level and/or

development of alternative management measures.

Response: Once a fishery management plan or amendment has been

formally submitted by a Council, NMFS has authority to approve or

disapprove provisions, but has little authority to modify a provision.

To disapprove this measure would have eliminated all protection for

harbor porpoise and groundfish afforded by this measure, at least in

the short term. Indeed, the Biological Opinion prepared for the

amendment recommends an accelerated schedule, by initially going to the

year 2 schedule of 8 days a month in the first year. As stated

previously, the Council's evaluation of time/area closures is being

conducted with the goal of implementing such a measure under the

framework as soon as possible. If the Council recommends such a measure

and it is approved for implementation, the necessary protection may be

provided.

Comment 53: The Marine Mammal Commission commented that the

proposed critical habitat areas for right whales (Cape Cod Bay and

Great South Channel) should be adopted as closed areas, instead of the

area designated as Closed Area I.

Response: Much of the proposed critical habitat is already included

in Closed Area I and the closure occurs at a time when right whales are

present in the area. The Biological Opinion prepared for this amendment

determined that Cape Cod Bay and the Great South Channel will not be

adversely affected by the Amendment 5 measures. If the proposed

critical habitat for right whales becomes final, it may be appropriate

at that time to consider such a change under the framework provisions,

in subpart C. The exception to this would be Cape Cod Bay, which is

under the Commonwealth of Massachusetts' jurisdiction.

Comment 54: The Marine Mammal Commission recommended that the

exemption for gillnets from the effort control measures be disapproved.

Response: The Council intends for the exemption to be in place only

until such time as it can determine the impact of the harbor porpoise

take reduction measures on fishing mortality. Rather than try to

reconcile the two measures, the Council chose to concentrate its

efforts on reduction of harbor porpoise mortality. It is likely that

these measures will reduce fishing mortality. Reducing the time when

gillnets are allowed in the water also reduces the time to catch

groundfish and take harbor porpoise incidentally. A reduction in time

will reduce fishing effort.

Framework Specifications

Comment 55: One individual stated that the framework measures are

illegal in that they override and assume the functions of NMFS. The

framework measures will not provide the quick reaction needed to

conserve small fish.

Response: The framework measures are consistent with the Magnuson

Act and other applicable law; NMFS authority is not diminished by this

measure or the Council. Measures proposed by the Council must be

analyzed and are subject to public comment. Once the Council recommends

measures, NMFS will make a determination on the appropriateness of the

measures with regard to the Magnuson Act and other applicable law.

The framework measure is not specifically designed to preserve

concentrations of small fish. Other permanent measures, such as the

increase in minimum mesh size, the Stellwagen Bank and Jeffreys Ledge

juvenile protection areas, Nantucket Lightship Closed Area and the

Flexible Area Action System are designed to provide protection to

juvenile fish. If other areas are determined to need protection or the

timing of protection needs to be changed, the framework measure can be

used to accomplish this.

Comment 56: One association expressed concern that the amendment's

measures may be insufficient to end overfishing and rebuild depleted

fish stocks. The commenter expressed hope that the framework measure of

subpart C would be followed and that it would allow for sufficient

adjustments, if necessary.

Response: NMFS is concerned about the continued decline of the

stocks and that it may be necessary to take further action through the

framework measure. NMFS, in approving the amendment, has sent the

Council a letter describing this concern and stating NMFS' expectation

that the framework provisions will be used to meet the goals and

objectives of the Amendment.

Other Comments

Comment 57: One individual raised several questions about the

process by which the proposed rule was promulgated, with regard to the

submitted amendment and the role of the Council and NMFS.

Response: The Magnuson Act, section 302(h), specifies the functions

of Regional Fishery Management Councils. One of these functions is to

prepare and submit to the Secretary fishery management plans and

amendments for those fisheries that require conservation and management

within its geographical area of authority. Under section 303(c), the

Magnuson Act specifies that ``proposed regulations which the Council

deems necessary and appropriate for purposes of carrying out a plan or

amendment to a plan shall be submitted to the Secretary simultaneously

with the plan or amendment for action by the Secretary under sections

304 and 305.'' The Secretary is then responsible for making any changes

necessary for implementation and publishing the proposed regulations.

Thus, the Council is responsible for proposing those measures necessary

for the conservation and management of the resource. If what a Council

proposes is consistent with the Magnuson Act and other applicable law,

the Secretary is responsible for the approval and implementation of the

proposed measures.

Comment 58: One individual disputed the statement in the

Supplementary Information section of the preamble of the proposed rule,

that ``the FMP has been in effect since 1986, and has been amended four

times * * *'' The commenter was not aware of any evidence that the FMP

had been approved or accepted by the Secretary prior to final

rulemaking.

Response: On August 20, 1986, an interim rule (51 FR 29642) was

issued, which indicated that the Secretary had partially disapproved

the FMP and that the remaining approved measures were implemented for a

period ending on September 30, 1987. On September 17, 1987, a final

rule (52 FR 35093) was published that implemented Amendment 1, which

responded to the deficiencies of the FMP. The approval of Amendment 1

was not conditional and its measures along with the approved FMP

measures remained in effect until amended by Amendment 2 (54 FR 4798,

January 31, 1989), Amendment 3 (54 FR 52803, December 22, 1989),

Amendment 4 (56 FR 24724, May 31, 1991) and now, Amendment 5.

With regard to Amendment 5, the Council, with assistance from NMFS,

U.S. Coast Guard, state fishery agencies, academia, and the Mid-

Atlantic Fishery Management Council, prepared the amendment and other

supporting documents. NMFS prepared the proposed rule, which was

reviewed by the Council for consistency with the amendment.

Other comments were received related to approval of the amendment

or other concerns, rather than on the proposed rule. These comments

included: Comments on the adequacy of the analysis performed by the

Council, recommendations for emergency action on haddock, additional

measures for yellowtail flounder, recommendations on the proposed

listing of harbor porpoise under the Endangered Species Act and action

under Marine Mammal Protection Act, recommendations for increased

observer coverage under the Marine Mammal Protection Act,

reauthorization of the Magnuson Act, the relationship between the

Magnuson Act and the Administrative Procedure Act. All comments

received were considered in the decision to approve the amendment.

Changes From the Proposed Rule

In Sec. 651.2, in the definition for a ``combination vessel'' the

phrase ``and the Atlantic Sea Scallop Fishery Management Plan'' was

removed to make it clear that qualification for scallop DAS is not

required under this part.

In Sec. 651.2, the definition for ``DAS (Day(s)-at-sea)'' was

modified to clarify when a DAS occurs, and a definition for ``out of

the multispecies fishery or DAS program'' was added to distinguish

between when a vessel is subject to DAS and when it is not.

In Sec. 651.2, the definition for ``Dealer'' was modified to

include the phrase ``issued a valid Federal vessel permit under this

part'' to clarify that dealers are required to have a permit if they

purchase from vessels issued a Federal multispecies permit.

In Sec. 651.2, the phrase ``declared out of the multispecies

fishery'' was replaced with the phrase ``out of the multispecies

fishery or DAS program'' to reflect more accurately the requirements of

Sec. 651.22.

In Sec. 651.2, the definition for ``scallop dredge vessel'' was

made consistent with the regulatory requirements by adding a phrase to

clarify that a scallop dredge vessel must have been issued or applied

for a limited access scallop permit.

In Sec. 651.4, a phrase was added to the introductory text to

explain the changes made to the applicability date of this requirement.

In Sec. 651.4, the narrative within the introductory text was

modified by adding the word ``valid'' before the types of permits

listed, to provide further clarification.

In Secs. 651.4, 651.5 and 651.6, several editorial changes were

made to provide consistency between the administrative requirements

contained in these sections and similar sections contained in 50 CFR

part 650.

In Sec. 651.4(a)(1)(i)(B), the phrase ``on or prior to'' was

replaced with ``as of'' to reflect the language in Amendment 5 and to

clarify the requirement.

In Sec. 651.4, paragraph (a)(1)(i)(B) was modified by adding the

word ``written'' to clarify how this requirement can be met.

In Sec. 651.4, paragraph (a)(3) was modified by adding the word

``written'' to clarify how this requirement can be met.

In Sec. 651.4(a)(4)(ii), the sentence ``For undocumented vessels,

net tonnage does not apply'' was added to clarify further the

requirements for replacement vessels.

In Sec. 651.4(f)(2)(iii), the references to 1994 and 1995 were

removed to clarify that this election must be on the permit application

in all years.

Section 651.4(f)(2)(v) was rewritten to clarify options for

movement between the non-DAS program permit categories.

Section 651.5(a) was modified so that a vessel operator need only

carry the operator permit while on board the vessel rather than in

possession at all times.

Section 651.5(c) was modified to add the sentence ``Further, such

operators must agree as a condition of this permit that if the permit

is suspended or revoked pursuant to 15 CFR part 904, the operator

cannot be on board any fishing vessel issued a Federal Fisheries Permit

or any vessel subject to Federal fishing regulations while the vessel

is at sea or engaged in offloading.'' This sentence was included under

Sec. 651.5(n) in the proposed rule and is repeated in this section in

the final rule to increase awareness of this provision.

Section 651.9(b)(10) was modified to clarify what act was actually

prohibited.

In Sec. 651.9(c), the phrase ``while the vessel, and persons on the

vessel, are in possession of or landing more than 500 lbs (226.8 kg)

of, or fishing for regulated species'' was added to clarify this

requirement.

Section 651.9(e)(2)(ii) was divided into paragraphs (e)(2)(ii) and

(e)(2)(iii) to clarify the prohibitions.

