Magnuson-Stevens Act Provisions; List of Fisheries and Gear, and Notification Guidelines

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 980519132-8132-01; I.D.022498F]

RIN 0648-AK49

Magnuson-Stevens Act Provisions; List of Fisheries and Gear, and

Notification Guidelines

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to establish a list of fisheries and fishing

gear used in those fisheries under the authority of each Regional

Fishery Management Council (Council), or the Secretary of Commerce

(Secretary) for Atlantic highly migratory species. NMFS also proposes

guidelines for determining when fishing gear or a fishery is

sufficiently different from those listed to require notification of the

appropriate authority. The list of fisheries and gear and the

guidelines would apply only to fisheries and gear that occur within the

[[Page 30456]]

U.S. Exclusive Economic Zone (EEZ). This proposed rule would also

provide a process by which fishermen can give notification to the

appropriate Council or to the Secretary in order to use a gear that

does not appear on the list of allowable gear types or to participate

in an unlisted fishery. The proposed list and guidelines are required

by the Magnuson-Stevens Fishery and Conservation and Management Act

(Magnuson-Stevens Act), as amended by the Sustainable Fisheries Act

(SFA).

DATES: Comments must be received by July 6, 1998.

ADDRESSES: Comments should be sent to Dr. Gary C. Matlock, Director,

Office of Sustainable Fisheries, NMFS, 1315 East-West Highway, Silver

Spring, MD 20910. Comments regarding the collection-of-information

requirement contained in this rule should be sent to the above address

and to the Office of Information and Regulatory Affairs, Office of

Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk

Officer).

FOR FURTHER INFORMATION CONTACT: Mark Millikin, NMFS, 301/713-2344.

SUPPLEMENTARY INFORMATION:

Background

This rulemaking is required by the Magnuson-Stevens Act (16 U.S.C.

1801 et seq.), as amended by the SFA, which was signed into law on

October 11, 1996. Section 305(a) of the Magnuson-Stevens Act requires

that the Secretary of Commerce (Secretary), not later than 18 months

after the date of enactment of the SFA, publish in the Federal

Register, after notice and an opportunity for public comment, a list of

fisheries under the authority of each Council and all fishing gear used

in such fisheries. This list is to be based on information submitted by

the Councils under section 303(a) of the Magnuson-Stevens Act, and for

Atlantic highly migratory pelagic fisheries to which section 302(a)(3)

applies. In addition, the Magnuson-Stevens Act requires that the

Secretary include with such a list guidelines for determining when

fishing gear or a fishery is sufficiently different from those listed

as to require fishermen or other individuals to notify a Council or the

Secretary under section 305(a)(3).

List of Fisheries and Gear

As required by the SFA, the Councils submitted to NMFS a list of

fisheries under their authority and the gear types used in each

fishery. Fisheries under a Council's authority include those managed

through a fishery management plan (FMP) and fisheries occurring within

the geographical boundaries of that Council not managed through an FMP.

In addition to these submissions, the List of Fisheries (LOF), as

required by the Marine Mammal Protection Act (MMPA) and published on

February 4, 1998 (63 FR 5748), was used as an additional source of

information to ensure the list of fisheries and gear types was

complete. The result is the proposed list of fisheries and allowable

gear types for all fisheries within the EEZ.

NMFS is not aware of any Treaty Indian tribe or subsistence

fisheries in the EEZ other than those listed in Sec. 600.725(v) of this

proposed rule. This action is not intended to supersede or otherwise

affect exemptions that exist for subsistence or Native American harvest

under Treaty Indian fisheries. However, NMFS is particularly interested

in receiving public comment on this topic.

NMFS is considering the possibility that exceptions to the full 90-

day waiting period, before using a new gear or participating in a new

fishery, may be desirable under certain circumstances. NMFS invites

comments on what conditions might warrant such an expedited review and

approval of a new gear or fishery.

This rule is not intended to affect experimental fisheries

conducted for a year or less elsewhere under Title 50, Chapter VI of

the CFR.

NMFS requests comments regarding the completeness and accuracy of

the proposed list of gear, definitions, and fisheries that may have

been inadvertently left off the proposed list of fisheries and

allowable gear. While gear types were included on the list, methods of

gear deployment were not. This explains the absence of ``gears'' such

as pelagic longline, jig, troll, bottom trawl, otter trawl, or drift

gillnet on the proposed list. For example, ``jig'' and ``troll'' are

considered deployment methods for hook-and-line gear, rather than gear

types. Terms such as ``pelagic,'' ``bottom,'' and ``drift'' are

modifiers that describe where in the water column the specific gear

type is used. Also, ``hand gear'' is included on the list only under

fisheries where it is the only allowed method of harvest--the Caribbean

Queen Conch FMP and the Coral Reef FMPs in the South Atlantic and the

Gulf of Mexico.

Definitions of each gear type were developed to describe and

differentiate among gear used in the fisheries. In order to derive

these definitions of gear types, existing definitions of gear types

were obtained from fishery regulations in Title 50, Chapter VI of the

CFR. Various sources were used to obtain general definitions for gear

types not contained in regulations, including staff of the Councils,

NMFS, and the Interstate Marine Fishery Commissions. Literature sources

and manuals on gear types were also used to obtain gear definitions.

The gear definitions are an important aspect of this activity because

the definitions will determine the specific allowable gear in each

fishery. In addition, the gear definitions have implications for the

guidelines when determining if a particular gear type is sufficiently

different from those listed so as to require notification under section

305(a) of the Magnuson-Stevens Act. General definitions would be added

to section 600.10.

Prohibitions on Use of Unlisted Gear

Listed gear would be allowed to be used only in a manner that is

consistent with existing laws or regulations. The list of fisheries and

allowable gear would not, in any way, alter or supersede any

definitions or regulations contained elsewhere in 50 CFR chapter VI. A

person or vessel would be prohibited from engaging in fishing or

employing fishing gear when such fishing or gear is prohibited or

restricted by regulation under an FMP, as implemented elsewhere in 50

CFR chapter VI, or under other applicable law.

