Fisheries of the Northeastern United States; Amendment 1 to the Fishery Management Plan for the Atlantic Bluefish Fishery

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 990713190-9190-01; I.D. 041599B]

RIN 0648-AH63

Fisheries of the Northeastern United States; Amendment 1 to the

Fishery Management Plan for the Atlantic Bluefish Fishery

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 1 (Amendment

1) to the Fishery Management Plan for the Atlantic Bluefish Fishery

(FMP). This proposed rule would: Implement permit and reporting

requirements for commercial bluefish vessels, dealers, and party/

charter boats; implement permit requirements for bluefish vessel

operators; define a Bluefish Monitoring Committee (Committee) that

would annually recommend the Mid-Atlantic Fishery Management Council

(Council) and the Atlantic States Marine Fisheries Commission

(Commission) the total allowable level of landings (TAL) and other

restrictions necessary to achieve the target fishing mortality rates

(F) specified in the FMP; establish a framework adjustment process;

establish a 9-year stock rebuilding schedule; establish a commercial

quota with allocations to states; and establish a recreational harvest

limit. Amendment 1 also addresses the new requirements of the Magnuson-

Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act),

as amended by the Sustainable Fisheries Act (SFA). Two primary examples

of these requirements are establishing a rebuilding plan to rebuild the

bluefish stock from an overfished condition and describing and

identifying essential fish habitat (EFH) for bluefish. The purpose of

this rule is to control fishing mortality of bluefish and rebuild the

stock.

DATES: Comments must be received on or before October 7, 1999.

ADDRESSES: Comments on this proposed rule should be sent to Patricia A.

Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1

Blackburn Drive, Gloucester, MA 01930. Mark the outside of the

envelope: ``Comments on Bluefish Plan Proposed Regulations.''

Comments on the collection-of-information requirements that would

be established by this proposed rule should be sent to the Office of

Information and Regulatory Affairs, Office of Management and Budget,

Washington, DC 20503 (Attention: NOAA Desk Officer) and to NMFS (See

ADDRESSES).

Copies of Amendment 1, its Regulatory Impact Review (RIR)/Initial

Regulatory Flexibility Analysis (IRFA) and the Final Environmental

Impact Statement (FEIS) are available from Daniel T. Furlong, Executive

Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal

Building, 300 South New Street, Dover, DE 19901-6790.

FOR FURTHER INFORMATION CONTACT: Myles Raizin, Fishery Policy Analyst,

978-281-9104.

SUPPLEMENTARY INFORMATION:

Background

The FMP was adopted by the Council and the Commission in October

1989 and approved by NMFS in March 1990. In 1996, the Council and the

Commission began development of Amendment 1 to address the need to

broaden the suite of management measures that could be used to reduce

bluefish fishing mortality.

The enactment of the SFA in October 1996 further prompted the

Council to take action to end overfishing on the bluefish stocks. The

23rd Northeast Stock Assessment Workshop, held in 1997, concluded that

the Atlantic bluefish stock was at a low level of abundance and was

overexploited. NMFS declared the bluefish stock to be overfished in its

1997 and 1998 Reports to Congress on the Status of Fisheries in the

United States.

NMFS published a notice of availability for Amendment 1 in the

Federal Register on April 30, 1999. The public comment period ended

June 29, 1999. All comments received through June 29, 1999, were

considered in the approval/disapproval decision on Amendment 1.

Amendment 1 was partially approved by NMFS on behalf of the Secretary

of Commerce on July 29, 1999. NMFS disapproved the de minimis provision

related to state allocations of the commercial quota, the description

and analysis of fishing communities, and the portion of the EFH section

assessing the effects of fishing gear on bluefish EFH. Copies of

Amendment 1 are available from the Council upon request (see

ADDRESSES).

Overfishing Definition and Rebuilding Schedule

Amendment 1 revises the definitions of overfishing and overfished

in the FMP to include an F and biomass (B) component, respectively.

Overfishing is defined as occurring when F is greater than the maximum

F threshold, specified as Fmsy = 0.4; and the bluefish stock

will be considered overfished when biomass is less than the minimum

biomass threshold, specified as 1/2Bmsy = 118.5 million

(mil) lb (53,750 mt). The long-term F target would be 90 percent of

Fmsy and the long-term B target would be Bmsy.

The Council plans in Amendment 1 to rebuild the bluefish stock to

Bmsy over a 9-year period. In the first 2 years of

rebuilding, F would remain at the current level, F=0.51, in years 3

through 5 it would be reduced to F=0.41, and in years 6 through 9 it

would be reduced to F=0.31. Once rebuilding is achieved, F will be set

at F=0.36, and continue to be that value as long as the stock is not

overfished.

Annual Adjustment Process and Committee

This rule would define the composition of a Bluefish Monitoring

Committee as staff representatives from the Mid-Atlantic, New England,

and South Atlantic Fishery Management Councils, the NMFS Northeast

Regional Office, the NMFS Northeast Fisheries Science Center, and the

Commission. The Committee would review annually the best available data

and recommend to the Council and the Commission commercial (annual

quota, minimum fish size, and minimum mesh size) and recreational

(possession and size limits, and seasonal closures) measures designed

to assure that the target F for bluefish for that given year is not

exceeded.

EFH for Bluefish

Section 2.2.2.2 of Amendment 1 describes and identifies EFH for

bluefish with large areas of oceanic waters identified as EFH for eggs

and larvae, and major estuaries from Maine through Florida identified

as EFH for juveniles (generally North Atlantic estuaries from June

through October, Mid-Atlantic estuaries from May through October, and

South Atlantic estuaries from March through December). For adults, EFH

in estuaries is similar to that of juveniles on a seasonal basis, and

over a wide area of the continental shelf throughout the

[[Page 45939]]

year. The amendment does not identify any habitat areas of particular

concern for bluefish. While bluefish are pelagic and wide ranging,

there is some linkage between juvenile bluefish and submerged aquatic

vegetation (SAV). Certain estuarine fishing gear effects SAV and

bluefish EFH. The effects of this gear are not analyzed by Amendment 1;

therefore, NMFS has disapproved this portion of the amendment.