In Sec. 651.20, paragraphs (a)(2), (b)(2), (c)(2) and (d)(2) have

been corrected to cross reference Sec. 651.20 (e) and (f), instead of

Sec. 651.20 (f) and (g).

In Sec. 651.20, paragraphs (a)(3)(i), (a)(4)(i)(A), (c)(3)(i),

(c)(3)(ii), (d)(3)(i), (d)(3)(ii), (e)(1)(iv), (f)(4), the phrase ``the

possession limit of regulated species specified under Sec. 651.27(a)''

is replaced with ``500 lbs (226.8 kg) of regulated species.'' This is

because Sec. 651.27(a) is not implemented until May 1, 1994, and the

bycatch requirement for the small mesh fisheries must be implemented on

March 1, 1994.

In Sec. 651.22, paragraph (b)(3)(iv), the requirement under

Sec. 651.22(c)(1)(i)(E) was added for consistency between an identical

requirement between the Fleet DAS and Individual DAS programs.

Section 651.22(d)(1)(i)(C) was revised to clarify what is required

to verify the length of a vessel.

Section 651.22(d)(1)(ii) was modified with the addition of the

phrase ``excepts gillnets and gear not intended to fish for

multispecies finfish such as lobster'', to provide consistency with the

Council's intent for this requirement.

Section 651.22(d)(2) was replaced with paragraphs (2)(i) through

(iii) to clarify that sink gillnet vessels greater than 45 ft (13.7 m)

in length are exempt from the DAS effort reduction program when using

sink gillnet gear exclusively, unless further effort reduction measures

are implemented; that when these vessels use other gear and intend to

fish for, possess or land, or do possess or land more than 500 lbs.

(226.9 kg) of regulated species, they shall be subject to the DAS

effort reduction program; and that sink gillnet vessels less than 45 ft

(13.7 m) in length are exempt from the DAS effort reduction program

unless further effort reduction measures are implemented. These changes

clarify what sink gillnet vessels are subject to with regard to the

effort reduction program and under which circumstances sink gillnet

vessels are exempted from its requirements.

In Sec. 651.22, paragraph (d)(2)(ii), a sentence was added to

clarify the requirements for vessel fishing in both the sink gillnet

fishery and a DAS program.

Section 651.22,(d)(3) was modified by adding the phrase ``except

for combination vessels'' to clarify that combination vessels are not

subject to this requirement.

In Sec. 651.27, paragraph (a)(1), the phrase ``vessels issued hook-

gear-only permits that are fishing with gear other than hook gear, sink

gillnet vessels greater than 45 ft (13.7 m) in length that are fishing

with gear other than gillnet gear'' was added to further clarify when

vessels using this type of gear are subject to the possession limit.

In Sec. 651.28, paragraph (a)(1), the heading and all subsequent

references have been revised from ``certification'' to ``approval'' to

better define the process by which will NMFS select VTS vendors.

In Sec. 651.28(a)(4), the phrase ``not participating in the

multispecies fishery'' was replaced by ``declared out of the

multispecies finfish fishery'' to provide consistency with other

sections of the regulations.

Section 651.28(c)(3) has been revised to read, ``If the owner of a

sink gillnet vessel greater than 45 ft (13.7 m) in length intends to

fish for regulated multispecies with gear other than sink gillnet gear

on a fishing trip'' in order to clarify when a sink gillnet vessel

owner is required to provide notice.

In Sec. 651.29, the information requirements under paragraphs

(c)(1) and (c)(2) were modified such that the caller's telephone number

is required, instead of the caller's address, in order to facilitate

administration of this requirement.

In Sec. 651.31(c)(5), the phrase ``the vessel's log, communications

logs,'' was deleted because it was determined to be inappropriate.

In Sec. 651.32(a)(1)(i), the phrase ``Vessel owners using sink

gillnet gear must remove all of their sink gillnet gear'' was added to

clarify that vessel owners must remove only their own sink gillnet

gear.

In Sec. 651.32(a)(2), the phrase ``upon issuance of the permit''

was deleted to allow the Regional Director more flexibility in form and

timing of notification.

In Sec. 651.32, paragraph (c) was corrected to be paragraph (b).

In Secs. 651.4 introductory text, 651.4(a), 651.4(b), 651.4(c),

651.9(e)(2) introductory text, 651.22(a), 651.22(b)(1)(i),

651.22(c)(1), 651.22(d)(1)(i), 651.22(e), 651.29(a)(1), 651.29(b),

introductory text, and 651.33 introductory text, wording was added to

implement these requirements on May 1, 1994, and to clarify that

vessels may fish using a valid 1993 multispecies vessel permit until

that time.

In Secs. 651.5(a), 651.9(a) introductory text, 651.9(e)(1)(i),

651.9(e)(6), 651.9(e)(8), 651.9(e)(9), 651.20 introductory text,

651.20(a)(2), 651.20(a)(3)(ii), and 651.20(c)(4), revisions were made

to clarify that all permit holders under this part are subject to these

requirements.

Classification

The Council prepared an FSEIS for Amendment 5, which was filed by

the Environmental Protection Agency with the Office of the Federal

Register. The Assistant Administrator for Fisheries, NOAA, (AA)

determined, upon review of the FSEIS and public comments that the

preferred alternative of the Amendment is environmentally preferable to

the status quo. The FSEIS demonstrates that the preferred alternative

contains management measures to eliminate the overfished condition of

stocks of groundfish, especially haddock, cod, and yellowtail flounder;

provides economic and social benefits to the fishery in the long term;

and should provide better balance in the ecosystem in terms of the

groundfish resources.

NMFS notified the Small Business Administration during the proposed

rule stage that this action may have significant effects on a

substantial number of small entities based upon an IRFA prepared by the

Council. The IRFA now constitutes an FRFA based on public comments. The

FRFA determines that most active vessels that participate in the

fishery are considered small entities according to the criteria

established by the Small Business Administration. Amendment 5 excludes

the smaller vessels (i.e., boats 45 ft (13.7 m) and smaller in length)

from effort reduction measures. The regulations would probably not have

a significant impact on these vessels, which constitute about 64

percent of the qualified vessels and which landed approximately 15

percent of the groundfish in 1991. However, the proposed reduction in

effort may have considerable impacts on those vessels that are still

considered small entities which are longer than 45 ft (13.7 m). These

small entities constitute 36 percent of the qualified vessels, and

landed approximately 85 percent of the groundfish in 1991, and are

expected to incur significant short-term losses in revenue that will be

offset by long-term gains and greater stability in the fishery.

The rule contains eight new collection-of-information requirements

and revises seven existing requirements subject to the Paperwork

Reduction Act. These collection-of-information requirements have been

approved by the Office of Management and Budget (OMB). Nevertheless,

public comments are invited on the burden-hour estimates for the

collection-of-information requirements listed below.

The new reporting requirements are:

1. Dealer permits, (Sec. 651.6--OMB Approval #0648-0202) (5

minutes/response);

2. Operator permits, (Sec. 651.5--OMB Approval #0648-0202) (1 hour/

response);

3. Notice requirements for observer deployment, (Sec. 651.31--OMB

Approval #0648-0202) (2 minutes/response);

4. Proof of installation of vessel tracking system,

(Sec. 651.4(f)(vi)--OMB Approval #0648-0202) (2 minutes/response);

5. Automated vessel tracking system, (Sec. 651.29(a)--OMB Approval

#0648-0202) (0 minutes/response);

6. Vessel call-in or electronic card reporting requirement,

(Sec. 651.29(b)--OMB Approval #0648-0202) (2 minutes/response);

7. Notice of entry/exit of Closed Area II due to hazardous weather,

(Sec. 651.21(b)(iii)(D)--OMB Approval #0648-0202) (2 minutes/response);

8. Vessel logbooks, (Sec. 651.7(b)--OMB Approval #0648-0212) (5

minutes/response).

Revisions to the existing requirements are:

1. Three new vessel permit categories (limited access, hook-gear-

only permits, possession-limit-only permits) (Sec. 651.4(a), (b), and

(c)--OMB Approval #0648-0202) (no increase in burden above that

currently associated with vessel permits);

2. Limited access permit denial appeals, (Sec. 651.4(a)(8)--OMB

Approval #0648-0202) (0.5 hours/response);

3. Limited access permits, days at sea appeals (Sec. 651.22(a)(6)--

OMB Approval #0648-0202) (2 hours/response);

4. The Cultivator Shoals Exemption Program (Sec. 651.20(a)(4)(i)--

OMB Approval #0648-0202) (2 minutes/response);

5. The Midwater Trawl Exemption Program (Sec. 651.20(e)--OMB

Approval #0648-0202) (2 minutes/response);

6. Dealer purchase reports (Sec. 651.7(a)--OMB Approval #0648-0229)

(2 minutes/response);

7. Annual processed products reports (Sec. 651.7(a)(2)--OMB

Approval #0648-0018, will be mandatory (2 minutes/ response).

Send comments regarding these burden estimates or any other aspect

of these collections-of-information, including suggestions for reducing

the burdens, to Richard Roe, and to the Office of Information and

Regulatory Affairs, Office of Management and Budget (see ADDRESSES).

This rule is not subject to review under E.O. 12866.

The AA has determined that there is good cause to waive the 30-day

delay in effective date normally required by section 553(d) of the

Administrative Procedure Act because many of the provisions of this

rule must be effective by March 1, 1994 to begin eliminating the

overfished condition of some groundfish stocks. Some provisions of the

rule do not become applicable by their own terms until dates after

March 1, 1994, such as permit requirements described in Sec. 651.4, and

requirements for vessels having limited access permits which will be

fishing in the individual DAS program and combination vessels to use a

VTS as described in Sec. 651.29. A letter sent by the Regional Director

to all permit holders advises that the call-in notification procedure

described in Sec. 651.29 shall apply to all vessels holding limited

access permits until a VTS system is operational, sometime after 6

months after March 1, at which time vessels fishing under the

individual DAS program and combination vessel.