Procedures for Notification of New Gear or Fisheries

Based on comments received on this proposed rule, NMFS will publish

a final rule containing the final list of fisheries and gear used in

those fisheries. One hundred and eighty days after the publication of

the final list of fisheries and gear, no individual or vessel may

employ unlisted fishing gear or participate in an unlisted fishery

without providing notification of intent to the appropriate Council, or

to the Director, Office of Sustainable fisheries, NMFS (Director), in

the case of Atlantic highly migratory species fisheries. Fishermen and

vessels may not participate in unlisted fisheries or use unlisted gear

for a period of 90 days following notification of the Council or the

Director. Required information for adequate notification is listed in

section 600.747(c)(3).

Species Other Than Atlantic Highly Migratory Species

After receiving notification regarding intended participation in an

unlisted fishery or use of unlisted gear, a Council would begin

consideration of the notification and immediately send a copy of the

notification to the appropriate NMFS Regional Administrator (RA). If,

after

[[Page 30457]]

consideration of the notification and accompanying information, a

Council found that the new gear or fishery would not compromise the

effectiveness of conservation and management efforts under the

Magnuson-Stevens Act, it would recommend to the RA that the authorized

list of fisheries and gear be amended, provide rationale and supporting

analysis, and provide a draft proposed rule to amend the authorized

list of fisheries and gear for publication in the Federal Register. If

the Council found that the proposed new gear or fishery would be

detrimental to conservation and management efforts, the Council would

recommend to the RA that the authorized list of fisheries and gear not

be amended, that a proposed rule not be published, give reasons for its

recommendation for a disapproval, and might request NMFS to issue

emergency or interim regulations, and begin preparation of an FMP or

amendment to an FMP, if appropriate.

Based on the information provided in the notification and by the

Council, NMFS would determine if the new gear or fishery would

compromise the effectiveness of conservation and management efforts

under the Magnuson-Stevens Act and whether to publish the proposed rule

to amend the list of fisheries and gear.

If the initial determination were positive, NMFS would publish the

proposed rule, with a 30-day comment period. Following the end of the

comment period, NMFS would either approve or disapprove the change to

the list based on the potential impacts on the effectiveness of

conservation and management efforts. If approved, NMFS would publish a

final rule revising the list, and notify the applicant of the final

approval. If the use of the gear or participation in a fishery were

determined to be detrimental to conservation and management efforts

under the Magnuson-Stevens Act, the proposed addition to the list would

be disapproved, NMFS would notify the applicant and the appropriate

Council of the negative determination and the reasons for the

determination, and might publish emergency or interim regulations in

the Federal Register to prohibit or restrict the use of the unlisted

gear or fishing in the unlisted fishery. Upon notification by NMFS that

the proposed revision had been disapproved, the Council should begin

preparation of an FMP or amendment to an FMP in order to provide

permanent regulations relative to that gear type or fishery.

If the initial determination by NMFS were negative, because use of

the gear or participation in the fishery were likely to compromise

conservation and management efforts under the Magnuson-Stevens Act, and

it were unlikely that additional new information would be gained from a

public comment period, then NMFS would notify the applicant and the

Council of the negative determination and the reasons for that

determination, and might publish emergency or interim regulations in

the Federal Register to prohibit or restrict the use of the unlisted

gear or fishing in the unlisted fishery. The Council should then begin

preparation of an FMP or an amendment to an FMP to provide permanent

regulations relative to that gear type or fishery.

Atlantic Highly Migratory Species

Notification of intent to use an unlisted gear or participate in an

unlisted fishery for Atlantic highly migratory species would be

addressed to the Director. After receiving such notification, a

determination would be made whether the new gear or new fishery would

compromise the effectiveness of conservation and management programs

and whether to publish a proposed rule to amend the list of gear and

fisheries.

If the determination were positive, a proposed rule to amend the

list of gear and fisheries would be published in the Federal Register

for public comment. Following the end of the public comment period,

NMFS would consider comments or new information received relative to

the effect of the new gear or fishery on conservation and management

programs, and would either approve or disapprove the proposed

amendment. If approved, the applicant would be notified, and a final

rule would be published amending the list of fisheries and gear. If

after receiving public comment, NMFS disapproved the proposed

amendment, the applicant would be notified of the disapproval,

including reasons for the disapproval, and NMFS might publish emergency

or interim regulations and subsequently develop or amend the FMP to

prohibit or restrict the use of the unlisted gear or participation in

the unlisted fishery.

If the initial determination were negative, NMFS would notify the

applicant, including the reasons for the disapproval, and might publish

emergency or interim regulations and subsequently develop or amend an

FMP to prohibit or restrict the use of the unlisted gear or

participation in the unlisted fishery.

Issues or Topics of Special Concern

NMFS specifically encourages comments on this proposed rule

regarding the determination of what constitutes a ``different'' gear or

fishery when an individual is attempting to use a new gear or enter a

new fishery not on the proposed list of fisheries and gear. NMFS also

requests comments regarding the types of information that would be

required in the notification that would be submitted to the appropriate

authority. The proposed list of gear by fishery under the Councils, or

the Secretary in the case of Atlantic highly migratory species, appears

at Sec. 600.725.