Recreational Harvest Limit and Commercial Quotas

This proposed rule would establish a procedure to specify a TAL

divided between the recreational and commercial fisheries. The TAL

would be set annually, based on the F values specified in the

rebuilding schedule, and a target F=0.36, once rebuilding is achieved.

The recreational fishery would have a harvest limit of 83 percent of

the TAL, and the commercial fishery would have a quota of 17 percent of

the TAL. These percentages of the TAL are based on the average catch

composition of the two fisheries from 1981 through 1989. The commercial

quota would be distributed to the states based on their percentage

share of commercial landings during this time period as designated in

Table 48 of Amendment 1 (See also Sec. 648.160(e)(1) of this rule).

Amendment 1 provides a procedure where the commercial TAL could be set

higher than 17 percent, up to 10.5 mil lb (4.8 mil kg) (the average

commercial landings for the period 1991-1996), if the recreational

fishery is not likely to land its annual allocation, based on a

projection of the most recently available recreational landings data,

and provided that the combination of the projected recreational

landings and commercial quota does not exceed the TAL. The Council

provided this procedure to ensure that commercial landings would not be

unduly constrained under low allowable harvest levels and

proportionally low recreational landings.

1999 Allocations for the Commercial Fishery

States participating in the bluefish fishery have already taken

action for 1999 in accordance with the rebuilding schedule of Amendment

1 through the Commission and their own existing administrative programs

for managing quotas in the commercial fishery for bluefish. The TAL for

the bluefish fishery for 1999 is 36.84 mil lb (16.71 mil kg), with 5.93

mil lb (2.69 mil kg) (17 percent) going to the commercial fishery, and

30.91 mil lb (14.02 mil kg) (83 percent) going to the recreational

fishery. There are not enough data for the 1999 recreational fishery at

this time to warrant increasing the allocation to the commercial

fishery above 17 percent (as discussed in the aforementioned procedure

for increasing an annual commercial TAL above 17 percent up to 10.5 mil

lb (4.8 mil kg)). The proposed state-by-state allocation of the

commercial quota for 1999, based on the percentage share, is as

follows:

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

State Pounds Kilograms

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

Maine......................................... 39,802 18,054

New Hampshire................................. 24,675 11,193

Massachusetts................................. 399,876 181,384

Rhode Island.................................. 405,316 183,851

Connecticut................................... 75,390 34,197

New York...................................... 618,275 280,450

New Jersey.................................... 882,078 400,110

Delaware...................................... 111,817 50,720

Maryland...................................... 178,712 81,064

Virginia...................................... 707,240 320,804

North Carolina................................ 1,908,731 865,800

South Carolina................................ 2,095 950

Georgia....................................... 566 257

Florida....................................... 598,900 271,661

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

Totals.................................... 5,953,473 2,700,495

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

Framework Adjustment Process

In addition to the annual review and modifications to management

measures associated with the Committee process, under Amendment 1 and

the proposed rule, the Council could add or modify management measures

through a streamlined public review process called a framework

adjustment. As such, management measures that have been identified in

the plan could be implemented or adjusted at any time during the year

following consideration of the measures and associated analyses during

at least two Council meetings. The recommended management measures then

could be implemented through a final rule without first publishing a

proposed rule. The framework process would allow the Council to

consider gear restrictions, minimum and maximum fish size, permitting

restrictions, changes in the recreational possession limit,

recreational and commercial seasons, closed areas to address

overfishing if it is deemed necessary in the future, description and

identification of essential fish habitat (EFH) and fishing gear

management measures that impact EFH, and description and identification

of habitat areas of particular concern.

Permit and Reporting Requirements

This rule proposes to add bluefish permit and reporting

requirements that mirror similar requirements for other Northeast

fisheries. These measures include new permitting requirements for

Federal commercial bluefish vessels, bluefish charter and party boats,

bluefish dealers, and bluefish vessel operators, and new reporting

requirements for bluefish dealers and owners or operators of commercial

bluefish vessels and bluefish charter and party boats. In addition to

logbook reporting, dealers would be required to participate in the

Northeast Interactive Voice Reporting (IVR) system to assure timely

reports for purposes of quota monitoring.

Implementation of a commercial bluefish vessel permitting system

represents a modification of the present system where individuals, and

not vessels, are issued a permit to sell bluefish. Under the current

bluefish regulations, any person selling a bluefish harvested from the

exclusive economic zone is identified as a commercial fisherman and

must have a commercial fishing permit issued by a state or by NMFS that

allows the sale of bluefish (i.e., the individual is licensed). The new

management measure would allow the sale of bluefish harvested in

Federal waters only from vessels issued a Federal permit. The Council

believes that the bulk of the bluefish that enters the market is

harvested by commercial vessels. However, at Council and committee

meetings, it has been noted that certain individuals, such as those who

fished from a vessel they did not own or operate and then sold their

catch, would be affected by the changeover to a vessel permit. The

individuals would be subject to the recreational possession limit and

would no longer be able to sell bluefish.

Management Measure Returned to the Council

Pursuant to section 304(b)(1)(B) of the Magnuson-Stevens Act, NMFS

returned to the Council the de minimus provision contained in Amendment

1 and disapproved the provision on July 29, 1999. NMFS determined that

this measure is inconsistent with national standard 1 of the Magnuson-

Stevens Act, which requires that management measures prevent

overfishing. This provision lacks any clear obligation on the part of

the de minimus state to close its commercial bluefish fishery once its

quota is harvested and could result in overfishing of the bluefish

stock. If de minimus status does not, at the very least, require a

state to impose landing constraints, the provision may encourage owners

of vessels that have not traditionally landed in that state to land

amounts of bluefish much greater than they could land in their home

port states. This could result in the state's de minimus quota being

rapidly exceeded

[[Page 45940]]

and compound the overfishing situation if a de minimus state is not

required to close its fishery when its de minimus quota is harvested.

NMFS described its determination on this measure in a letter that it

sent to the Council. As indicated in section 304(b)(2) of the Magnuson-

Stevens Act, the Council may revise this measure and submit it to the

Secretary of Commerce for reevaluation under section 304(b)(1) of the

Magnuson-Stevens Act.

