Fisheries of the Northeastern United States; Amendment 9 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan

DEPARTMENT OF COMMERCE

50 CFR Part 648

[Docket No. 960805216-6216-01; I.D. 071596E]

RIN 0648-AH06

Fisheries of the Northeastern United States; Amendment 9 to the

Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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

SUMMARY: NMFS issues this proposed rule to implement those provisions

of Amendment 9 to the Fishery Management Plan (FMP) for the Summer

Flounder, Scup and Black Sea Bass Fisheries not initially disapproved.

Amendment 9 would implement management measures for the black sea bass

fishery in order to reduce fishing mortality and allow the stock to

rebuild.

DATES: Public comments must be received on or before October 7, 1996.

ADDRESSES: Comments on the proposed rule or supporting documents should

be sent to Dr. Andrew A. Rosenberg, Regional Director, One Blackburn

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

``Comments on the Black Sea Bass Fishery.''

Comments regarding burden-hour estimates for collection-of-

information requirements contained in this proposed rule should be sent

to the Director, Northeast Region, NMFS, at the address above and the

Office of Information and Regulatory Affairs, Office of Management and

Budget (OMB), Washington, D.C. 20502 (Attention: NOAA Desk Officer).

Copies of Amendment 9, the final environmental impact statement

(FEIS), the Mid-Atlantic Fishery Management Council's initial

regulatory flexibility analysis, the regulatory impact review, and

other supporting documents are available upon request from David R.

Keifer, Executive Director, Mid-Atlantic Fishery Management Council,

Room 2115 Federal Building, 300 S. New Street, Dover, DE 19904-6790.

FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy

Analyst, 508-281-9221.

SUPPLEMENTARY INFORMATION:

Background

ry flexibility analysis, the regulatory impact review, and

other supporting documents are available upon request from David R.

Keifer, Executive Director, Mid-Atlantic Fishery Management Council,

Room 2115 Federal Building, 300 S. New Street, Dover, DE 19904-6790.

FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy

Analyst, 508-281-9221.

SUPPLEMENTARY INFORMATION:

Background

In 1978, the Mid-Atlantic Fishery Management Council (Council)

began the development of an FMP for black sea bass pursuant to the

Magnuson Fishery Management and Conservation Act, as amended (Magnuson

Act). Although preliminary development work was done, the FMP was not

completed. In January 1990, the Council and the Atlantic States Marine

Fisheries Commission (Commission) began to develop an FMP for black sea

bass as an amendment to the summer flounder FMP. However, its

development was delayed by a series of amendments to address problems

in the summer flounder fishery. Work on a separate black sea bass FMP

was not resumed until 1993.

NMFS requested that the black sea bass regulations be incorporated

into the summer flounder FMP, as an amendment, because black sea bass

are usually harvested with summer flounder and scup and it is logical

to manage these fisheries under one FMP. Furthermore, this combination

will reduce the number of separate regulations issued by the Federal

government. As a result, the measures were submitted as Amendment 9 to

the Summer Flounder, Scup, and Black Sea Bass FMP. Amendment 9 was

prepared jointly by the Council and Commission, in consultation with

the New England and South Atlantic Fishery Management Councils, and

adopted for NMFS review at the Council meeting in May 1996.

Subsequently, as part of the President's Regulatory Reinvention

Initiative, regulations implementing all fishery management plans for

the marine fisheries of the Northeast region were consolidated into one

new CFR part

he Council and Commission, in consultation with

the New England and South Atlantic Fishery Management Councils, and

adopted for NMFS review at the Council meeting in May 1996.

Subsequently, as part of the President's Regulatory Reinvention

Initiative, regulations implementing all fishery management plans for

the marine fisheries of the Northeast region were consolidated into one

new CFR part. This proposed rule would establish black sea bass

measures at 50 CFR 648, subparts A and I.

A notice of availability for Amendment 9 was published in the

Federal Register on July 24, 1996 (61 FR 38430). The amendment revises

the summer flounder (Paralichthys dentatus) and scup (Stenotomus

chrysops) FMP to include management measures for the black sea bass

(Centropristis striata) fishery. The management unit for this fishery

is black sea bass in U.S. waters of the western Atlantic Ocean from

35 deg.15.3' N. lat., the latitude of Cape Hatteras Light, NC,

northward to the U.S.-Canadian border.

Status of the Stocks

Commercial landings of black sea bass have declined dramatically

from the peak landings of 22 million lb (9.98 mil kg) reported in the

1950's. In 1994, commercial landings were about 2.0 million lb (0.91

mil kg), or about 60 percent of the 1983-1994 average of 3.4 million lb

(1.54 mil kg). Additionally, recreational landings were 2.9 million lb

(1.32 mil kg) in 1994, lower than the 1983-94 average of 3.8 million lb

(1.72 mil kg).

Landings-per-unit-effort (LPUE) from the Mid-Atlantic trawl fishery

has been used as an index of abundance for black sea bass. Standardized

LPUE, defined as metric tons (mt) per days fished for trips landing

more than 25 percent black sea bass, peaked at 11.3 mt in 1984, and

then declined to a low of 1.6 mt in 1992. Standardized LPUE increased

slightly to 3.2 mt in 1993.

The Northeast Fisheries Science Center (NEFSC) has conducted a

spring and autumn offshore survey for a number of species, including

black sea bass, since 1972

LPUE, defined as metric tons (mt) per days fished for trips landing

more than 25 percent black sea bass, peaked at 11.3 mt in 1984, and

then declined to a low of 1.6 mt in 1992. Standardized LPUE increased

slightly to 3.2 mt in 1993.