Classification

This proposed rule has been determined to be not significant for

purposes of E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this rule will not have a

significant impact on a substantial number of small entities. This

action does not change the analyses already completed nor the

conclusions made under the Regulatory Flexibility Act (RFA) for any

gear that can be used in a fishery or gear that is prohibited

seasonally, or year round, for any previous rulemakings for fisheries

under 50 CFR parts 600, 622, 630, 640, 644, 648, 649, 654, 660, 678,

and 679. NMFS' guidelines for preparation of economic analyses to

comply with the RFA assume that a ``substantial number'' of small

entities would generally be 20 percent of the total universe of small

entities affected by the regulation. A regulation would have a

``significant impact'' on a substantial number of small entities if any

of the following criteria are met: Annual gross revenues are reduced by

more than 5 percent, total costs of production are increased by more

than 5 percent, compliance costs for small entities are at least 10

percent higher than compliance costs as a percent of sales for large

entities, or the action results in a cessation of business operations

of 2 percent or more of small entities affected by the action. None of

the aforementioned criteria were met by this action. The formalized

list of fisheries currently in the EEZ and gears within those fisheries

does not change any costs or revenues for members of the fishing

industry. The new procedure that will be required before a fisherman

may participate in a new fishery or employ a new gear in an existing

fishery will affect only that small group of

[[Page 30458]]

individuals (about 20 per year) having to comply with the notification

procedure because of reporting requirements associated with it. As a

result, a regulatory flexibility analysis was not prepared for this

action. Any future rule prohibiting or restricting use of gear or

prosecution of a fishery will be analyzed in accordance with the RFA.

This rule contains a collection-of-information requirement subject

to the Paperwork Reduction Act (PRA). This collection-of-information

requirement has been submitted to OMB for approval. Public reporting

burden for this collection of information is estimated to average 1

hour per response for Council notification of entry into a new fishery

or use of a new gear in a current fishery, including the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information.

Public comment is sought regarding: Whether this proposed

collection of information is necessary for the proper performance of

the functions of the agency, including whether the information has

practical utility; the accuracy of the burden estimate; ways to enhance

the quality, utility, and clarity of the information to be collected;

and ways to minimize the burden of collection of information, including

through the use of automated collection techniques or other forms of

information technology. Send comments regarding these burden estimates

or any other aspect of this collection of information, including

suggestions for reducing this burden, to NMFS and OMB (see ADDRESSES).

Notwithstanding any other provision of law, no person is required

to respond to, nor shall a person be subject to a penalty for failure

to comply with, a collection of information subject to the requirements

of the PRA unless that collection of information displays a currently

valid OMB control number.

List of Subjects in 50 CFR Part 600

Administrative practice and procedure, Confidential business

information, Fisheries, Fishing, Fishing vessels, Foreign relations,

Intergovernmental relations, Penalties, Reporting and recordkeeping

requirements, Statistics.

Dated: May 27, 1998.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 600 is

proposed to be amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

1. The authority citation for part 600 continues to read as

follows:

Authority: 5 U.S.C. and 16 U.S.C. 1801 et seq.

2. In Sec. 600.10, the definition for ``trawl'' is revised and new

definitions for ``allowable chemical,'' ``bandit gear,'' ``barrier

net,'' ``bully net,'' ``buoy gear,'' ``dip net,'' ``dredge,''

``handline,'' ``hoop net,'' ``lampara net,'' ``longline,'' ``pair

trawl,'' ``powerhead,'' ``purse seine,'' ``rod and reel,'' ``seine,''

``slurp gun,'' ``snare,'' ``spear,'' ``tangle net dredge,'' ``trammel

net,'' and ``trap,'' are added in alphabetical order to read as

follows:

Sec. 600.10 Definitions.

* * * * *

Allowable chemical means a substance, generally used to immobilize

marine life so it can be captured alive, that, when introduced into the

water, does not take Gulf and South Atlantic prohibited coral and is

allowed by Florida for the harvest of tropical fish.

* * * * *

Bandit gear means vertical hook and line gear with rods that are

attached to the vessel when in use. Lines are retrieved by manual,

electric, or hydraulic reels.

Barrier net means a small-mesh net used to capture coral reef

fishes.

Bully net means a circular frame attached at right angles to a pole

and supporting a conical bag of webbing.

Buoy gear means fishing gear consisting of a float and one or more

weighted lines suspended therefrom, generally long enough to reach the

bottom. A hook or hooks are on the lines at or near the end. The float

and line(s) drift freely and are retrieved periodically to remove catch

and rebait hooks.

* * * * *

Dip net means a small mesh bag, sometimes attached to a handle,

shaped and framed in various ways. It is operated by hand or partially

by mechanical power to capture the fish by a scooping motion.

* * * * *

Dredge means a gear consisting of a mouth frame attached to a

holding bag constructed of metal rings or mesh.

* * * * *

Handline means fishing gear that is set and pulled by hand and

consists of one vertical line to which may be attached leader lines

with hooks.

* * * * *

Hoop net means a frame, circular or otherwise, supporting a shallow

bag of webbing and suspended by a line and bridles.

* * * * *

Lampara net means a surround net with the sections of netting made

and joined to create bagging. It is hauled with purse rings.

Longline means a line that is deployed horizontally and to which

gangions and hooks or pots are attached. Longlines can be stationary,

anchored, or buoyed lines that may be hauled manually, electrically, or

hydraulically.

* * * * *

Pair trawl means a cone or funnel-shaped net that is towed through

the water by two boats simultaneously.

* * * * *

Powerhead means any device with an explosive charge, usually

attached to a spear gun, spear, pole, or stick, that may or may not

fire a projectile upon contact.

* * * * *

Purse seine means a floated and weighted encircling net that is

closed by means of a drawstring threaded through rings attached to the

bottom of the net.

* * * * *

Rod and reel means a hand-held (including rod holder) fishing rod

with a manually or electrically operated reel attached.

* * * * *

Seine means a net with a small conical bag and long narrow wings,

that is rigged with floats and weights.

Slurp gun means tube-shaped suction device that operates somewhat

like a syringe by sucking up the fish into a holding bag.

Snare means a device consisting of a pole to which is attached a

line forming at its end a loop with a running knot that tightens around

the fish when the line is pulled.

Spear means a sharp, pointed, or barbed instrument on a shaft.

Spears can be operated manually or shot from a gun or sling.

* * * * *

Tangle net dredge means dredge gear consisting of weights and

flimsy netting that hangs loosely in order to immediately entangle

fish.