Classification

NMFS determined on July 29, 1999, that the amendment that this rule

would implement is consistent with the Magnuson-Stevens Act and other

applicable laws, with the exception of the de minimus provision, the

fishing communities section, and the portion of the EFH section dealing

with the effect of fishing gear on bluefish EFH. NMFS, in making that

determination, took into account the data, views, and comments received

on Amendment 1 through June 29, 1999.

The Council prepared an initial regulatory flexibility analysis

(IRFA) that describes the impact this proposed rule, if adopted, would

have on small entities. Reasons why the action is considered, as well

as the objectives and legal basis of the rule are described in the

preamble to this rule and are not repeated here. The analyses of the

impacts on small entities attributable to the preferred and other

alternative management measures found in Amendment 1 are discussed

below. Since the final rule implementing Amendment 1 would not become

effective until the fall of 1999, this summary discusses impacts to

small entities in the year 2000, the projected first full year under

the amendment. An assumption of constant prices is applied throughout

the summary. It is also assumed that the 2000 fishery will be similar

to 1997 in terms of commercial and recreational landings.

Impact of the Commercial Vessel Permit

NMFS recently completed an analysis of NMFS bluefish operator

permit holder files. In the full permit year of 1998, there were 1,126

Federal bluefish permits issued to individuals. The Federal individual

bluefish permit file was merged with the vessel owner database for

Federal permits by permit holder name to identify the number of Federal

bluefish individual permits associated with vessel ownership. It is

estimated that 190 permits held by individuals are associated with

vessel ownership. As such, these individuals would be allowed to

continue to sell bluefish caught from their vessels, as long as they

obtain a bluefish vessel permit. Over 32 percent (305) of the

individuals with no vessel status (936) claimed that 5-percent or more

of their annual income is derived from the sale of bluefish. Therefore,

the Council concluded that the proposed action could result in a

significant economic impact (result in a 5 percent or more revenue

loss) for a substantial (20 percent or more) number of small entities

(participants). It is unclear how many of these individuals would make

the required capital investment necessary to purchase a vessel, which

would allow them to apply for a bluefish vessel permit. NMFS seeks

public comment on this issue.

Also, it is possible that some of these individuals took party and

charter recreational trips with the sole purpose of landing bluefish to

be sold commercially. There is no indication that the implementation of

this measure would lead to any substantive decline in the demand for

party and charter boat trips. Anglers that fish from party and charter

boats fish for multiple species, and only a few anglers would take

recreational trips to target solely bluefish to be sold commercially.

The Council, in Amendment 1, acknowledges that since there have

been no mandatory reporting requirements in the past for this fishery,

it is not possible to determine the number of individuals holding

bluefish permits who actually land and sell bluefish. The individual

permit holders affected by this rule may include individuals who

exceeded the bag limit to stock their freezers or feed the poor in

their communities, for example. In addition, crew members of party

boats have supplemented their wages by selling bluefish under the

individual permit. Since arrangements between owner/operators and their

crew differ individually and by region, it is difficult to ascertain

the number of crew likely to be affected.

The Council assumed that individuals who were not registered as

owners of federally permitted vessels did not own a vessel and would

not qualify for a vessel permit under Amendment 1. However, many of

these individuals probably own vessels that are used for recreational

fishing only. This is especially significant, given that the majority

of the individuals who currently hold individual commercial permits

reside in New Jersey, a state that does not issue its own commercial

permit, but relies on the Federal individual commercial permit. Since

New Jersey does not regulate commercial vessels harvesting bluefish

through permits, owners of recreational boats would need only to obtain

a Federal individual commercial permit to land and retain more than the

bag limit. Therefore, the Council's assumption regarding the percentage

of income claimed and the assumption that those who do not own a

federally permitted vessel do not, indeed, own a vessel, likely

underestimates the number of individuals who would qualify for Federal

commercial vessel permits if this proposed rule is implemented.

Notwithstanding the above discussion, it is likely that some portion of

the number of individual permit holders, although immeasurable, may be

vulnerable to economic impacts as a result of this action. The Council

notes that negative economic impacts on small entities would be

mitigated by potential increases in harvest associated with a rebuilt

bluefish stock.

The Council also considered the status quo alternative of

continuing the issuance of permits to individuals. Although this would

mitigate the economic impacts of the proposed vessel permitting scheme,

the Council notes that under individual permitting, the monitoring of

the quota system could potentially be undermined, because it may be

difficult to contact individuals with timely notifications or obtain

information required for quota reports. Implementation and enforcement

of commercial closures and commercial minimum fish sizes that are

essential to managing the fishery would be compromised by the continued

permitting of individuals. Furthermore, harvesting capacity or fishing

power could not be evaluated under a regime of individual permits.

Impacts of Quota Allocation

The Council considered, but rejected, several time periods other

than 1981-1989, upon which to base allocation of the total annual quota

between the commercial and recreational sectors, and state-by-state

allocations of the commercial quota. Other time periods considered were

1981-1993 and 1985-1989.

The Council chose the time period 1981-1989 for the preferred

alternative because it reflects the composition of the overall fishery

in a period of relatively high stock abundance and stability.

Furthermore, the Council believed that basing the allocation on

proportional catch after 1989 would be biased, since restrictions of 10

fish per individual angler were introduced by the FMP in 1990, while no

restrictions were placed on the commercial fishery, e.g., there are no

trip limits, minimum fish size, or minimum mesh size.

[[Page 45941]]

In 1997, commercial landings accounted for 39 percent of total

landings. The commercial allocation (17 percent) under the preferred

alternative would represent a substantial reduction relative to the

1997 landings. The Council, recognizing this disparity, decided to

allow the commercial quota to be increased up to 10.5 mil lb (4.76 mil

kg), the average commercial landings for the period 1990-1997, under

the following condition--if 17 percent of the TAL (the commercial

sector) for a given year is initially calculated to be less than 10.5

mil lb (4.76 mil kg), then the quota could be increased from the level

associated with 17 percent of the TAL up to 10.5 mil lb (4.76 mil kg).