List of Subjects in 50 CFR Part 651

Fisheries, Reporting and recordkeeping requirements.

Dated: February 24, 1994.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 651 is

revised; with Sec. 651.9(a)(11) and (12), Sec. 651.9(e) (33) and (34),

and Sec. 651.27(b) expiring at 2400 hours, April 2, 1994; to read as

follows:

PART 651--NORTHEAST MULTISPECIES FISHERY

Subpart A--General Provisions

Sec.

651.1 Purpose and scope.

651.2 Definitions.

651.3 Relation to other laws.

651.4 Vessel permits.

651.5 Operator permits.

651.6 Dealer permits.

651.7 Recordkeeping and reporting.

651.8 Vessel identification.

651.9 Prohibitions.

651.10 Facilitation of enforcement.

651.11 Penalties.

Subpart B--Management Measures

651.20 Regulated mesh areas and restrictions on gear and methods of

fishing.

651.21 Closed areas.

651.22 Effort-control program for limited access vessels.

651.23 Minimum fish size.

651.24 Experimental fishing.

651.25 Gear-marking requirements.

651.26 Flexible Area Action System.

651.27 Possession limits.

651.28 Monitoring requirements.

651.29 DAS notification program.

651.30 Transfer-at-sea.

651.31 At-sea observer coverage.

651.32 Sink gillnet requirements to reduce harbor porpoise takes.

651.33 Hook-gear-only vessel requirements.

Subpart C--Framework Adjustments to Management Measures

651.40 Framework specifications.

Figure 1 to Part 651--Regulated mesh areas.

Figure 2 to Part 651--Nordmore grate.

Figure 3 to Part 651--Closed areas.

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

Subpart A--General Provisions

Sec. 651.1 Purpose and scope.

This part implements the Fishery Management Plan for the Northeast

Multispecies Fishery (FMP), as amended by the New England Fishery

Management Council in consultation with the Mid-Atlantic Fishery

Management Council. These regulations govern the conservation and

management of multispecies finfish.

Sec. 651.2 Definitions.

In addition to the definitions in the Magnuson Act and in

Sec. 620.2 of this chapter, the terms used in this part have the

following meanings:

Atlantic sea scallop or scallop means the species Placopecten

magellanicus throughout its range.

Bottom-tending gillnet or sink gillnet means any gillnet, anchored

or otherwise, that is designed to be, capable of being, or is fished on

or near the bottom in the lower third of the water column.

Butterfish means Peprilus triacanthus.

Chair means the Chair of the Multispecies (Groundfish) Oversight

Committee of the Council.

Charter and party boats means vessels carrying recreational fishing

persons or parties for a per capita fee or for a charter fee.

Codend means the terminal section of a trawl net in which captured

fish may accumulate.

COLREGS Demarcation Lines means the lines of demarcation

delineating those waters upon which mariners must comply with the

International Regulations for Preventing Collisions at Sea, 1972 (33

CFR part 80), and those waters upon which mariners shall comply with

the Inland Navigation Rules.

Combination vessel means a vessel that has fished in any one

calendar year with scallop dredge gear and otter trawl gear during the

period 1988 through 1990, and that is eligible for an allocation of DAS

under the FMP and has applied for or been issued a Federal limited

access scallop permit.

Committee means the Multispecies (Groundfish) Oversight Committee

of the Council.

Council means the New England Fishery Management Council.

DAS (Day(s)-at-sea) means the 24-hour periods of time during which

a fishing vessel is absent from port for purposes of multispecies

finfish fishing in which the vessel intends to possess or possesses

more than the possession limit of regulated multispecies.

Dealer means any person who receives multispecies finfish for a

commercial purpose from the owner or operator of a vessel issued a

valid Federal vessel permit under this part, other than exclusively for

transport on land.

Dredge or dredge gear means gear consisting of a mouth frame

attached to a holding bag constructed of metal rings, or any other

modification to this design, that can be or is used in the harvest of

Atlantic sea scallops.

Fishery Management Plan (FMP) means the Fishery Management Plan for

Northeast Multispecies Fishery, as amended.

Gillnet means fishing gear comprised of a net hung from a float-

line, with a lead-line on the bottom, such that it is designed to be or

is configured vertically in the water column to entangle passing fish.

Gross registered tonnage means the gross tonnage specified on the

U.S. Coast Guard documentation.

Harbor porpoise means Phocoena phocoena.

Harbor Porpoise Review Team (HPRT) means a team of scientific and

technical experts appointed by the Council to review, analyze, and

propose harbor porpoise take mitigation alternatives.

Herring means Atlantic herring, Clupea harengus harengus, or

blueback herring, Alosa aestivalis.

Hook gear means fishing gear that is comprised of a hook or hooks

attached to a line and includes, but is not limited to, longline,

setline, jigs, troll line, rod and reel, and line trawl.

Land means to enter port with fish on board, to begin offloading

fish, or to offload fish.

Longline gear means fishing gear that is or is designed to be set

horizontally, either anchored, floating, or attached to a vessel, and

that consists of a main or ground line with three or more gangions and

hooks.

Mackerel means Atlantic mackerel, Scomber scombrus.

Menhaden means Atlantic menhaden, Brevoortia tyrannus.

Midwater trawl gear means trawl gear that is designed to fish for,

capable of fishing for, or is being used to fish for pelagic species,

no portion of which is designed to be or is operated in contact with

the bottom at any time.

Multispecies finfish or finfish means the following finfish:

Gadus morhua--Atlantic cod.

Glyptocephalus cynoglossus--witch flounder.

Hippoglossoides platessoides--American plaice.

Limanda ferruginea--yellowtail flounder.

Macrozoarces americanus--ocean pout.

Melanogrammus aeglefinus--haddock.

Merluccius bilinearis--silver hake.

Pollachius virens--pollock.

Pseudopleuronectes americanus--winter flounder.

Scophthalmus aquosus--windowpane flounder.

Sebastes marinus--redfish.

Urophycis chuss--red hake.

Urophycis tenuis--white hake.

NEFSC means the Northeast Fisheries Science Center of NMFS, NOAA.

Northern shrimp means Pandalus borealis.

Offload means to begin to remove, to remove, to pass over the rail,

or otherwise take away fish from any vessel.

Operator means the master, captain, or other individual on board a

fishing vessel and in charge of that vessel's operations.

Out of the multispecies fishery or DAS program means the period of

time during which a vessel is absent from port for purposes of fishing

in which the vessel possesses no more than the possession limit of

regulated species.

Pair trawl or pair trawling means to tow a single net between two

vessels for the purpose of, or that is capable of, catching

multispecies finfish.

Postmark means independently verifiable evidence of date of

mailing, such as U.S. Postal Service postmark, United Parcel Service

(U.P.S.) or other private carrier postmark, certified mail receipt,

overnight mail receipt, or receipt received upon hand delivery to an

authorized representative of NMFS.

Purse seine gear means an encircling net with floats on the top

edge, weights and a purse line on the bottom edge, and associated gear,

or any net designed to be, or capable of being, used in such fashion.

Recreational fishing means fishing that is not intended to, nor

does it result, in the barter, trade, or sale of fish.

Recreational fishing vessel means any vessel from which no fishing

other than recreational fishing is conducted. Charter and party boats

are not considered recreational fishing vessels.

Regional Director means the Director, Northeast Region, NMFS, 1

Blackburn Drive, Gloucester, MA 01930-2298, or a designee.

Regulated species means the subset of multispecies finfish that

includes Atlantic cod, witch flounder, American plaice, yellowtail

flounder, haddock, pollock, winter flounder, windowpane flounder,

redfish, and white hake.

Reporting month means the period of time beginning at 0001 hours

local time on the first day of each calendar month and ending at 2400

hours local time on the last day of each calendar month.

Reporting week means the period of time beginning at 0001 hours

local time on Sunday and ending at 2400 hours local time the following

Saturday.

Re-rig or re-rigged means physical alteration of the vessel or its

gear in order to transform the vessel into one capable of fishing

commercially for multispecies finfish.

Rigged hooks means hooks that are baited, or only need to be

baited, in order to be fished. Unsecured, unbaited hooks and gangions

are not considered to be rigged.

Scallop dredge vessel means any fishing vessel, other than a

combination vessel, that uses or is equipped to use dredge gear, and

that has been issued or has applied for a Federal limited access

scallop permit.

Squid means Loligo pealei or Illex illecebrosus.

Standard box means a box, typically constructed of wax-saturated

cardboard or wood, designed to hold 125 pounds (56.6 kg) of fish plus

ice, and that has a volume of not more than 5,100 cubic inches (2.95

cu. ft or 83.57 cm\3\).

Standard tote means a box typically constructed of plastic,

designed to hold 100 pounds (45.3 kg) of fish plus ice, and that has a

liquid capacity of 70 liters, or a volume of not more than 4320 cubic

inches (2.5 cubic feet or 70.79 cubic cm\3\).

Transfer means to begin to remove, to pass over the rail, or

otherwise take away fish from any vessel and move them to another

conveyance.

Trip is the period of time during which a fishing vessel is absent

from port, beginning when the vessel leaves port and ending when the

vessel returns to port.

Under agreement for construction or reconstruction means that the

keel has been laid and that there is a written agreement to construct a

fishing vessel.

Vessel Tracking System (VTS) means a vessel tracking system as set

forth in Sec. 651.28(a) and approved by NMFS for use by multispecies

finfish vessels as required by this part.