* * * * *

Trammel net means a net consisting of two or more panels of

netting, suspended vertically in the water column by a common float

line and a

[[Page 30459]]

common weight line. One panel of netting has a larger mesh size than

the other(s) in order to entrap fish in a pocket.

* * * * *

Trap means a portable, enclosed device with one or more gates or

entrances and one or more lines attached to surface floats. Also called

a pot.

Trawl means a cone or funnel-shaped net that is towed through the

water.

* * * * *

3. In Sec. 600.725, paragraph (v) is added to read as follows:

Sec. 600.725 General prohibitions.

* * * * *

(v) The use of any gear or participation in a fishery not on the

following list of authorized fisheries and gear is prohibited after

[date 180 days after the date of publication of the final rule]. Listed

gear can only be used in a manner that is consistent with existing laws

or regulations. The list of fisheries and allowable gear does not, in

any way, alter or supersede any definitions or regulations contained

elsewhere in this chapter. A person or vessel is prohibited from

engaging in fishing or employing fishing gear when such fishing or gear

is prohibited or restricted by regulation under an FMP or under other

applicable law. However, after [date 180 days after the date of

publication of the final rule], an individual fisherman may notify the

appropriate Council, or the Assistant Administrator in the case of

Atlantic highly migratory species, of the intent to use a gear or

participate in a fishery not already on this list. Ninety days after

such notification, the individual may use the gear or participate in

that fishery unless regulatory action is taken to prohibit the use of

the gear or participate in the fishery (e.g., through emergency or

interim regulations). The list of authorized fisheries and gear is as

follows:

------------------------------------------------------------------------

Fishery Allowable gear types

------------------------------------------------------------------------

New England Fishery Management Council (NEFMC)

------------------------------------------------------------------------

Atlantic Sea Scallops Fishery Management Plan

FMP:

A. Dredge fishery........................ A. Dredge.

B. Trawl fishery......................... B. Trawl.

Atlantic Salmon FMP.......................... No harvest/possession in

the EEZ.

Northeast (NE) Multispecies FMP:

A. NE Multispecies Sink Gillnet.......... A. Gillnet.

B. North Atlantic bottom trawl........... B. Trawl.

C. Groundfish hook and line.............. C. Longline, handline.

D. Mixed species trap/pot................ D. Trap/pot.

E. Dredge fishery........................ E. Dredge.

F. Seine fishery......................... F. Seine.

G. Recreational fishery.................. G. Rod and reel,

handline, spear.

American Lobster FMP:

A. Lobster pot/trap...................... A. Pot, trap.

B. North Atlantic bottom trawl........... B. Trawl.

C. Coastal/inshore gillnet............... C. Gillnet.

D. Dredge fishery........................ D. Dredge.

E. Recreational fishery.................. E. Pot, trap.

Atlantic Herring Preliminary Fishery

Management Plan:

A. Coastal herring trawl................. A. Trawl.

B. Atlantic herring purse seine.......... B. Purse seine.

C. Coastal/inshore gillnet............... C. Gillnet.

D. Herring pair trawl fishery............ D. Pair trawl.

E. Recreational fishery.................. E. Hook and line.

Dogfish Fishery (Non-FMP):

A. Gillnet fishery....................... A. Gillnet.

B. Trawl fishery......................... B. Trawl.

Atlantic Bluefish (FMP managed by MAFMC):

A. Pelagic longline/hook and line........ A. Longline, handline.

B. Seine fishery......................... B. Purse seine, seine.

C. Mixed species pot/trap fishery........ C. Pot, trap.

D. Bluefish, croaker, flounder trawl..... D. Trawl.

E. Pelagic drift gillnet fishery......... E. Gillnet.

F. Dredge fishery........................ F. Dredge.

G. Recreational fishery.................. G. Rod and reel,

handline, trap, pot.

Atlantic Mackerel, Squid and Butterfish

Fishery (FMP managed by the MAFMC):

A. Mackerel, squid, butterfish trawl..... A. Trawl.

B. Pelagic drift gillnet................. B. Gillnet.

C. Pelagic longline/hook and line........ C. Longline, handline.

D. Purse seine fishery................... D. Purse seine.

E. Mixed species pot/trap fishery........ E. Pot, trap.

F. Dredge fishery........................ F. Dredge.

G. Recreational fishery.................. G. Rod and reel,

handline, pot.

Atlantic Menhaden Purse Seine (Non-FMP)...... Purse seine.

Atlantic Halibut Fishery (Non-FMP)........... Longline.

Weakfish Fishery (Non-FMP):

A. Commercial fishery.................... A. Trawl, gillnet, hook

and line.

B. Recreational fishery.................. B. Hook and line.

Atlantic Mussel/Sea Urchin Dredge Fishery Dredge.

(Non-FMP).

Atlantic Skate Fishery:

A. Trawl fishery......................... A. Trawl.

B. Gillnet fishery....................... B. Gillnet.

[[Page 30460]]

Crab Fishery (Non-FMP)....................... Pot.

Northern Shrimp Fishery:

A. Shrimp trawl fishery.................. A. Trawl.

B. Shrimp pot fishery.................... B. Pot.

Monkfish Fishery (Non-FMP):

A. Trawl fishery......................... A. Trawl.

B. Gillnet fishery....................... B. Gillnet.

Summer Flounder, Scup, Black Sea Bass Fishery

(FMP managed by MAFMC):

A. Bluefish, croaker, flounder trawl..... A. Trawl.

B. Pelagic longline/hook and line........ B. Longline, handline.

C. Mixed species pot/trap fishery........ C. Pot, trap.

D. Pelagic drift gillnet fishery......... D. Gillnet.

E. Recreational fishery.................. E. Rod and reel,

handline, pot, trap.