The overall quota for 2000, per the preferred rebuilding schedule,

would be 43.08 mil lb (19.54 mil kg), resulting in allocations of 7.32

mil lb (3.32 mil kg) for the commercial fishery and 35.80 mil lb (16.23

mil kg) for the recreational fishery. Using 1997 data (9.305 mil lb

(4.21 mil kg)) for comparison, commercial vessels in the 2000 fishery

could expect to experience increased revenues, at least in the short

term, since it is assumed that the commercial fishery would be able to

harvest 10.5 mil lb (4.76 mil kg). This is based on the underlying

assumption that the recreational fishery would not be projected to take

more than 32.62 mil lb (14.80 mil kg), given that landings for the

recreational fishery have been declining since 1991 and were only 14.9

mil lb (6.76 mil kg) in 1997.

In the absence of an unpredicted surge in recreational landings in

1999, 10.5 mil lb (4.76 mil kg) would be allocated to the commercial

fishery (7.32 mil lb (3.32 mil kg) specified, plus 3.18 mil lb (1.44

mil kg) from the projected surplus recreational allocation). It should

be noted that in the event recreational landings are projected to be

more than 35.80 mil lb (16.23 mil kg), the 2000 commercial quota would

be 7.32 mil lb (3.32 mil kg), and commercial bluefish fishermen would

face economic impacts associated with a 21-percent reduction of

commercial landings from 9.3 mil lb. (4.21 mil kg) in 1997.

Using the 1981-93 and 1985-89 periods for analyses would yield the

same result as above, if the assumption that the commercial sector

would be able to harvest 10.5 mil lb (4.76 mil kg) remains valid. The

1981-93 period would result in a 19/81 percent commercial/recreational

split, while the 1985-89 period would result in an 18/82 percent split.

Impacts to individual state quotas from any of the three

alternative quota allocations would also be positive, assuming that the

commercial allocation for the 2000 fishery is specified at 10.5 mil lb

(4.76 mil kg). The difference in revenues going to the various states

from the distribution of quota is negligible when the preferred period

is compared to the two alternative periods. This falls within a range

of 0.003 to 2.300 percent.

There would be no substantial short-term economic impact on

businesses that service the recreational fishery (e.g., marina, bait

shops) from the recreational quota. The recreational fishery could take

up to 35.80 mil lb (16.23 mil kg) in 2000, while estimated harvest in

1997 was only 14.9 mil lb (6.76 mil kg) in 1997, leaving a projected

surplus of 20.9 mil lb (9.48 mil kg).

Impact of Permitting and Reporting Requirements

The alternatives concerning vessel and dealer permitting and

reporting would have no effect on revenues and would represent a minute

portion of the cost of doing business. The Council estimated that 249

new vessel applicants would each spend $7.50 to apply for a permit and

$20.00 per year for reporting requirements. No special knowledge is

required to fill out the permit application.

Impact of a Commercial Minimum Fish Size

With the exception of the pound net fishery and long haul seine

fishery in North Carolina, the preferred alternative of a 12-inch

(30.48 cm) minimum fish size would not have a significant impact on

revenues. Data suggest that from 1987-1996 only 1 percent of all fish

taken by all gear types in the commercial fishery were less than 12

inches (30.48 cm). There could be significant losses in revenue to the

pound net fishery and the long haul seine fishery in North Carolina

where 64.2 and 53.7 percent of the total bluefish catch, respectively,

may be lost due to this minimum fish size restriction. However, the

reduction in gross revenue is not expected to be significant for these

gear types in terms of their gross revenue from all fishing activities.

Although the effect of other minimum fish sizes is not known, it can be

construed that the greater the minimum fish size, the larger the

impact.

Impact of the Recreational Minimum Size Limit

The recreational minimum size limit of 12 inches may effect

revenues earned by party/charter boats. The decrease in revenues would

be attributable to anglers' perception of the fishing experience in

regard to keeping or releasing small fish and how this relates to

demand for party/charter boat trips. The greatest impact would be in

Rhode Island, Connecticut, and New York, where the minimum size limit

would impact established ``snapper'' fisheries. As alternative sizes

increase, the economic effect would be diminished. However, with

limited data, it is not possible to project at what size the negative

impact would dissipate.

Impacts of Rebuilding Strategies

The Council predicts that the preferred and other alternative

rebuilding strategies will have positive long-run economic impacts. In

the short term, the impact on revenues for the 2000 fishery for all

alternative rebuilding strategies depends on the ability to transfer

quota from the recreational to the commercial fishery. Since the

Council has decided to retain a quota of 5.95 mil lb for the commercial

fishery in 1999, any transfers above the levels discussed in the

previous section on quota allocation would have a positive economic

impact on the commercial fishery in the year 2000.

The Council prepared a FEIS for Amendment 1. A notice of

availability for the FEIS was published in the Federal Register on June

25, 1999 (64 FR 34235). A copy of the FEIS may be obtained from the

Council (see ADDRESSES).

This rule has been determined to be significant for the purposes of

Executive Order 12866.

Notwithstanding any other provision of the law, no person is

required to respond to, nor shall any person be subject to a penalty

for failure to comply with, a collection of information subject to the

requirements of the Paperwork Reduction Act (PRA), unless that

collection of information displays a currently valid OMB control

number.

This rule contains collection-of-information requirements subject

to the PRA. These collection-of-information requirements have been

submitted to the Office of Management and Budget for approval. The

public reporting burden for vessel logbooks is estimated to average 12

minutes per response. The reporting burden for dealer reports is

estimated to average 4 minutes for the IVR system and estimated to

average 2 minutes for completing NOAA Form 30-80. The reporting burden

for new requirements is estimated to be 30 minutes for vessel and

charter/party vessel permit applications, 12 minutes for dealer permit

applications, 45 minutes for vessel identification, 2 minutes for

completing the employment

[[Page 45942]]

section of the Processed Products Report, and 60 minutes for states to

apply for a transfer of commercial bluefish quota. These estimates

include the time for reviewing instructions, searching existing data

sources, gathering and maintaining the data needed, and completing and

reviewing the collection of information.

Public comment is sought regarding: Whether this proposed

collection of information is necessary for the proper performance of

the functions of the agency, including whether the information has

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

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

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

including through the use of automated collection techniques or other

forms of information technology. Please send comments regarding these

burden estimates or any other aspect of the data requirements,

including suggestions for reducing the burden, to NMFS (see ADDRESSES)

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

Management and Budget, Washington, DC 20503 (ATTN: NOAA Desk Officer).