VTS unit means a device installed on board a vessel used for vessel

tracking and transmitting the tracked position as required by this

part.

Whiting means Merluccius bilinearis.

Sec. 651.3 Relation to other laws.

(a) The relation of this part to other laws is set forth in

Sec. 620.3 of this chapter and paragraphs (b), through (e) of this

section.

(b) Additional regulations governing domestic fishing for squid,

mackerel, and butterfish, which are affected by this part, are found at

50 CFR part 655.

(c) Additional regulations governing domestic fishing for summer

flounder, which are affected by this part, are found at 50 CFR part

625.

(d) Additional regulations governing domestic fishing for Atlantic

sea scallops, which are affected by this part, are found at 50 CFR part

650.

(e) Nothing in these regulations supersedes more restrictive state

management measures for multispecies finfish.

Sec. 651.4 Vessel permits.

Beginning on May 1, 1994, any vessel of the United States that

fishes for, possesses, or lands multispecies finfish, except vessels

that fish for multispecies finfish exclusively in state waters, and

recreational fishing vessels, must have been issued and carry on board

an authorizing letter issued under paragraph (a)(8)(v) of this section,

a valid limited access multispecies permit, a valid hook-gear-only

permit, or a valid possession-limit-only permit issued under this

section. Until May 1, 1994, vessels that have been issued 1993 Federal

multispecies permits, not otherwise subject to permit sanctions due to

enforcement proceedings, may fish for, possess, or land multispecies

finfish in or from the EEZ. Any other vessel of the United States may

obtain an interim letter of authorization to fish for, possess, or land

multispecies finfish until May 1, 1994, by submitting a 1993 permit

application.

(a) Limited access multispecies permits. Beginning on May 1, 1994,

any vessel of the United States that possesses or lands more than the

possession limit of regulated species specified under Sec. 651.27(a),

except vessels fishing with fewer than 4,500 hooks that have been

issued a hook-gear-only permit as specified in paragraph (b) of this

section, vessels fishing for regulated species exclusively in state

waters, and recreational fishing vessels, must have been issued and

carry on board a valid Federal limited access multispecies permit, or

an authorizing letter issued under paragraph (a)(8)(v) of this section.

Until May 1, 1994, vessels that have been issued 1993 Federal

multispecies permits, not otherwise subject to permit sanctions due to

enforcement proceedings, may fish for, possess, or land multispecies

finfish in or from the EEZ. Any other vessel of the United States may

obtain an interim letter of authorization to fish for, possess, or land

multispecies finfish until May 1, 1994, by submitting a 1993 permit

application. To qualify for a limited access multispecies permit, a

vessel must meet the following criteria, as applicable:

(1) Eligibility in 1994. (i) To be eligible to obtain a limited

access multispecies permit for 1994, a vessel must meet one of the

following criteria:

(A) The vessel had been issued a Federal multispecies permit as of

February 21, 1991, or renewed a Federal multispecies permit in 1991

that was issued before February 21, 1991, and the vessel landed

multispecies finfish on at least one trip completed between January 1,

1990, and February 21, 1991, inclusive; or

(B) The vessel was under written agreement for construction or re-

rigging, or was under written contract for purchase as of February 21,

1991, and the vessel was issued a Federal multispecies permit and

landed multispecies finfish on at least one trip between February 21,

1991, and February 21, 1992; or

(C) The vessel is replacing a vessel that meets any of the criteria

set forth in paragraphs (a)(1)(i) (A) or (B) of this section, and the

vessel meets the criteria described in paragraph (a)(4) of this

section.

(ii) No more than one vessel may qualify, at any one time, for a

limited access multispecies permit based on that or another vessel's

fishing and permit history, unless authorized by the Regional Director.

If more than one vessel owner claims eligibility for a limited access

multispecies permit, based on one vessel's fishing and permit history,

the Regional Director shall determine who is entitled to qualify for

the limited access multispecies permit and the DAS allocation according

to paragraph (a)(3) of this section.

(iii) A limited access multispecies permit for 1994 will not be

issued unless an application for such permit is received by the

Regional Director on or before December 31, 1994.

(2) Eligibility in 1995 and thereafter. To be eligible to renew or

apply for a limited access multispecies permit after 1994, a vessel

must have been issued a limited access multispecies permit for the

preceding year, or the vessel must be replacing a vessel that had been

issued a limited access multispecies permit for the preceding year,

and, if applicable, the vessel must meet the criteria set forth in

paragraph (a)(4) of this section. If more than one vessel owner claims

eligibility to apply for a limited access multispecies permit based on

one vessel's fishing and permit history after 1994, the Regional

Director shall determine who is entitled to qualify for the limited

access multispecies permit and the DAS allocation according to

paragraph (a)(3) of this section.

(3) Change in ownership. The fishing and permit history of a vessel

is presumed to transfer with the vessel whenever it is bought, sold, or

otherwise transferred, unless there is a written agreement, signed by

the transferor/seller and transferee/buyer, or other credible written

evidence, verifying that the transferor/seller is retaining the

vessel's fishing and permit history for purposes of replacing the

vessel.

(4) Replacement vessels. To be eligible for a limited access

permit, the replacement vessel must meet the following criteria:

(i) The replacement vessel's horsepower may not exceed by more than

20 percent the horsepower of the vessel it is replacing as of the date

the vessel it is replacing was initially issued a 1994 limited access

multispecies permit, as specified on a valid application for a permit

under this section; except that, the horsepower of the replacement

vessel may not exceed the horsepower of the vessel being replaced if

the horsepower of the vessel being replaced has been increased through

upgrade or vessel replacement from that specified when the vessel being

replaced initially applied for a 1994 limited access multispecies

permit; and

(ii) The replacement vessel's length, gross registered tonnage, and

net tonnage may not exceed by more than 10 percent the length, gross

registered tonnage, and net tonnage of the vessel being replaced, based

on specifications provided in the initial 1994 application for a

limited access multispecies permit; except that the length, gross

registered tonnage, and net tonnage of the replacement vessel may not

exceed the length, gross registered tonnage, and net tonnage of the

vessel initially issued a limited access multispecies permit if any or

all of these specifications have been increased through upgrade or

vessel replacement from that specified when the vessel being replaced

initially applied for a 1994 limited access multispecies permit. For

purposes of paragraph (a)(2), a vessel not required to be documented

under title 46, U.S.C. will be considered to be 5 gross registered

tons. For undocumented vessels, net tonnage does not apply.

(5) Upgraded vessel. To remain eligible to retain a valid limited

access multispecies permit, or to apply for or renew a limited access

multispecies permit, a vessel may be upgraded, whether through

refitting or replacement, only if the upgrade complies with the

following limitations:

(i) The vessel's horsepower may be increased, whether through

refitting or replacement, only once. Such an increase may not exceed 20

percent of the horsepower of the vessel initially issued a 1994 limited

access multispecies permit as specified in that vessel's permit

application for a 1994 limited access multispecies permit; and

(ii) The vessel's length, gross registered tonnage, and net tonnage

may be upgraded, whether through refitting or replacement, only once.

Such an increase shall not exceed 10 percent each of the length, gross

registered tonnage, and net tonnage of the vessel initially issued a

1994 limited access multispecies permit as specified in that vessel's

application for a 1994 limited access multispecies permit. This

limitation allows only one upgrade, at which time any or all three

specifications of vessel size may be increased. This type of upgrade

may be done separately from an engine horsepower upgrade.

(iii) A replacement of a vessel that does not result in increasing

horsepower, length, gross registered tonnage or net tonnage is not

considered an upgrade for purposes of this section.

(6) Notification of eligibility for 1994. (i) NMFS will attempt to

notify all owners of vessels for which NMFS has credible evidence that

they meet the criteria described in paragraph (a)(1) of this section,

that they qualify for a limited access multispecies permit if they meet

the requirements contained in paragraphs (d) through (h) of this

section.

(ii) If a vessel owner has not been notified that the vessel is

eligible to be issued a limited access multispecies permit, and the

vessel owner believes that there is credible evidence that the vessel

does qualify under the pertinent criteria, the vessel owner may apply

for a limited access multispecies permit by meeting the requirements

described under paragraphs (e) and (f) of this section and by

submitting the information described in paragraphs (a) (1) through (5)

of this section. In the event the application is denied, the applicant

may appeal as specified in paragraph (a)(8) of this section. If,

through either of these procedures, the Regional Director determines

that the vessel meets the eligibility criteria, a limited access

multispecies permit will be issued to the vessel.

(7) Consolidation restriction. Limited access multispecies permits

and DAS allocations may not be combined or consolidated.

(8) Appeal of denial of limited access multispecies permit.

(i) Any applicant denied a limited access multispecies permit may

appeal the denial to the Regional Director within 30 days of the notice

of denial. Any such appeal must be based on one or more of the

following grounds, must be in writing, and must state the grounds for

the appeal:

(A) The information used by the Regional Director was based on

mistaken or incorrect data;

(B) The applicant was prevented by circumstances beyond his/her

control from meeting relevant criteria; or

(C) The applicant has new or additional information.

(ii) The Regional Director will appoint a designee who will make

the initial decision on the appeal.

(iii) The appellant may request a review of the initial decision by

the Regional Director by so requesting in writing within 30 days of the

notice of the initial decision. If the appellant does not request a

review of the initial decision within 30 days, the initial decision

shall become the final administrative action of the Department of

Commerce.

(iv) Upon receiving the findings and a recommendation, the Regional

Director will issue a final decision on the appeal. The Regional

Director's decision is the final administrative action of the

Department of Commerce.