------------------------------------------------------------------------

Mid-Atlantic Fishery Management Council (MAFMC)

------------------------------------------------------------------------

Summer Flounder, Scup, Black Sea Bass FMP:

A. Bluefish, croaker, flounder trawl..... A. Trawl.

B. Pelagic longline/hook and line........ B. Longline, handline.

C. Mixed species pot/trap fishery........ C. Pot, trap.

D. Pelagic drift gillnet fishery......... D. Gillnet.

E. Recreational fishery.................. E. Rod and reel,

handline, pot, trap.

Atlantic Bluefish FMP:

A. Bluefish, Croaker, Flounder trawl..... A. Trawl.

B. Pelagic longline/hook and............. B. Longline, handline.

C. Mixed species pot/trap fishery........ C. Pot, trap.

D. Pelagic drift gillnet fishery......... D. Gillnet.

E. Seine fishery......................... E. Purse seine, seine.

F. Dredge fishery........................ F. Dredge.

G. Recreational fishery.................. G. Rod and reel,

handline, trap, pot.

Atlantic Mackerel, Squid, and Butterfish FMP:

A. Mackerel, Squid, Butterfish trawl..... A. Trawl.

B. Pelagic drift gillnet................. B. Gillnet.

C. Pelagic longline/hook and............. C. Longline, handline.

D. Purse seine fishery................... D. Purse seine.

E. Mixed species pot/trap fishery........ E. Pot, trap.

F. Dredge fishery........................ F. Dredge.

G. Recreational fishery.................. G. Rod and reel,

handline, pot.

Surf Clam/Ocean Quahog FMP................... Dredge.

Atlantic Sea Scallop Fishery (FMP managed by

NEFMC):

A. Dredge fishery........................ A. Dredge.

B. Trawl fishery......................... B. Trawl.

Atlantic Menhaden Purse Seine Fishery (Non- Purse seine.

FMP).

Northern Shrimp Trawl (Non-FMP).............. Trawl.

American Lobster Fishery (FMP managed by Pot, trap.

NEFMC).

Weakfish fishery (Non-FMP):

A. Commercial fishery.................... A. Trawl, gillnet, hook

and line.

B. Recreational fishery.................. B. Hook and line.

Mixed Species Trawl (Non-FMP)................ Trawl.

Whelk Fishery (Non-FMP):

A. Trawl fishery......................... A. Trawl.

B. Pot/trap fishery...................... B. Pot/trap.

Monkfish Trawl (Non-FMP)..................... Trawl.

Coastal Gillnet Fishery (Non-FMP)............ Gillnet.

Recreational Fishery (Non-FMP)............... Rod and reel, handline.

------------------------------------------------------------------------

South Atlantic Fishery Management Council

------------------------------------------------------------------------

Golden Crab FMP.............................. Trap.

Atlantic Red Drum FMP........................ No harvest/possession in

EEZ.

Coral and Coral Reef FMP:

A. Octocoral commercial fishery.......... Hand harvest only.

B. Live rock aquaculture................. Hand harvest only.

C. Octocoral recreational fishery........ Hand harvest only.

South Atlantic Shrimp FMP.................... Trawl.

South Atlantic Snapper-Grouper FMP:

A. Commercial fishery.................... A. Longline, rod and

reel, bandit gear,

handline, spear.

B. Black sea bass trap/pot............... B. Pot, trap.

C. Wreckfish fishery..................... C. Rod and reel, bandit

gear, handline.

D. Recreational fishery.................. D. Handline, rod and

reel, pot, trap, bandit

gear, slurp gun, spear,

powerhead.

South Atlantic Spiny Lobster FMP:

A. Commercial fishery.................... A. Trap, pot, dip net,

bully net, snare.

[[Page 30461]]

B. Recreational fishery.................. B. Trap, pot, dip net,

bully net, snare.

South Atlantic Coastal Migratory Pelagics

FMP:

A. Commercial Spanish mackerel fishery... A. Handline, rod and

reel, bandit gear,

gillnet, cast net.

B. Commercial King mackerel fishery...... B. Handline, rod and

reel, bandit gear.

C. Other commercial coastal migratory C. Longline, handline,

pelagics. rod and reel, bandit

gear.

D. Recreational fishery.................. D. Bandit gear, rod and

reel, handline.

Atlantic Mackerel, Squid, and................ Trawl.

Butterfish Trawl (Non-FMP)...................

Weakfish Fishery (Non-FMP):

A. Commercial fishery.................... A. Trawl, gillnet, hook

and line.

B. Recreational fishery.................. B. Hook and line.

Whelk Trawl Fishery (non-FMP)................ Trawl.

Marine Life Aquarium Fishery (Non-FMP)....... Dip net, slurp gun,

barrier net, allowable

chemical.

Calico Scallops Trawl (non-FMP).............. Trawl.

Bluefish, Croaker, Flounder Trawl (Non-FMP).. Trawl.

Recreational Fishery (Non-FMP)............... Handline, bandit gear,

rod and reel.

------------------------------------------------------------------------

Gulf of Mexico Fishery Management Council

------------------------------------------------------------------------

Gulf of Mexico Red Drum FMP.................. No harvest/possession in

EEZ.

Coral Reef FMP:

A. Commercial fishery.................... A. Hand harvest only.

B. Recreational fishery.................. B. Hand harvest only.

Gulf of Mexico Reef Fish FMP:

A. Snapper-Grouper reef fish longline/ A. Longline, handline,

hook and line. bandit gear, rod and

reel, buoy gear.

B. Pot/trap reef fish.................... B. Pot, trap.

C. Other commercial fishery.............. C. Spear, powerhead, cast

net, trawl.

D. Recreational fishery.................. D. Spear, powerhead,

bandit gear, handline,

rod reel, cast net.

Gulf of Mexico Shrimp FMP:

A. Gulf of Mexico shrimp trawl........... A. Trawl.

B. Recreational fishery.................. B. Trawl.

Gulf of Mexico Coastal Migratory Pelagics

FMP:

A. Large pelagics longline............... A. Longline.

B. King/Spanish mackerel gillnet fishery. B. Gillnet.

C. Pelagic hook and line................. C. Bandit gear, handline,

rod and reel.