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: August 16, 1999.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 648 is

proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

1. The authority citation for part 648 continues to read as

follows:

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

2. In Sec. 648.2, the definition for ``Bluefish Committee'' is

removed and a new definition for ``Bluefish Monitoring Committee'' is

added in alphabetical order to read as follows:

Sec. 648.2 Definitions.

* * * * *

Bluefish Monitoring Committee means a committee made up of staff

representatives of the Mid-Atlantic Fishery Management Council, the New

England Fishery Management Council, and South Atlantic Fishery

Management Council, the NMFS Northeast Regional Office, the NMFS

Northeast Fisheries Science Center, and the Commission. The Mid-

Atlantic Fishery Management Council's Executive Director or a designee

chairs the committee.

* * * * *

3. In Sec. 648.4, the section heading and paragraphs (a)(8), (b)

and (c)(2)(i) are revised, and paragraph (c)(3) is removed, to read as

follows:

Sec. 648.4 Vessel permits.

(a) * * *

(8) Atlantic bluefish vessels--(i) Commercial. Any vessel of the

United States including party and charter boats not carrying passengers

for hire, that fishes for, possesses, or lands Atlantic bluefish in or

from the EEZ in excess of the recreational possession limit specified

at Sec. 648.164 must have been issued and carry on board a valid

commercial bluefish vessel permit.

(ii) Party and charter vessels. Any party or charter boat must have

been issued and carry on board a valid party or charter boat a permit

to fish for bluefish if it is carrying passengers for hire. Such vessel

must observe the possession limits established pursuant to

Sec. 648.164, and the prohibitions on sale specified in Sec. 648.14(w).

(b) Permit conditions. Any person who applies for a fishing permit

under this section must agree as a condition of the permit that the

vessel and the vessel's fishing activity, catch, and pertinent gear

(without regard to whether such fishing occurs in the EEZ or landward

of the EEZ, and without regard to where such fish or gear are

possessed, taken or landed), are subject to all requirements of this

part, unless exempted from such requirements under this part. All such

fishing activities, catch, and gear will remain subject to all

applicable state requirements. Except as otherwise provided in this

part, if a requirement of this part and a management measure required

by a state or local law differ, any vessel owner permitted to fish in

the EEZ for any species managed under this part must comply with the

more restrictive requirement. Owners and operators of vessels fishing

under the terms of a summer flounder moratorium, scup moratorium, black

sea bass moratorium or bluefish commercial vessel permit must also

agree not to land summer flounder, scup, black sea bass, or bluefish,

respectively, in any state after NMFS has published a notification in

the Federal Register stating that the commercial quota for that state

or period has been harvested and that no commercial quota is available

for the respective species. A state not receiving an allocation of

summer flounder, scup, black sea bass, or bluefish, either directly or

through a coastwide allocation, is deemed to have no commercial quota

available. Owners or operators fishing for surf clams and ocean quahogs

within waters under the jurisdiction of any state that requires cage

tags are not subject to any conflicting Federal minimum size or tagging

requirements. If a surf clam and ocean quahog requirement of this part

differs from a surf clam and ocean quahog management measure required

by a state that does not require cage tagging, any vessel owners or

operators permitted to fish in the EEZ for surf clams and ocean quahogs

must comply with the more restrictive requirement while fishing in

state waters. However, surrender of a surf clam and ocean quahog vessel

permit by the owner by certified mail addressed to the Regional

Administrator allows an individual to comply with the less restrictive

state minimum size requirement, as long as fishing is conducted

exclusively within state waters. If the commercial black sea bass quota

for a period is harvested and the coast is closed to the possession of

black sea bass north of 35 deg.15.3' N. lat., any vessel owners that

hold valid commercial permits for both the black sea bass and the NMFS

Southeast Region Snapper-Grouper fisheries may surrender their

moratorium Black Sea Bass permit by certified mail addressed to the

Regional Administrator and fish pursuant to their Snapper-Grouper

permit, as long as fishing is conducted exclusively in waters, and

landings are made, south of 35 deg.15.3' N. lat. A moratorium permit

for the black sea bass fishery that is voluntarily relinquished or

surrendered will be reissued upon the receipt of the vessel owner's

written request after a minimum period of 6 months from the date of

cancellation.

(c) * * *

(2) * * * (i) An application for a permit issued under this

section, in addition to the information specified in paragraph (c)(1)

of this section, also must contain at least the following and any thing

else required by the Regional Administrator: Vessel name; owner name or

name of the owner's authorized representative, mailing address, and

telephone number; USCG documentation number and a copy of the vessel's

current USCG documentation or, for a vessel not required to be

documented under 46 U.S.C., the vessel's state registration number and

a copy of the current state registration; a copy of the vessel's

current party/charter boat license (if applicable); home port and

principal port of landing; length overall; GRT; NT; engine horsepower;

year the vessel was built; type of construction; type of propulsion;

approximate fish hold

[[Page 45943]]

capacity; type of fishing gear used by the vessel; number of crew;

number of party or charter passengers licensed to be carried (if

applicable); permit category; if the owner is a corporation, a copy of

the current Certificate of Incorporation or other corporate papers

showing the date of incorporation and the names of the current officers

of the corporation, and the names and addresses of all shareholders

owning 25 percent or more of the corporation's shares; if the owner is

a partnership, a copy of the current Partnership Agreement and the

names and addresses of all partners; if there is more than one owner,

the names of all owners having a 25-percent interest or more; and

permit number of any current or, if expired, previous Federal fishery

permit issued to the vessel.

* * * * *

4. In Sec. 648.5, the first sentence of paragraph (a) is revised to

read as follows:

Sec. 648.5 Operator permits.

(a) General. Any operator of a vessel fishing for or possessing sea

scallops in excess of 40 lb (18.1 kg), NE multispecies, monkfish,

mackerel, squid, butterfish, scup, black sea bass, or bluefish,

harvested in or from the EEZ, or issued a permit for these species

under this part, must have been issued under this section and carry on

board, a valid operator's permit. * * *

* * * * *

5. In Sec. 648.6, paragraph (a) is revised to read as follows:

Sec. 648.6 Dealer/processor permits.