(v) Status of vessels pending appeal of a limited access

multispecies permit denial. A vessel for which an application has been

completed and an appeal has been initiated may fish under the Fleet DAS

program if it has appealed the denial, the appeal is pending, and the

vessel has on board a letter from the Regional Director, authorizing

the vessel to fish under the Fleet DAS. The Regional Director will

issue such a letter for the pendency of any appeal. Any such decision

is the final administrative action of the Department of Commerce on

allowable fishing activity pending a final decision on the appeal. The

authorizing letter must be carried on board the vessel while

participating in the DAS program. If the appeal is finally denied, the

Regional Director shall send a notice of final denial to the vessel

owner; the authorizing letter becomes invalid 5 days after receipt of

the notice of denial.

(9) Adjustments to limited access multispecies permits. In 1996 and

thereafter, the Council may adjust the criteria for issuance of a

limited access multispecies permit. In making the adjustment, the

Council shall take into consideration the fishing mortality goals and

the objectives of the FMP. Any such adjustment may be made following a

reappraisal and analysis under the framework provisions specified in

subpart C of this part.

(b) Hook-gear-only permit. Beginning on May 1, 1994, any vessel of

the United States that does not have on board a valid limited access

multispecies permit or a possession-limit-only permit, except vessels

that fish exclusively in state waters for multispecies finfish and

recreational fishing vessels, may possess and land multispecies finfish

if it never sets, per day, or possesses, more than 4,500 rigged hooks

as specified in Sec. 651.33, and has on board a valid hook-gear-only

permit. A hook-gear-only permit may be issued to a vessel regardless of

whether it qualifies for a limited access multispecies permit. Until

May 1, 1994, vessels that have been issued 1993 Federal multispecies

permits, not otherwise subject to permit sanctions due to enforcement

proceedings may fish for, possess, or land multispecies finfish in or

from the EEZ. Any other vessel of the United States may obtain an

interim letter of authorization to fish for, possess, or land

multispecies finfish until May 1, 1994, by submitting a 1993 permit

application.

(c) Possession-limit-only permit. Any vessel of the United States

that does not have on board a valid limited access multispecies permit

or hook-gear-only permit, and that possesses or lands no more than the

possession limit of multispecies finfish specified under

Sec. 651.27(a), except vessels that fish exclusively in state waters

for multispecies finfish and recreational fishing vessels, must have

aboard a valid possession-limit-only permit. Until May 1, 1994, vessels

that have been issued 1993 Federal multispecies permits, not otherwise

subject to permit sanctions due to enforcement proceedings may fish

for, possess, or land multispecies finfish in or from the EEZ. Any

other vessel of the United States may obtain an interim letter of

authorization to fish for, possess, or land multispecies finfish until

May 1, 1994, by submitting a 1993 permit application.

(d) Condition. Vessel owners who apply for a permit under this

section must agree as a condition of the permit that the vessel and

vessel's fishing, 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. The vessel and all such

fishing, catch, and gear shall remain subject to all applicable state

or local requirements. If a requirement of this part and a management

measure required by state or local law differ, any vessel owner

permitted to fish in the EEZ must comply with the more restrictive

requirement.

(e) Vessel permit application. Applicants for a permit under this

section must submit a completed application on an appropriate form

obtained from the Regional Director. The application must be signed by

the owner of the vessel, or the owner's authorized representative, and

be submitted to the Regional Director at least 30 days before the date

on which the applicant desires to have the permit made effective. The

Regional Director will notify the applicant of any deficiency in the

application pursuant to this section. Applicants for limited access

multispecies permits who have not been notified of eligibility by the

Regional Director shall provide information with the application

sufficient for the Regional Director to determine whether the vessel

meets the eligibility requirements specified under paragraph (a)(1) of

this section. Applications for 1994 limited access multispecies permits

under this section will not be accepted after December 31, 1994.

Acceptable forms of proof include, but are not limited to, state weigh-

out records, packout forms, settlement sheets, grocery receipts, fuel

receipts, and bridge logs.

(f) Information requirements. (1) In addition to applicable

information required to be provided by paragraph (e) of this section,

an application for either a limited access multispecies, hook-gear-

only, or possession-limit-only permit must contain at least the

following information, and any other information required by the

Regional Director: Vessel name; owner name, mailing address, and

telephone number; U.S. Coast Guard documentation number and a copy of

vessel's U.S. Coast Guard documentation or, if undocumented, state

registration number and a copy of the state registration; home port and

principal port of landing; length; gross tonnage; net tonnage; engine

horsepower; year the vessel was built; type of construction; type of

propulsion; approximate fish-hold capacity; type of fishing gear used

by the vessel; number of crew; permit category; if the owner is a

corporation, a copy of the Certificate of Incorporation, 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

Partnership Agreement and the names and addresses of all partners; if

there is more than one owner, names of all owners having owned more

than a 25-percent interest; and name and signature of the owner or the

owner's authorized representative.

(2) Applications for a limited access multispecies permit must also

contain the following information:

(i) The engine horsepower of the vessel as specified in the

vessel's most recent permit application for a Federal Fisheries Permit

before May 1, 1994. If the engine horsepower was changed or a contract

to change the engine horsepower had been entered into prior to May 1,

1994 such that it is different from that stated in the vessel's most

recent application for a Federal Fisheries Permit before May 1, 1994,

sufficient documentation to ascertain the different engine horsepower.

However, the engine replacement must be completed within 1-year of the

date of when the contract for the replacement engine was signed.

(ii) The length, gross tonnage, and net tonnage of the vessel as

specified in the vessel's most recent permit application for a Federal

Fisheries Permit before May 1, 1994. If the length, gross tonnage, or

net tonnage was changed or a contract to change the length, gross

tonnage or net tonnage had been entered into prior to May 1, 1994 such

that it is different from that stated in the vessel's most recent

application for a Federal Fisheries Permit, sufficient documentation to

ascertain the different length, gross tonnage or net tonnage. However,

the upgrade must be completed within 1 year of the date of when the

contract for the upgrade was signed.

(iii) If the vessel owner is applying to fish under the individual

DAS program specified in this section, the application must include

such election.

(iv) In 1995, if the vessel owner is applying to fish under a

different DAS program than was assigned for 1994, the application must

include such election and the vessel must fish only in that category

for the entire year.

(v) For 1996 and thereafter, a vessel, when fishing under the DAS

program, may fish only under the DAS program assigned to it in 1995, or

if not assigned in 1995, the DAS program assigned to it on its initial

permit to fish under the DAS program. However, any vessel may elect for

any year to fish under a hook-gear-only permit if it meets the

requirements specified in paragraph (b) of this section.

(vi) Beginning on September 1, 1994, if the vessel is a combination

vessel, or if the applicant elects to take an Individual DAS allocation

or to use a VTS unit, although not required, a copy of the vendor

installation receipt from a NMFS-certified VTS vendor as described in

Sec. 651.28(a).

(g) Fees. The Regional Director may charge a fee to recover the

administrative expense of issuing a permit required under this section.

The amount of the fee shall be calculated in accordance with the

procedures of the NOAA Finance Handbook for determining administrative

costs of each special product or service. The fee may not exceed such

costs and is specified on each application form. The appropriate fee

must accompany each application; if it does not, the application will

be considered incomplete for purposes of paragraph (h) of this section.

(h) Issuance. (1) Except as provided in subpart D of 15 CFR part

904 and under paragraph (a)(9) of this section, the Regional Director

shall issue a Federal multispecies vessel permit within 30 days of

receipt of the application unless:

(i) The applicant has failed to submit a completed application. An

application is complete when all requested forms, information,

documentation, and fees, if applicable, have been received and the

applicant has submitted all applicable reports specified at Sec. 651.7;

or

(ii) The application was not received by the Regional Director by

the deadlines set forth in paragraphs (a)(1)(iii) and (p) of this

section; or

(iii) The applicant and applicant's vessel failed to meet all

eligibility requirements described in paragraph (a) (1) and (2) of this

section; or

(iv) The applicant applying for a permit for a combination vessel,

electing to participate in the Individual DAS program, or electing to

use a VTS, has failed to meet all of the VTS requirements as described

in Sec. 651.28; or

(v) The applicant has failed to meet any other application

requirements stated in this part.

(2) Upon receipt of an incomplete or improperly executed

application, the Regional Director shall notify the applicant of the

deficiency in the application. If the applicant fails to correct the

deficiency within 30 days following the date of notification, the

application will be considered abandoned.

(i) Expiration. Federal fishing permits must be renewed annually,

and unless renewed will expire upon the renewal date specified in the

permit.

(j) Duration. A permit is valid until it is revoked, suspended, or

modified under 15 CFR part 904, or until it otherwise expires, or

ownership changes, or the applicant has failed to report any change in

the information on the permit application to the Regional Director as

specified in paragraph (m) of this section.

(k) Replacement. Replacement permits, for an otherwise valid

permit, may be issued by the Regional Director when requested in

writing by the owner or authorized representative, stating the need for

replacement, the name of the vessel, and the Federal Fisheries Permit

number assigned. An application for a replacement permit will not be

considered a new application. An appropriate fee may be charged for

issuance of the replacement permit.

(l) Transfer. Permits issued under this part are not transferable

or assignable. A permit is valid only for the vessel and owner to whom

it is issued.

(m) Change in application information. Within 15 days after a

change in the information contained in an application submitted under

this section, a written notice of the change must be submitted to the

Regional Director. If the written notice of the change in information

is not received by the Regional Director within 15 days, the permit is

void.

(n) Alteration. Any permit that has been altered, erased, or

mutilated is invalid.

(o) Display. Any permit issued under this part must be maintained

in legible condition and displayed for inspection upon request by any

authorized officer.