D. Pelagic species purse seine........... D. Purse seine.

E. Recreational fishery.................. E. Bandit gear, handline,

rod and reel, spear.

Gulf of Mexico Spiny Lobster FMP:

A. Spiny lobster pot/trap fishery........ A. Trap, pot.

B. Dip net fishery....................... B. Dip net, bully net,

hoop net.

C. Recreational fishery.................. C. Dip net, bully net,

pot, trap, snare.

Stone Crab FMP:

A. Trap/pot crab fishery................. A. Trap, pot.

B. Recreational fishery.................. B. Trap, pot.

Mullet Fishery (Non-FMP):

A. Trawl fishery......................... A. Trawl.

B. Gillnet fishery....................... B. Gillnet.

C. Pair trawl fishery.................... C. Pair trawl.

D. Recreational fishery.................. D. Bandit gear, handline,

rod and reel.

Inshore Coastal Gillnet (Non-FMP)............ Gillnet.

Golden Crab Fishery (Non-FMP)................ Trap.

Octopus Fishery (Non-FMP).................... Trap.

Marine Life Aquarium Fishery (Non-FMP)....... Dip net, slurp gun,

barrier net, allowable

chemical.

Coastal Herring Trawl (Non-FMP).............. Trawl.

Butterfish Trawl (Non-FMP)................... Trawl.

Gulf of Mexico Groundfish (Non-FMP):

A. Commercial fishery.................... A. Trawl, purse seine,

gillnet.

B. Recreational fishery.................. B. Hook and line.

Gulf of Mexico Menhaden Purse (Non-FMP)...... Purse seine.

Sardine Purse Seine (Non-FMP)................ Purse seine.

Recreational fishery (Non-FMP)............... Bandit gear, handline,

rod and reel,

spearfishing gear, bully

net, gillnet, dip net,

longline powerhead,

seine, slurp gun, trap,

trawl, harpoon.

------------------------------------------------------------------------

Caribbean Fishery Management Council

------------------------------------------------------------------------

Caribbean Spiny Lobster FMP:

[[Page 30462]]

A. Trap/pot fishery...................... A. Trap/pot.

B. Dip net fishery....................... B. Dip net.

C. Entangling net fishery................ C. Gillnet, trammel net.

D. Recreational fishery.................. D. Dip net, trap, pot,

gillnet, trammel net.

Caribbean Shallow Water Reef Fish FMP:

A. Longline/hook and line fishery........ A. Longline, hook and

line.

B. Trap/pot fishery...................... B. Trap, pot.

C. Entangling net fishery................ C. Gillnet, trammel net.

D. Recreational fishery.................. D. Dip net, handline, rod

and reel, slurp gun,

spear.

Coral and Reef Resources FMP:

A. Commercial fishery.................... A. Dip net, slurp gun.

B. Recreational fishery.................. B. Dip net, slurp gun.

Queen Conch FMP:

A. Commercial fishery.................... A. Hand harvest only.

B. Recreational fishery.................. B. Hand harvest only.

Caribbean Pelagics (Non-FMP):

A. Pelagics drift gillnet................ A. Gillnet.

B. Pelagics longline/hook and line....... B. Longline/hook and

line.

C. Recreational fishery.................. C. Spear, handline,

longline.

------------------------------------------------------------------------

Pacific Fishery Management Council

------------------------------------------------------------------------

Washington, Oregon, and California FMP:

A. Salmon set gillnet fishery............ A. Gillnet.

B. Salmon hook and line fishery.......... B. Hook and line.

C. Trawl fishery......................... C. Trawl.

D. Recreational fishery.................. D. Rod and reel.

West Coast Groundfish FMP:

A. Pacific groundfish trawl.............. A. Trawl.

B. Set gillnet fishery................... B. Gillnet.

C. Groundfish longline/setline........... C. Longline.

D. Groundfish handline/hook and line..... D. Handline, hook and

line.

E. Groundfish pot/trap fishery........... E. Pot, trap.

F. Recreational fishery.................. F. Rod and reel,

handline, spear, hook

and line.

Northern Anchovy FMP......................... Purse seine, lampara net.

Angel Shark, White Croaker, California Gillnet.

Halibut, White Sea Bass, Pacific Mackerel

Large-Mesh Set Net Fishery (Non-FMP).

Thresher Shark/ Swordfish Drift Gillnet (Non- Gillnet.

FMP).

Pacific Shrimp/Prawn (Non-FMP):

A. Pot/trap fishery...................... A. Pot/trap.

B. Trawl fishery......................... B. Trawl.

Lobster, Rock Crab Pot/Trap Fishery (Non-FMP) Pot, trap.

Pacific Halibut Longline/Setline (Non-FMP)... Longline.

Shark/Bonito Longline/Setline (Non-FMP)...... Longline.

Dungeness Crab Pot/Trap (Non-FMP)............ Pot, trap.

Hagfish Trap/Pot Fishery (Non-FMP)........... Trap, pot.

Pacific Albacore, Other Tuna Hook and Line Hook and line.

Fishery (Non-FMP).

Pacific Swordfish Harpoon (Non-FMP).......... Harpoon.

Pacific Scallop Dredge (Non-FMP)............. Dredge.

Pacific Yellowfin, Skipjack, Tuna, Purse Purse seine.

Seine (Non-FMP).

Market Squid Purse Seine, Fishery (Non-FMP).. Purse seine.

Pacific Sardine, Pacific, Mackerel, Pacific Purse seine.

Saury, Pacific, Bonito Purse Seine Fishery,

(Non-FMP).

Finfish and Shellfish Live, Trap, Hook and Trap, handline, hook and

line/Handline (Non-FMP). line.

Recreational Fishery......................... Spear, trap, handline,

pot, hook and line, rod

and reel.