(a) General. All NE multispecies, monkfish, sea scallop, summer

flounder, surf clam, ocean quahog, mackerel, squid, butterfish, scup,

black sea bass, or bluefish dealers and surf clam and ocean quahog

processors must have been issued under this section, and have in their

possession a valid permit for these species.

* * * * *

6. In Sec. 648.7, the first sentence of paragraphs (a)(1)(i) and

(a)(3)(i) and the heading and first sentence of paragraph (b)(1)(i) are

revised to read as follows:

Sec. 648.7 Recordkeeping and reporting requirements.

(a) * * *

(1) * * *

(i) All summer flounder, scup, black sea bass, Atlantic sea

scallop, NE multispecies, monkfish, Atlantic mackerel, squid,

butterfish, or bluefish dealers must provide: Dealer name and mailing

address; dealer permit number; name and permit number or name and hull

number (USCG documentation number or state registration number, which

ever is applicable) of vessels from which fish are landed or received;

trip identifier for a trip from which fish are landed or received;

dates of purchases; pounds by species (by market category, if

applicable); price per pound by species (by market category, if

applicable); port landed; signature of person supplying the

information; and any other information deemed necessary by the Regional

Administrator. * * *

* * * * *

(3) * * *

(i) Summer flounder, scup, black sea bass, Atlantic sea scallop, NE

multispecies, Atlantic mackerel, squid, butterfish, and bluefish

dealers must complete the ``Employment Data'' section of the Annual

Processed Products Report; completion of the other sections of that

form is voluntary. * * *

* * * * *

(b) * * *

(1) * * *

(i) Owners or operators of vessels issued a summer flounder, scup,

black sea bass, Atlantic sea scallop, NE multispecies, Atlantic

mackerel, squid, butterfish, or bluefish permit. The owner or operator

of any vessel issued a permit for summer flounder, scup, black sea

bass, Atlantic sea scallops, NE multispecies, Atlantic mackerel, squid,

butterfish, or bluefish must maintain on board the vessel, and submit,

an accurate daily fishing log report for all fishing trips, regardless

of species fished for or taken, on forms supplied by or approved by the

Regional Administrator. * * *

* * * * *

7. In Sec. 648.11, the first sentence of paragraph (a) and

paragraph (e) are revised to read as follows:

Sec. 648.11 At-sea sampler/observer coverage.

(a) The Regional Administrator may request any vessel holding a

permit for Atlantic sea scallops, or NE multispecies, or monkfish, or

Atlantic mackerel, squid, butterfish, or scup, or black sea bass, or

bluefish, or a moratorium permit for summer flounder, to carry a NMFS-

approved sea sampler/observer. * * *

* * * * *

(e) The owner or operator of a vessel issued a summer flounder

moratorium permit, or a scup moratorium permit, or a black sea bass

moratorium permit, or a bluefish permit, if requested by the sea

sampler/observer also must:

(1) Notify the sea sampler/observer of any sea turtles, marine

mammals, summer flounder, scup, or black sea bass, or bluefish, or

other specimens taken by the vessel.

(2) Provide the sea sampler/observer with sea turtles, marine

mammals, summer flounder, scup, or black sea bass, or bluefish, or

other specimens taken by vessel.

* * * * *

8. In Sec. 648.12, the introductory text is revised to read as

follows:

Sec. 648.12 Experimental fishing.

The Regional Administrator may exempt any person or vessel from the

requirements of subparts B (Atlantic mackerel, squid, and butterfish),

D (sea scallop), E (surf clam and ocean quahog), F (NE multispecies), G

(summer flounder), H (scup), I (black sea bass), or J (bluefish) of

this part for the conduct of experimental fishing beneficial to the

management of the resources or fishery managed under that subpart. The

Regional Administrator shall consult with the Executive Director of the

Council regarding such exemptions for the Atlantic mackerel, squid, and

butterfish, the summer flounder, the scup, the black sea bass, and the

bluefish fisheries.

* * * * *

9. In Sec. 648.14, paragraphs (w)(1) through (w)(5) are revised and

paragraphs (w)(6), (w)(7), and (x)(8) are added to read as follows:

Sec. 648.14 Prohibitions.

* * * * *

(w) * * *

(1) Possess in or harvest from the EEZ, Atlantic bluefish, in

excess of the daily possession limit found at Sec. 648.164, unless the

vessel is issued a valid Atlantic bluefish vessel permit under

Sec. 648.4(a)(8) and the permit is on board the vessel and has not been

surrendered, revoked, or suspended.

(2) Purchase, possess or receive for a commercial purpose, or

attempt to purchase, possess, or receive for a commercial purpose, in

the capacity of a dealer, except for transport on land, Atlantic

bluefish taken from a fishing vessel unless issued, and in possession

of, a valid Atlantic bluefish fishery dealer permit issued under

Sec. 648.6(a).

(3) Sell, barter, trade or transfer, or attempt to sell, barter,

trade or otherwise transfer, other than for transport, Atlantic

bluefish, unless the dealer or transferee has a dealer permit issued

under Sec. 648.6(a).

(4) Land Atlantic bluefish for sale in a state after the effective

date of the notification in the Federal Register, pursuant to

Sec. 648.161(b), which notifies permit holders that the commercial

quota is no longer available in that state.

[[Page 45944]]

(5) Carry passengers for hire, or carry more than three crew

members for a charter boat or five crew members for a party boat, while

fishing commercially pursuant to an Atlantic bluefish permit issued

under Sec. 648.4(a)(8).

(6) Land Atlantic bluefish for sale after the effective date of the

notification in the Federal Register pursuant to Sec. 648.161(a), which

notifies permit holders that the Atlantic bluefish fishery is closed.

(7) Sell or transfer bluefish harvested in or from the EEZ unless

the vessel has been issued a valid commercial permit pursuant to

Sec. 648.4(a)(8)(i).

(x) * * *

(8) All bluefish possessed on board a party or charter vessel

issued a permit under Sec. 648.4(a)(8) are deemed to have been

harvested from the EEZ.

10. Subpart J is revised to read as follows:

Subpart J--Management Measures for the Atlantic Bluefish Fishery

Sec.