(p) Sanctions. Procedures governing enforcement-related permit

sanctions and denials are found at subpart D of 15 CFR part 904.

(q) Limited access multispecies permit renewal. To renew or apply

for a limited access multispecies permit in 1995 and thereafter, a

completed application must be received by the Regional Director by

December 31 of the year before the permit is needed. Failure to renew a

limited access multispecies permit in any year bars the renewal of the

permit in subsequent years.

(r) Abandonment or voluntary relinquishment of limited access

multispecies permits. If a vessel's limited access multispecies permit

is voluntarily relinquished to the Regional Director, or abandoned

through failure to renew or otherwise, no limited access multispecies

permit may be re-issued or renewed based on that vessel's history or to

any vessel relying on that vessel's history.

(s) Restriction on the issuance of limited access multispecies

permits to vessels qualifying for other Federal limited access permits.

A limited access multispecies permit may not be issued to a vessel or

its replacement, or remain valid, if the vessel's permit or fishing

history has been used to qualify another vessel for another Federal

fishery.

Sec. 651.5 Operator permits.

(a) General. Any operator of a vessel holding a valid Federal

multispecies permit under this part, or any operator of a vessel

fishing for multispecies finfish in the EEZ or in possession of

multispecies finfish in or harvested from the EEZ, must carry on board

a valid operator's permit issued under this part.

(b) Operator application. Applicants for a permit under this

section must submit a completed permit application on an appropriate

form obtained from the Regional Director. The application must be

signed by the applicant and submitted to the Regional Director at least

30 days prior to the date on which the applicant desires to have the

permit made effective. The Regional Director will notify the applicant

of any deficiency in the application pursuant to this section.

(c) Condition. Vessel operators who apply for an operator's permit

under this section must agree as a condition of this permit that the

operator and vessel's fishing, catch, and pertinent gear (without

regard to whether such fishing occurs in the EEZ or landward of the

EEZ, and without regard to where such fish or gear are possessed,

taken, or landed), are subject to all requirements of this part while

fishing in the EEZ or on board a vessel permitted under Sec. 651.4. The

vessel and all such fishing, catch, and gear will remain subject to all

applicable state or local requirements. Further, such operators must

agree as a condition of this permit that if the permit is suspended or

revoked pursuant to 15 CFR part 904, the operator cannot be on board

any fishing vessel issued a Federal Fisheries Permit or any vessel

subject to Federal fishing regulations while the vessel is at sea or

engaged in offloading. If a requirement of this part and a management

measure required by state or local law differ, any operator issued a

permit under this part must comply with the more restrictive

requirement.

(d) Information requirements. An applicant must provide at least

all the following information and any other information required by the

Regional Director: Name, mailing address, and telephone number; date of

birth; hair color; eye color; height; weight; social security number

(optional) and signature of the applicant. The applicant must also

provide two color passport-size photographs.

(e) Fees. The Regional Director may charge a fee to recover the

administrative expense of issuing a permit required under this section.

The amount of the fee is calculated in accordance with the procedures

of the NOAA Finance Handbook for determining the administrative costs

of each special product or service. The fee may not exceed such costs

and is specified on each application form. The appropriate fee must

accompany each application; if it does not, the application will be

considered incomplete for purposes of paragraph (f) of this section.

(f) Issuance. Except as provided in subpart D of 15 CFR part 904,

the Regional Director shall issue an operator's permit within 30 days

of receipt of a completed application if the criteria specified herein

are met. Upon receipt of an incomplete or improperly executed

application, the Regional Director will notify the applicant of the

deficiency in the application. If the applicant fails to correct the

deficiency within 30 days following the date of notification, the

application will be considered abandoned.

(g) Expiration. Federal operator permits must be renewed annually,

and unless renewed will expire upon the renewal date specified in the

permit.

(h) Duration. A permit is valid until it is revoked, suspended or

modified under 15 CFR part 904, or otherwise expires, or the applicant

has failed to report a change in the information on the permit

application to the Regional Director as specified in paragraph (k) of

this section.

(i) Replacement. Replacement permits, for otherwise valid permits,

may be issued by the Regional Director when requested in writing by the

applicant, stating the need for replacement and the Federal operator

permit number assigned. An applicant for a replacement permit must also

provide two color passport-size photos of the applicant. An application

for a replacement permit will not be considered a new application. An

appropriate fee may be charged.

(j) Transfer. Permits issued under this part are not transferable

or assignable. A permit is valid only for the person to whom it is

issued.

(k) Change in application information. Notice of a change in the

permit holder's name, address, or telephone number must be submitted in

writing to, and received by, the Regional Director within 15 days of

the change in information. If written notice of the change in

information is not received by the Regional Director within 15 days,

the permit is void.

(l) Alteration. Any permit that has been altered, erased, or

mutilated is invalid.

(m) Display. Any permit issued under this part must be maintained

in legible condition and displayed for inspection upon request by any

authorized officer.

(n) Sanctions. Vessel operators with suspended or revoked permits

may not be on board a Federally permitted fishing vessel in any

capacity while the vessel is at sea or engaged in offloading.

Procedures governing enforcement related permit sanctions and denials

are found at subpart D of 15 CFR part 904.

(o) Vessel owner responsibility. Vessel owners are responsible for

ensuring that their vessels are operated by an individual with a valid

operator's permit issued under this section.

Sec. 651.6 Dealer permits.

(a) All dealers must have been issued and have in their possession

a valid permit issued under this part.

(b) Dealer application. Applicants for a permit under this section

must submit a completed application on an appropriate form provided by

the Regional Director. The application must be signed by the applicant

and submitted to the Regional Director at least 30 days before the date

upon which the applicant desires to have the permit made effective. The

Regional Director will notify the applicant of any deficiency in the

application pursuant to this section.

(c) Information requirements. Applications must contain at least

the following information and any other information required by the

Regional Director: Company name, place(s) of business, mailing

address(es) and telephone number(s); owner's name; dealer permit number

(if a renewal); and name and signature of the person responsible for

the truth and accuracy of the report. If the dealer is a corporation, a

copy of the certificate of incorporation must be included with the

application. If a partnership, a copy of the Partnership Agreement and

the names and addresses of all partners must be included with the

application.

(d) Fees. The Regional Director may charge a fee to recover the

administrative expense of issuing a permit required under this section.

The amount of the fee is calculated in accordance with the procedures

of the NOAA Finance Handbook for determining the administrative costs

of each special product or service. The fee may not exceed such costs

and is specified with each application form. The appropriate fee must

accompany each application; if it does not, the application will be

considered incomplete for purposes of paragraph (e) of this section.

(e) Issuance. Except as provided in subpart D of 15 CFR part 904,

the Regional Director will issue a permit at any time during the

fishing year to an applicant unless the applicant has failed to submit

a completed application. An application is complete when all requested

forms, information, and documentation have been received and the

applicant has submitted all applicable reports specified in

Sec. 651.7(a). Upon receipt of an incomplete or improperly executed

application, the Regional Director will notify the applicant of the

deficiency in the application. If the applicant fails to correct the

deficiency within 30 days following the date of notification, the

application will be considered abandoned.

(f) Expiration. Federal dealer permits must be renewed annually,

and unless renewed, will expire upon the renewal date specified in the

permit.

(g) Duration. A permit is valid until it is revoked, suspended, or

modified under 15 CFR part 904, or otherwise expires, or ownership

changes, or the applicant has failed to report any change in the

information on the permit application to the Regional Director as

required by paragraph (j) of this section.

(h) Replacement. Replacement permits, for otherwise valid permits,

may be issued by the Regional Director when requested in writing by the

applicant, stating the need for replacement and the Federal dealer

permit number assigned. An application for a replacement permit will

not be considered a new application. An appropriate fee may be charged.

(i) Transfer. Permits issued under this part are not transferable

or assignable. A permit is valid only for the person to whom, or other

business entity to which, it is issued.

(j) Change in application information. Within 15 days after a

change in the information contained in an application submitted under

this section, a written report of the change must be submitted to, and

received by, the Regional Director. If written notice of the change in

information is not received by the Regional Director within 15 days,

the permit is void.

(k) Alteration. Any permit that has been altered, erased, or

mutilated is invalid.

(l) Display. Any permit, or a valid duplicate thereof, issued under

this part must be maintained in legible condition and displayed for

inspection upon request by any authorized officer.

(m) Federal versus state requirements. If a requirement of this

part differs from a fisheries management measure required by state law,

any dealer issued a Federal dealer permit must comply with the more

restrictive requirement.

(n) Sanctions. Procedures governing enforcement-related permit

sanctions and denials are found at subpart D of 15 CFR part 904.

Sec. 651.7 Recordkeeping and reporting.

(a) Dealers.--(1) Weekly report. Dealers must send by mail, to the

Regional Director, or official designee, on a weekly basis, on forms

supplied by or approved by the Regional Director, a report of fish

purchases. If authorized in writing by the Regional Director, dealers

may submit reports electronically or through other media. The following

information and any other information required by the Regional Director

must be provided in the report: name and mailing address of dealer;

dealer number; name and permit number of the vessels from which fish

are landed or received; dates of purchases; pounds by species; price by

species; and port landed. If no fish are purchased during the week, a

report so stating must be submitted.

(2) Annual report. All persons required to submit reports under

paragraph (a)(1) of this section are required to complete the

``Employment Data'' section of the Annual Processed Products Reports;

completion of the other sections on that form is voluntary. Reports

must be submitted to the address supplied by the Regional Director.

(3) Inspection. Upon request by an authorized officer or by an

employee of NMFS designated by the Regional Director to make such

inspections, the dealer must make permanently available for inspection,

copies of the required reports that have been submitted, should have

been submitted, or the records upon which the reports were based.