------------------------------------------------------------------------

North Pacific Fishery Management Council

------------------------------------------------------------------------

Alaska Scallop FMP........................... Dredge.

Bering Sea (BS) and Aleutian Islands (AI)

King and Tanner Crab FMP:

A. Alaskan crustacean crab pot........... A. Pot

B. Recreational fishery.................. B. Pot.

BS and AI Groundfish FMP:

A. Groundfish trawl fishery.............. A. Trawl.

B. Bottomfish hook and line, handline.... B. Hook and line,

handline.

C. Longline fishery...................... C. Longline

D. BS and AI and Gulf of Alaska (GOA) pot/ D. Pot, trap.

trap fishery.

E. Recreational fishery...................... E. Handline, rod and

reel, hook and line,

pot, trap.

Pacific Halibut (Non-FMP):

A. Pacific halibut handline/hook and line A. Hook and line,

handline.

[[Page 30463]]

B. Pacific halibut longline/ setline..... B. Longline.

C. Recreational fishery.................. C. Handline, rod and

reel, hook and line.

Alaska High Seas Salmon FMP:.............

A. Alaska salmon hook and line........... A. Hook and line.

B. Alaska salmon gillnet fishery......... B. Gillnet.

C. Alaska salmon purse seine............. C. Purse seine.

D. Recreational fishery.................. D. Handline, rod and

reel, hook and line.

Alaska Pair Trawl (Non-FMP).................. Pair trawl.

Alaska Finfish Otter/Beam Trawl (Non-FMP).... Trawl.

Octopus/Squid Purse Seine (Non-FMP).......... Purse seine.

Finfish Purse Seine (Non-FMP)................ Purse seine.

Octopus/Squid Longline (Non-FMP)............. Longline.

Finfish Handline/Hook and Line (Non-FMP)..... Handline, hook and line.

Octopus/Squid Handline (Non-FMP)............. Handline.

Recreational Fishery (Non-FMP)............... Handline, rod and reel,

hook line.

------------------------------------------------------------------------

Western Pacific Fishery Management Council

------------------------------------------------------------------------

Western Pacific Crustacean FMP:

A. Lobster/crab/shrimp trap fishery...... A. Trap.

B. Crab hoop net fishery................. B. Hoop net.

C. Shrimp trawl fishery.................. C. Trawl.

D. Recreational fishery.................. D. Hoop net, trap.

Western Pacific Precious Coral FMP Tangle Net Tangle net dredge.

Dredge Fishery.

Western Pacific Bottomfish/Seamount

Groundfish FMP:

A. Bottomfish handline fishery........... A. Handline.

B. Hook and line/rod and reel............ B. Hook and line, rod and

reel.

C. Longline fishery...................... C. Longline.

D. Trap/pot fishery...................... D. Trap/pot.

E. Spear fishery......................... E. Spear, powerhead.

F. Recreational fishery.................. Handline, rod and reel,

spear, powerhead, pot,

trap, hook and line.

Western Pacific Pelagics FMP:

A. Swordfish, tuna, billfish Mahi mahi, A. Longline.

wahoo, shark longline/setline fishery.

B. Tuna handline/hook and line........... B. Handline, hook and

line.

C. Pole and line fishery................. C. Rod and reel,

handline, hook and line.

D. Purse seine fishery................... D. Purse seine.

E. Dip net/hoop net fishery.............. E. Dip net, hoop net.

F. Spear fishery......................... F. Spear, powerhead.

Gillnet Fishery (Non-FMP).................... Gillnet.

Recreational Fishery (Non-FMP)............... Rod and reel, handline,

hook and line.

------------------------------------------------------------------------

Secretary of Commerce

------------------------------------------------------------------------

Atlantic Swordfish FMP:

A. Hook and line fishery................. A. Rod and reel,

handline.

B. Longline fishery...................... B. Longline.

C. Drift gillnet fishery................. C. Gillnet.

D. Harpoon fishery....................... D. Harpoon.

Atlantic Sharks FMP:

A. Hook and line fishery................. A. Rod and reel,

handline, bandit gear.

B. Longline fishery...................... B. Longline.

C. Drift gillnet fishery................. C. Gillnet.

D. Harpoon fishery....................... D. Harpoon.

Atlantic Billfish FMP (Recreational only):

A. Hook and line fishery................. A. Rod and reel,

handline, bandit gear.

B. Harpoon fishery....................... B. Harpoon.

Atlantic Tunas (Non-FMP):

A. Hook and line fishery................. A. Rod and reel,

handline, bandit gear.

B. Purse seine fishery................... B. Purse seine.

C. Longline fishery...................... C. Longline.

D. Harpoon fishery....................... D. Harpoon.

E. Recreational fishery.................. E. Rod and reel, bandit

gear, harpoon, handline.

------------------------------------------------------------------------

4. Section 600.747 is added to read as follows:

Sec. 600.747 Guidelines and procedures for determining new fisheries

and gear.

(a) General. Section 305(a) of the Magnuson-Stevens Act requires

the Secretary to prepare a list of all fisheries under the authority of

each Council, or the Director in the case of Atlantic highly migratory

species, and all gear used in such fisheries. This section contains

guidelines in paragraph (b) for determining when fishing gear or a

fishery is sufficiently different from

[[Page 30464]]

those listed in Sec. 600.725(v) as to require notification of a Council

or the Director in order to use the gear or participate in the unlisted

fishery. This section also contains procedures in paragraph (c) for

notification of a Council or the Director of potentially new fisheries

or gear, and for amending the list of fisheries and gear.

(b) Guidelines. The following guidance establishes the basis for

determining when fishing gear or a fishery is sufficiently different

from those listed to require notification of the appropriate Council or

the Director.

(1) The initial step in the determination of whether a fishing gear

or fishery is sufficiently different to require notification is to

compare the gear or fishery in question to the list of authorized

fisheries and gear in Sec. 600.725(v) and to the existing gear

definitions in Sec. 600.10.