648.160 Catch quotas and other restrictions.

648.161 Closures.

648.162 Minimum fish sizes.

648.163 Gear restrictions.

648.164 Possession restrictions.

648.165 Framework specifications.

Subpart J--Management Measures for the Atlantic Bluefish Fishery

Sec. 648.160 Catch quotas and other restrictions.

The fishing year is from January 1 through December 31.

(a) Annual review. The Bluefish Monitoring Committee will review

the following data, subject to availability, on or before August 15 of

each year to recommend the total allowable level of landings (TAL) and

other restrictions necessary to achieve a target fishing mortality rate

(F) of 0.51 in 1999 and 2000; a target F of 0.41 in 2001, 2002, and

2003; a target F of 0.31 in 2004, 2005, 2006, and 2007; and a target F

of 0.36 thereafter: Commercial and recreational catch data; current

estimates of fishing mortality; stock status; recent estimates of

recruitment; virtual population analysis results; levels of

noncompliance by fishermen or individual states; impact of size/mesh

regulations; sea sampling data; impact of gear other than otter trawls

and gill nets on the mortality of bluefish; and any other relevant

information.

(b) Recommended measures. Based on the annual review, the Bluefish

Monitoring Committee shall recommend to the Coastal Migratory Committee

of the Council and the Commission the following measures to assure that

the F specified in paragraph (a) of this section will not be exceeded:

(1) A TAL set from a range of zero to the maximum allowed to

achieve the specified F.

(2) Commercial minimum fish size.

(3) Minimum mesh size.

(4) Recreational possession limit set from a range of zero to 20

bluefish to achieve the specified F.

(5) Recreational minimum fish size.

(6) Recreational season.

(7) Restrictions on gear other than otter trawls and gill nets.

(c) Allocation of the TAL--(1) Recreational harvest limit. The

recreational fishery shall be allocated 83 percent of the TAL as a

harvest limit.

(2) Commercial quota. The commercial fishery shall be allocated 17

percent of the TAL as a quota. If 17 percent of the TAL is less than

10.5 mil lb (4.8 mil kg), and the recreational fishery is not projected

to land 83 percent of the TAL for the upcoming year, the commercial

fishery may be allocated up to 10.5 mil lb (4.8 mil kg) as its quota,

provided that the combination of the projected recreational landings

and the commercial quota does not exceed the TAL.

(d) Annual fishing measures. The Council's Coastal Migratory

Committee shall review the recommendations of the Bluefish Monitoring

Committee. Based on these recommendations and any public comment, the

Coastal Migratory Committee shall recommend to the Council measures

necessary to assure that the applicable specified F will not be

exceeded. The Council shall review these recommendations and, based on

the recommendations and any public comment, recommend to the Regional

Administrator by September 1 measures necessary to assure that the

applicable specified F will not be exceeded. The Council's

recommendations must include supporting documentation, as appropriate,

concerning the environmental, economic, and social impacts of the

recommendations. The Regional Administrator shall review these

recommendations and any recommendations of the Commission. After such

review, the Regional Administrator will publish a proposed rule in the

Federal Register on or about October 15 to implement a coastwise

commercial quota and recreational harvest limit and additional

management measures for the commercial fishery, and will publish a

proposed rule in the Federal Register on or about February 15 to

implement additional management measures for the recreational fishery,

if received from the Council by January 1, if he/she determines that

such measures are necessary to assure that the applicable specified F

will not be exceeded. After considering public comment, the Regional

Administrator will publish a final rule in the Federal Register.

(e) Distribution of annual quota. (1) The annual commercial quota

will be distributed to the states, based upon the following

percentages:

Annual Commercial Quota Shares

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

State Percentage

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

ME......................................................... 0.6685

NH......................................................... 0.4145

MA......................................................... 6.7167

RI......................................................... 6.8081

CT......................................................... 1.2663

NY......................................................... 10.3851

NJ......................................................... 14.8162

DE......................................................... 1.8782

MD......................................................... 3.0018

VA......................................................... 11.8795

NC......................................................... 32.0608

SC......................................................... 0.0352

GA......................................................... 0.0095

FL......................................................... 10.0597

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

Total.................................................. 100.0000

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

Note: The ``Total'' does not actually add up to 100.0000 because of

rounding error.

(2) All bluefish landed for sale in a state shall be applied

against that state's annual commercial quota, regardless of where the

bluefish were harvested. Any overages of the commercial quota landed in

any state will be deducted from that state's annual quota for the

following year.

(f) Quota transfers and combinations. Any state implementing a

state commercial quota for bluefish may request approval from the

Regional Administrator to transfer part or all of its annual quota to

one or more other states. Two or more states implementing a state

commercial quota for bluefish may request approval from the Regional

Administrator to combine their quotas, or part of their quotas, into an

overall regional quota. Requests for transfer or combination of

commercial quotas for bluefish must be made by individual or joint

letter(s) signed by the principal state official with marine fishery

management responsibility and expertise, or his/her previously named

designee, for each state involved. The letter(s) must certify that all

pertinent state requirements have been met and identify the states

involved and the amount of quota to be transferred or combined.

(1) Within 10 working days following the receipt of the letter(s)

from the states involved, the Regional Administrator shall notify the

appropriate state

[[Page 45945]]

officials of the disposition of the request. In evaluating requests to

transfer a quota or combine quotas, the Regional Administrator shall

consider whether:

(i) The transfer or combination would preclude the overall annual

quota from being fully harvested.

(ii) The transfer addresses an unforeseen variation or contingency

in the fishery.

(iii) The transfer is consistent with the objectives of the FMP and

Magnuson-Stevens Act.

(2) The transfer of quota or the combination of quotas will be

valid only for the calendar year for which the request was made and

will be effective when the notice of approval of the transfer or

combination has been published in the Federal Register.

(3) A state may not submit a request to transfer quota or combine

quotas if a request to which it is party is pending before the Regional

Administrator. A state may submit a new request when it receives notice

that the Regional Administrator has disapproved the previous request or

when notice of the approval of the transfer or combination has been

published in the Federal Register.