(4) Record retention. Copies of reports, and records upon which the

reports were based, must be retained and be available for review for 1

year after the date of the last entry on the report. The dealer must

retain such reports and records at its principal place of business.

(5) Submitting reports. Reports must be sent and, if mailed,

postmarked within 3 days after the end of each reporting week. Each

dealer will be sent forms and instructions, including the address to

which to submit reports, shortly after receipt of a dealer permit.

(b) Vessel owners.--(1) Fishing log reports. The owner of any

vessel issued a Federal multispecies permit under Sec. 651.4 must

maintain, on board the vessel, and submit an accurate daily fishing log

for all fishing trips, regardless of species fished for or taken, on

forms supplied by or approved by the Regional Director. If authorized

in writing by the Regional Director, vessel owners may submit reports

electronically, for example, using the VTS, or through other media. The

following information and any other information required by the

Regional Director must be provided: Vessel name, U.S. Coast Guard

documentation number (or state registration number if undocumented),

and permit number; date/time sailed; date/time landed; trip type;

number of crew; number of anglers (if a charter or party boat); gear

fished; quantity and size of gear; mesh/ring size; chart area fished;

average depth; latitude/longitude (or loran station and bearings);

total hauls per area fished; average tow-time duration; pounds, by

species, of all species landed or discarded; dealer permit number;

dealer name; date sold; port and state landed; and vessel operator's

name, signature, and operator permit number.

(2) When to fill in the log. Such log reports must be filled in,

except for information required but not yet ascertainable, before

offloading has begun. At the end of a fishing trip, all information in

paragraph (b)(1) of this section must be filled in for each fishing

trip before starting the next fishing trip.

(3) Inspection. Owners and operators shall, immediately upon

request, make the fishing log reports currently in use or to be

submitted available for inspection by an authorized officer, or by an

employee of NMFS designated by the Regional Director to make such

inspections, at any time during or after a trip.

(4) Record retention. Copies of fishing log reports must be

retained and available for review for 1 year after the date of the last

entry on the report.

(5) Submitting reports. Fishing log reports must be received or

postmarked, if mailed, within 15 days after the end of the reporting

month. Each owner will be sent forms and instructions, including the

address to which to submit reports, shortly after receipt of a Federal

Fisheries Permit. If no fishing trip is made during a month, a report

so stating must be submitted.

Sec. 651.8 Vessel identification.

(a) Vessel name. Each fishing vessel subject to this part and that

is over 25 ft (7.6 m) in length must display its name on the port and

starboard sides of its bow and, if possible, on its stern.

(b) Official number. Each fishing vessel subject to this part that

is over 25 ft (7.6 m) in length must display its official number on the

port and starboard sides of its deckhouse or hull, and on an

appropriate weather deck, so as to be visible from above by enforcement

vessels and aircraft. The official number is the U.S. Coast Guard

documentation number or the vessel's state registration number for

vessels not required to be documented under title 46 of U.S.C.

(c) Numerals. The official number must be permanently affixed in

contrasting block Arabic numerals at least 18 inches (45.7 cm) in

height for vessels over 65 feet (19.8 m), and at least 10 inches (25.4

cm) in height for all other vessels over 25 ft (7.6 m) in length.

(d) Duties of owner and operator. The owner and operator of each

vessel subject to this part shall:

(1) Keep the vessel name and official number clearly legible and in

good repair; and

(2) Ensure that no part of the vessel, its rigging, its fishing

gear, or any other object obstructs the view of the official number

from an enforcement vessel or aircraft.

Sec. 651.9 Prohibitions.

(a) In addition to the general prohibitions specified in Sec. 620.7

of this chapter, it is unlawful for any person owning or operating a

vessel holding a valid Federal multispecies vessel permit issued under

this part, issued a permit under Sec. 651.5 or a letter under

Sec. 651.4(a)(8)(v), to do any of the following:

(1) Possess or land multispecies finfish smaller than the minimum

size as specified in Sec. 651.23.

(2) Fail to comply in an accurate and timely fashion with the log

report, reporting, record retention, inspection, and other requirements

of Sec. 651.7(b).

(3) Fish for, possess, or land multispecies finfish unless the

operator of the vessel has been issued an operator's permit under

Sec. 651.5, and a valid permit is on board the vessel.

(4) Fail to report to the Regional Director within 15 days any

change in the information contained in the permit application as

required under Sec. 651.4(m) or Sec. 651.5(k).

(5) Fail to affix and maintain permanent markings as required by

Sec. 651.8.

(6) Sell, transfer, or attempt to sell or transfer to a dealer any

multispecies finfish unless the dealer has a valid Federal Dealer's

Permit issued under Sec. 651.6.

(7) Land, offload, remove, or otherwise transfer or attempt to

land, offload, remove, or otherwise transfer multispecies finfish or

fish from one vessel to another vessel or other floating conveyance.

(8) Refuse or fail to carry an observer if requested to do so by

the Regional Director.

(9) Interfere with or bar by command, impediment, threat, coercion,

or refusal of reasonable assistance, an observer conducting his or her

duties aboard a vessel.

(10) Fail to provide an observer with the required food,

accommodations, access, and assistance, as specified in Sec. 651.31.

(11) Land haddock from, or possess haddock on board, a sea scallop

dredge vessel as specified in Sec. 651.27(b)(1).

(12) Land, or possess on board a vessel, more than 500 lbs (226.8

kg) of haddock, as specified in Sec. 651.27(b)(2) or violate any of the

other provisions specified in Sec. 651.27(b)(2).

(13) Fish with, set, haul back, possess on board a vessel, or fail

to remove from all waters, a sink gillnet during the times specified in

Sec. 651.32(b).

(b) In addition to the prohibitions specified in paragraph (a) of

this section, it is unlawful for any person owning or operating a

vessel issued a limited access permit under Sec. 651.4(a) or a letter

under Sec. 651.4(a)(8)(v), to do any of the following:

(1) Possess or land more than 500 lbs. (226.8 kg) of regulated

species per trip after using up the vessel's annual DAS allocation or

when not participating under the DAS program pursuant to Sec. 651.22.

(2) If required to have a VTS unit as specified in Sec. 651.28(a)

or Sec. 651.29(a):

(i) Fail to have a certified, operational, and functioning VTS unit

that meets the specifications of Sec. 651.28(a) on board the vessel at

all times.

(ii) Fail to comply with the notification, replacement, or any

other requirements regarding VTS usage as specified in Sec. 651.29(a).

(3) Combine, transfer, or consolidate DAS allocations.

(4) Fish for, possess, or land multispecies finfish with or from a

vessel that has had the horsepower of such vessel or its replacement

upgraded or increased in excess of the limitations specified in

Sec. 651.4(a)(5)(i).

(5) Fish for, possess, or land multispecies finfish with or from a

vessel that has had the length, gross registered tonnage, or net

tonnage of such vessel or its replacement increased or upgraded in

excess of limitations specified in Sec. 651.4(a)(5)(ii).

(6) Fail to comply with any requirement regarding the DAS

notification as specified in Sec. 651.29.

(7) If not fishing under the VTS system, fail to have on board the

vessel a card issued by the Regional Director, as specified in

Sec. 651.29(b).

(8) Fail to notify that a vessel is participating in the DAS

program as specified in Sec. 651.29(b).

(9) Fail to comply with the other methods of notification

requirements, including a call-in system as specified in

Sec. 651.29(c), if required by the Regional Director.

(10) Fail to provide notification of the beginning or ending of a

DAS before leaving port or before returning to port, as required under

Sec. 651.29 (b) or (c).

(c) In addition to the prohibitions specified in paragraph (a) of

this section, it is unlawful for any person owning or operating a

vessel issued a hook-gear-only permit under Sec. 651.4(b) to fish with,

set, or haul back more than 4,500 rigged hooks per day, or to possess

on board a vessel more than 4,500 rigged hooks while the vessel, and

persons on the vessel, are in possession of or landing more than 500

lbs. (226.8 kg) of, or fishing for regulated species.

(d) In addition to the prohibitions specified in paragraph (a) of

this section, it is unlawful for any person owning or operating a

vessel issued a possession-limit-only permit under Sec. 651.4(c) to

possess or land per trip more than 500 lbs (226.8 kg) of regulated

species.

(e) In addition to the general prohibitions specified in Sec. 620.7

of this chapter and the prohibitions specified in paragraphs (a)

through (d) of this section, it is unlawful for any person to do any of

the following:

(1) Fish for, possess, or land multispecies finfish unless:

(i) The multispecies finfish were being fished for or harvested by

a vessel holding a valid Federal multispecies permit under this part,

or a letter under Sec. 651.4(a)(8)(v), and the operator on board such

vessel has been issued an operator's permit under Sec. 651.5 and has a

valid permit on board the vessel;

(ii) The multispecies finfish were harvested by a vessel not issued

a Federal multispecies permit that fishes for multispecies finfish

exclusively in state waters; or

(iii) The multispecies finfish were harvested by a recreational

fishing vessel.

(2) Possess or land regulated species in excess of 500 lbs (226.8

kg) per trip on or after May 1, 1994, as specified in Sec. 651.27

unless:

(i) The multispecies finfish were harvested by a vessel that has

been issued a limited access permit under Sec. 651.4(a), a hook-gear-

only permit under Sec. 651.4(b), or a letter under Sec. 651.4(a)(8)(v);

or

(ii) The regulated species were harvested by a vessel that

qualifies for the exception specified in paragraph (e)(1)(ii) of this

section.