(2) If the gear in question falls within the bounds of a definition

in Sec. 600.10 for an allowable gear type within that fishery, as

listed under section 600.725(v), then the gear is not considered

different, is considered allowable gear, and does not require

notification of the Council or Secretary 90 days before it can be used

in that fishery.

(3) If, for any reason, the gear is not consistent with a gear

definition for a listed fishery as described in paragraph (b)(2) of

this section, the gear is considered different and requires Council or

Secretarial notification as described in paragraph (c) of this section

90 days before it can be used in that fishery.

(4) If a fishery falls within the bounds of the list of authorized

fisheries and gear in Sec. 600.725(v) under the Council's or

Secretary's authority, then the fishery is not considered different, is

considered an allowable fishery and does not require notification of

the Council or Director before that fishery can occur.

(5) If a fishery is not already listed in the list of authorized

fisheries and gear in Sec. 600.725(v), then the fishery is considered

different and requires notification as described in paragraph (c) of

this section 90 days before it can occur.

(c) Procedures. If a gear or fishery does not appear on the list in

Sec. 600.725(v), or if the gear is different from that defined in

Sec. 600.10, the process for notification, and consideration by a

Council or the Director, is as follows:

(1) Notification. After [date 180 days from date of publication in

the Federal Register of the final rule], no person or vessel may employ

fishing gear or engage in a fishery not included on the list of

approved gear types in Sec. 600.725(v) without notifying the

appropriate Council or the Director at least 90 days before the

intended use of that gear.

(2) Notification procedures. (i) A signed return receipt for the

notice serves as adequate evidence of the date that the notification

was received by the appropriate Council or the Director, in the case of

Atlantic highly migratory species, and establishes the beginning of the

90-day notification period, unless required information in the

notification is incomplete.

(ii) The notification must include:

(A) Name, address, and telephone number of the person submitting

the notification.

(B) Description of the gear.

(C) The fishery or fisheries in which the gear is or will be used.

(D) A diagram and/or photograph of the gear, as well as any

specifications and dimensions necessary to define the gear.

(E) The season(s) in which the gear will be fished.

(F) The area(s) in which the gear will be fished.

(G) The anticipated bycatch species associated with the gear,

including protected species, such as marine mammals, sea turtles, sea

birds, or species listed as endangered or threatened under the ESA.

(H) How the gear will be deployed and fished, including the

portions of the marine environment where the gear will be deployed

(surface, midwater, and bottom).

(iii) Failure to submit complete and accurate information will

result in a delay in beginning the 90-day notification period. The 90-

day notification period will not begin until the information received

is determined to be accurate and complete.

(3) Action upon receipt of notification--(i) Species other than

Atlantic Highly Migratory Species. (A) Upon signing a return receipt of

the notification by certified mail regarding an unlisted fishery or

gear, a Council must immediately begin consideration of the

notification and send a copy of the notification to the appropriate

Regional Administrator.

(B) If the Council finds that the use of an unlisted gear or

participation in a new fishery would not compromise the effectiveness

of conservation and management efforts, it shall:

(1) Recommend to the RA that the list be amended;

(2) Provide rationale and supporting analysis, as necessary, for

proper consideration of the proposed amendment; and

(3) Provide a draft proposed rule for notifying the public of the

proposed addition, with a request for comment.

(C) If the Council finds that the proposed gear or fishery will be

detrimental to conservation and management efforts, it will recommend

to the RA that the authorized list of fisheries and gear not be

amended, that a proposed rule not be published, give reasons for its

recommendation of a disapproval, and may request NMFS to publish

emergency or interim regulations, and begin preparation of an FMP or

amendment to an FMP, if appropriate.

(D) After considering information in the notification and Council's

recommendation, NMFS will decide whether or not to publish a proposed

rule. If information on the new gear or fishery being considered

indicates it is likely that it will compromise conservation and

management efforts under the Magnuson-Stevens Act, and no additional

new information is likely to be gained from a public comment period,

then a proposed rule will not be published and NMFS will notify the

appropriate Council. In such an instance, NMFS will publish emergency

or interim regulations to prohibit or restrict use of the gear or

participation in the fishery. If NMFS determines that the proposed

amendment is not likely to compromise conservation and management

efforts under the Magnuson-Stevens Act, NMFS will publish a proposed

rule in the Federal Register with a request for public comment.

(ii) Atlantic Highly Migratory Species. (A) Upon signing a return

receipt of the notification by certified mail regarding an unlisted

fishery or gear for Atlantic highly migratory species (HMS), NMFS will

immediately begin consideration of the notification.

(B) Based on information in the notification and submitted by the

Council, NMFS will make a determination whether the use of an unlisted

gear or participation in an unlisted HMS fishery will compromise the

effectiveness of conservation and management efforts under the

Magnuson-Stevens Act. If it is determined that the proposed amendment

will not compromise conservation and management efforts, NMFS will

publish a proposed rule.

(C) If NMFS finds that the proposed gear or fishery will be

detrimental to conservation and management efforts in this initial

stage of review, it will not publish a proposed rule and notify the

[[Page 30465]]

applicant of the negative determination with the reasons therefore.

(4) Final determination and publication of a final rule. Following

public comment, NMFS will approve or disapprove the amendment to the

list of gear and fisheries.

(i) If approved, NMFS will publish a final rule in the Federal

Register and notify the applicant and the Council, if appropriate, of

the final approval.

(ii) If disapproved, NMFS will withdraw the proposed rule, notify

the applicant and the Council, if appropriate, of the disapproval;

publish emergency or interim regulations, if necessary, to prohibit or

restrict the use of gear or the participation in a fishery; and either

notify the Council of the need to amend an FMP or prepare an amendment

to an FMP in the case of Atlantic highly migratory species.

[FR Doc. 98-14735 Filed 6-3-98; 8:45 am]

BILLING CODE 3510-22-P