(4) If there is a quota overage among states involved in the

combination of quotas at the end of the fishing year, the overage will

be deducted from the following year's quota for each of the states

involved in the combined quota. The deduction will be proportional,

based on each state's relative share of the combined quota for the

previous year. A transfer of quota or combination of quotas does not

alter any state's percentage share of the overall quota specified in

paragraph (e)(1) of this section.

(g) Based upon any changes in the landings data available from the

states for the base years 1981-89, the Commission and the Council may

recommend to the Regional Administrator that the states' shares

specified in paragraph (e)(1) of this section be revised. The Council's

and the Commission's recommendation must include supporting

documentation, as appropriate, concerning the environmental and

economic impacts of the recommendation. The Regional Administrator

shall review the recommendation of the Commission and the Council.

After such review, NMFS will publish a proposed rule in the Federal

Register to implement a revision in the state shares. After considering

public comment, NMFS will publish a final rule in the Federal Register

to implement the changes in allocation.

Sec. 648.161 Closures.

(a) EEZ closure. The Regional Administrator shall close the EEZ to

fishing for bluefish by commercial vessels for the remainder of the

calendar year by publishing notification in the Federal Register if he/

she determines that the inaction of one or more states will cause the

applicable F specified in Sec. 648.160(a) to be exceeded, or if the

commercial fisheries in all states have been closed. The Regional

Administrator may reopen the EEZ if earlier inaction by a state has

been remedied by that state, or if commercial fisheries in one or more

states have been reopened without causing the applicable specified F to

be exceeded.

(b) State quotas. The Regional Administrator will monitor state

commercial quotas based on dealer reports and other available

information and shall determine the date when a state commercial quota

will be harvested. The Regional Administrator shall publish

notification in the Federal Register advising a state that, effective

upon a specific date, its commercial quota has been harvested and

notifying vessel and dealer permit holders that no commercial quota is

available for landing bluefish in that state.

Sec. 648.162 Minimum fish sizes.

If the Council determines through its annual review or framework

adjustment process that minimum fish sizes are necessary to assure that

the fishing mortality rate is not exceeded, or to attain other FMP

objective, such measures will be enacted through the procedure

specified in Sec. 648.160(d) or Sec. 648.165.

Sec. 648.163 Gear restrictions.

If the Council determines through its annual review or framework

adjustment process that gear restrictions are necessary to assure that

the fishing mortality rate is not exceeded, or to attain other FMP

objectives, such measures will be enacted through the procedure

specified in Sec. 648.160(d) or Sec. 648.165.

Sec. 648.164 Possession restrictions.

(a) No person shall possess more than 10 bluefish in, or harvested

from, the EEZ unless that person is the owner or operator of a fishing

vessel issued a bluefish commercial permit or is issued a bluefish

dealer permit. Persons aboard a vessel that is not issued a bluefish

commercial permit are subject to this possession limit. The owner,

operator, and crew of a charter or party boat issued a bluefish

commercial permit are not subject to the possession limit when not

carrying passengers for hire and when the crew size does not exceed

five for a party boat and three for a charter boat.

(b) Bluefish harvested by vessels subject to the possession limit

with more than one person on board may be pooled in one or more

containers. Compliance with the daily possession limit will be

determined by dividing the number of bluefish on board by the number of

persons on board, other than the captain and the crew. If there is a

violation of the possession limit on board a vessel carrying more than

one person, the violation shall be deemed to have been committed by the

owner and operator.

Sec. 648.165 Framework specifications.

(a) Within season management action. The Council may, at any time,

initiate action to add or adjust management measures if it finds that

action is necessary to meet or be consistent with the goals and

objectives of the Bluefish FMP.

(1) Adjustment process. After a management action has been

initiated, the Council shall develop and analyze appropriate management

actions over the span of at least two Council meetings. The Council

shall provide the public with advance notice of the availability of

both the proposals and the analysis and the opportunity to comment on

them prior to and at the second Council meeting. The Council's

recommendation on adjustments or additions to management measures must

come from one or more of the following categories: Minimum fish size,

maximum fish size, gear restrictions, gear requirements or

prohibitions, permitting restrictions, recreational possession limit,

recreational season, closed areas, commercial season, description and

identification of essential fish habitat (EFH), fishing gear management

measures to protect EFH, designation of habitat areas of particular

concern within EFH, and any other management measures currently

included in the FMP.

(2) Council recommendation. After developing management actions and

receiving public testimony, the Council shall make a recommendation to

the Regional Administrator. The Council's recommendation must include

supporting rationale and, if management measures are recommended, an

analysis of impacts and a recommendation to the Regional Administrator

on whether to issue the management measures as a final rule. If the

Council recommends

[[Page 45946]]

that the management measures should be issued as a final rule, the

Council must consider at least the following factors and provide

support and analysis for each factor considered:

(i) Whether the availability of data on which the recommended

management measures are based allows for adequate time to publish a

proposed rule, and whether regulations have to be in place for an

entire harvest/fishing season;

(ii) Whether there has been adequate notice and opportunity for

participation by the public and members of the affected industry in the

development of the Council's recommended management measures;

(iii) Whether there is an immediate need to protect the resource;

and

(iv) Whether there will be a continuing evaluation of management

measures adopted following their implementation as a final rule.

(3) Action by NMFS. If the Council's recommendation to NMFS

includes adjustments or additions to management measures and:

(i) If NMFS concurs with the Council's recommended management

measures and determines that the recommended management measures should

be issued as a final rule based on the factors specified in paragraph

(a)(2) of this section, then the measures will be issued as a final

rule in the Federal Register.

(ii) If NMFS concurs with the Council's recommendation and

determines that the recommended management measures should be published

first as a proposed rule, then the measures will be published as a

proposed rule in the Federal Register. After additional public comment,

if NMFS concurs with the Council's recommendation, then the measures

will be issued as a final rule in the Federal Register.

(iii) If NMFS does not concur, then the Council will be notified in

writing of the reasons for the non-concurrence.

(b) Emergency action. Nothing in this section is meant to derogate

from the authority of the Secretary to take emergency action under

section 305(e) of the Magnuson-Stevens Act.

[FR Doc. 99-21591 Filed 8-20-99; 8:45 am]

BILLING CODE 3310-22-P