(3) Land, offload, cause to be offloaded, sell, or transfer; or

attempt to land, offload, cause to be offloaded, sell, or transfer

multispecies finfish from a fishing vessel, whether on land or at sea,

as an owner or operator without accurately preparing and submitting, in

a timely fashion, the documents required by Sec. 651.7, unless the

multispecies finfish were harvested by a vessel that qualifies for the

exception specified in paragraph (e)(1)(ii) of this section.

(4) Purchase or receive multispecies finfish, or attempt to

purchase or receive multispecies finfish, whether on land or at sea, as

a dealer without accurately preparing, submitting in a timely fashion,

and retaining the documents required by Sec. 651.7.

(5) Land, offload, remove, or otherwise transfer, or attempt to

land, offload, remove or otherwise transfer multispecies finfish from

one vessel to another vessel, unless both vessels qualify under the

exception specified in paragraph (e)(1)(ii) of this section, or unless

authorized in writing by the Regional Director.

(6) Sell, barter, trade, or otherwise transfer; or attempt to sell,

barter, trade, or otherwise transfer for a commercial purpose any

multispecies finfish from a trip unless the vessel is holding a valid

Federal multispecies permit under this part, or a letter under

Sec. 651.4(a)(8)(v), or the multispecies finfish were harvested by a

vessel without a Federal multispecies permit that fishes for

multispecies finfish exclusively in state waters.

(7) 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, multispecies finfish taken from a fishing

vessel, unless in possession of a valid dealer permit issued under

Sec. 651.6; except that this prohibition does not apply to multispecies

finfish taken from a vessel that qualifies for the exception specified

in paragraph (e)(1)(ii) of this section.

(8) Purchase, possess, or receive for commercial purposes

multispecies finfish caught by a vessel other than one holding a valid

Federal multispecies permit under this part, or a letter under

Sec. 651.4(a)(8)(v), unless the multispecies finfish were harvested by

a vessel that qualifies for the exception specified in paragraph

(e)(1)(ii) of this section.

(9) To be or act as an operator of a vessel fishing for or

possessing multispecies finfish in or from the EEZ, or holding a

Federal multispecies permit under this part without having been issued

and possessing a valid operator's permit issued under Sec. 651.5.

(10) Assault, resist, oppose, impede, harass, intimidate, or

interfere with a NMFS-approved observer aboard a vessel.

(11) Make any false statement, oral or written, to an authorized

officer or employee of NMFS, concerning the taking, catching,

harvesting, landing, purchase, sale, or transfer of any multispecies

finfish.

(12) Make any false statement in connection with an application

under Secs. 651.4 or 651.5 or on any report required to be submitted or

maintained under Sec. 651.7.

(13) Tamper with, damage, destroy, alter, or in any way distort,

render useless, inoperative, ineffective, or inaccurate the VTS, VTS

unit, or VTS signal required to be installed on or transmitted by

vessel owners or operators required to use a VTS by this part.

(14) Fish with or possess within the areas described in

Sec. 651.20(a)(1) nets of mesh smaller than the minimum size specified

in Sec. 651.20(a)(2), unless the vessel is exempted under

Sec. 651.20(a)(3) or (a)(4), or unless the vessel qualifies for the

exception specified in paragraph (e)(1)(ii) of this section.

(15) Fish with or possess within the area described in

Sec. 651.20(b)(1) nets of mesh smaller than the minimum size specified

in Sec. 651.20(b)(2), unless the vessel qualifies for the exception

specified in paragraph (e)(1)(ii) of this section.

(16) Fish with or possess within the area described in

Sec. 651.20(c)(1), nets of mesh smaller than the minimum size specified

in Sec. 651.20(c)(2), unless the vessel possesses no more regulated

species than the possession limit specified in Sec. 651.27(a), or

unless the nonconforming mesh is stowed in accordance with

Sec. 651.20(c)(4), or unless the vessel qualifies for the exception

specified in paragraph (e)(1)(ii) of this section.

(17) Fish with or possess within the areas described in

Sec. 651.20(d)(1), nets of mesh smaller than the minimum size specified

in Sec. 651.20(d)(2), unless the vessel possesses no more regulated

species than the possession limit specified in Sec. 651.27(a), or

unless the nonconforming mesh is stowed in accordance with

Sec. 651.20(c)(4), or unless the vessel qualifies for the exception

specified in paragraph (e)(1)(ii) of this section.

(18) Enter the area described in Sec. 651.21(a) on a fishing vessel

during a period in which the area is closed, except as specified in

that section.

(19) Fish with, set, haul back, have on board a fishing vessel, or

fail to remove sink gillnet gear in or from the area specified in

Sec. 651.21(a) during the time period specified in Sec. 651.21(a)(1).

(20) Enter the area described in Sec. 651.21(b) on a fishing vessel

during the time period specified in Sec. 651.21(b)(3), except as

specified by Sec. 651.21(b)(4).

(21) Fish in the area described in Sec. 651.21(c), if the area has

been closed as provided for in Sec. 651.21(c), except as provided by

Sec. 651.21(c)(5).

(22) Fail to comply with the gear-marking requirements of

Sec. 651.25.

(23) Import, export, transfer, land, or possess regulated species

that are smaller than the minimum sizes as specified in Sec. 651.23,

unless the regulated species were harvested from a vessel that

qualifies for the exception specified in paragraph (e)(1)(ii) of this

section.

(24) Interfere with, obstruct, delay, or prevent by any means

lawful investigation or search relating to the enforcement this part.

(25) Fish within the areas described in Sec. 651.20(a)(4) with nets

of mesh smaller than the minimum size specified in Sec. 651.20(a)(2),

unless the vessel is issued and possesses on board the vessel an

authorizing letter issued under Sec. 651.20(a)(4)(i).

(26) Violate any provisions of the Cultivator Shoals Whiting

Fishery specified in Sec. 651.20(a)(4).

(27) Fish for, land, or possess multispecies finfish harvested by

means of pair trawling or with pair trawl gear, except under the

provisions of Sec. 651.20(e), or unless the vessels that engaged in

pair trawling qualify for the exception specified in paragraph

(e)(1)(ii) of this section.

(28) Fish for, harvest, possess, or land in or from the EEZ

northern shrimp, unless such shrimp were fished for or harvested by a

vessel meeting the requirements specified in Sec. 651.20(a)(3)(ii).

(29) Fail to comply with the requirements as specified in

Sec. 651.20(a)(5).

(30) Fish for the species specified in Sec. 651.20 (e) or (f) with

a net of mesh size smaller than the applicable mesh size by area fished

specified in Sec. 651.20, or possess or land such species, unless the

vessel is in compliance with the requirements specified in Sec. 651.20

(e) or (f), or unless the vessel qualifies for the exception specified

in paragraph (e)(1)(ii) of this section.

(31) Fish with, set, haul back, possess on board a vessel, or fail

to remove from the EEZ, a sink gillnet during the times specified in

Sec. 651.32(b).

(32) Violate any provision specified under Sec. 651.29.

(33) Land haddock from, or possess haddock on board, a sea scallop

dredge vessel as specified in Sec. 651.27(b)(1).

(34) Land, or possess on board a vessel, more than 500 lbs (226.8

kg) of haddock in, or harvested from, the EEZ as specified in

Sec. 651.27(b)(2) or violate any of the other provisions specified in

Sec. 651.27(b)(2).

(35) To purchase, possess, or receive as a dealer, or in the

capacity of a dealer, regulated species from a vessel issued a federal

multispecies permit in excess of the possession limit applicable to a

vessel as specified in Sec. 651.27.

(f) It is unlawful to violate any other provision of this part, the

Magnuson Act, or any regulation or permit issued under the Magnuson

Act.

(g) Presumption. The possession for sale of regulated species that

do not meet the minimum sizes specified in Sec. 651.23 for sale will be

prima facie evidence that such regulated species were taken or imported

in violation of these regulations. Evidence that such fish were

harvested by a vessel not issued a permit under this part and fishing

exclusively within state waters will be sufficient to rebut the

presumption. This presumption does not apply to fish being sorted on

deck.

Sec. 651.10 Facilitation of enforcement.

See Sec. 620.8 of this chapter.

Sec. 651.11 Penalties.

See Sec. 620.9 of this chapter.

Subpart B--Management Measures

Sec. 651.20 Regulated mesh areas and restrictions on gear and methods

of fishing.

All vessels fishing for, harvesting, possessing, or landing

multispecies finfish in or from the EEZ and all vessels holding a

Federal multispecies permit under this part must comply with the

following restrictions on minimum mesh size, gear, and methods of

fishing, unless otherwise exempted or prohibited.

(a) Gulf of Maine/Georges Bank (GOM/GB) regulated mesh area. (1)

Area definition. The Gulf of Maine/Georges Bank regulated mesh area is

that area:

(i) Bounded on the east by the U.S.-Canada maritime boundary,

defined by straight lines connecting the following points in the order

stated (see Figure 1 to Part 651):

Gulf of Maine/Georges Bank Regulated Mesh Area

------------------------------------------------------------------------

Point Latitude Longitude

------------------------------------------------------------------------

G1.................................. (\1\) (\1\)

G2.................................. 43 deg.58' N. 67 deg.22' W.

G3.................................. 42 deg.53.1' N. 67 deg.44.4' W.

G4.................................. 42 deg.31' N. 67 deg.28.1' W.

G5.................................. 41 deg.18.6' N. 66 deg.24.8' W.

------------------------------------------------------------------------

\1\The intersection of the shoreline and the U.S.-Canada maritime

boundary [southward along the irregular U.S.-Canada maritime

boundary].

(ii) Bounded on the south by straight lines connecting the

following points in the order stated:

----------------------------------------------------------------------------------------------------------------

Point

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