The Northeast Fisheries Science Center (NEFSC) has conducted a

spring and autumn offshore survey for a number of species, including

black sea bass, since 1972. The spring offshore survey has been used as

an index for black sea bass recruits (fish longer than 20 cm standard

length (SL)) and the autumn inshore survey data as an index of pre-

recruits (fish less than 11 cm SL). The spring recruit index was

generally high in the late 1970's, ranging from 2.0 to 6.09 fish per

tow. The spring index declined from 6.09 fish per tow in 1977 to a low

of 0.2 per tow in 1982. More recently the spring index was 0.87 in 1993

and declined to 0.28 in 1994. The fall pre-recruit indices show a

similar trend (i.e., relatively low recent values compared to the mid-

1970's).

Analyses conducted by the NEFSC indicate a strong correlation

between the fall pre-recruit index and commercial catch per unit effort

in the trawl fishery. The index for pre-recruits indicated that above-

average year classes were produced in 1977, 1982, and 1986. Recruitment

for 1992 and 1993, based on this index, was well below average.

Recruitment was above average in 1994. Despite this above average

recruitment in 1994, available information still indicate that black

sea bass are overexploited.

Overfishing for black sea bass is defined in Amendment 9 as fishing

in excess of Fmax. Fmax is the biological reference point

corresponding to an exploitation rate of 23 percent (i.e., the

proportion of the population removed during a time period), and the

level of fishing mortality (F) that produces maximum yield per recruit.

Based on current conditions in the fishery, Fmax for black sea

bass is 0.29

g for black sea bass is defined in Amendment 9 as fishing

in excess of Fmax. Fmax is the biological reference point

corresponding to an exploitation rate of 23 percent (i.e., the

proportion of the population removed during a time period), and the

level of fishing mortality (F) that produces maximum yield per recruit.

Based on current conditions in the fishery, Fmax for black sea

bass is 0.29. The results of a virtual population analysis--an analysis

of catches from a given year class over its life in the fishery--

indicate that the fishing mortality rate in

1993 was 1.05 (an annual exploitation rate of 60 percent). This rate,

coupled with the above information--that is, the decline in landings,

reduced LPUE, and low survey indices--indicate that black sea bass are

overexploited.

Disapproved Measures

NMFS, on behalf of the Secretary of Commerce, disapproved the

commercial quota mechanism proposed in Amendment 9 based upon a

preliminary evaluation of Amendment 9, as authorized under section

304(a)(1)(A)(ii) of the Magnuson Act. Thus, this provision is not

included in this proposed rule. This provision would have specified an

annual commercial quota apportioned among the states from North

Carolina, northward from Cape Hatteras, through Maine, unless some

other alternative was developed to take its place. This provision was

determined to be inconsistent with national standard 7 of the Magnuson

Act because it is not a viable management measure. Amendment 9 failed

to address adequately how a commercial quota that bifurcates the State

of North Carolina at Cape Hatteras would be implemented, given the fact

that the Fishery Management Plan for the Snapper-Grouper Fishery of the

South Atlantic Region imposes management measures to the south for an

actively fished stock of black sea bass. The quota monitoring system

proposed by the Council would impose significant administrative and

enforcement costs on NMFS and/or the State of North Carolina

a at Cape Hatteras would be implemented, given the fact

that the Fishery Management Plan for the Snapper-Grouper Fishery of the

South Atlantic Region imposes management measures to the south for an

actively fished stock of black sea bass. The quota monitoring system

proposed by the Council would impose significant administrative and

enforcement costs on NMFS and/or the State of North Carolina. The cost

of law enforcement would significantly outweigh any benefits to the

stock, especially in the initial years of quota management, given the

amendment's protracted rebuilding schedule.

NMFS believes that the commercial quota is one of the primary

mechanisms to reduce overfishing in this fishery, and without it there

is no mechanism to attain the reductions in exploitation necessary to

achieve the amendment's goals. Amendment 9 must represent a complete

management program to satisfy the national standards and other

applicable law. Final approval of the remaining measures of Amendment

9, therefore, will be contingent upon the resubmission of a commercial

quota measure that rehabilitates the deficiencies of the disapproved

measure. In order for NMFS to determine that Amendment 9 is a complete,

approvable management program for black sea bass, a resubmission that

revises the quota measure must be received by NMFS in sufficient time

for NMFS to conduct its review of the measure, including the

consideration of public comments received during the public comment

period, by the Day 95 statutory decision deadline for Amendment 9

(October 17, 1996).

Proposed Measures

Vessel, Dealer, and Operator Permits

ement program for black sea bass, a resubmission that

revises the quota measure must be received by NMFS in sufficient time

for NMFS to conduct its review of the measure, including the

consideration of public comments received during the public comment

period, by the Day 95 statutory decision deadline for Amendment 9

(October 17, 1996).

Proposed Measures

Vessel, Dealer, and Operator Permits

The Council proposes to establish a moratorium on commercial vessel

permits for the directed fishery for black sea bass. Any owner or

operator of a vessel desiring to fish for black sea bass within the

exclusive economic zone (EEZ) for sale, or transport, or delivery for

sale, would have to obtain a permit from NMFS for that purpose. Vessel

owners would be required to demonstrate past participation in the

fishery to obtain a commercial moratorium permit. The Council proposes

to limit moratorium permits to vessels with documented landings of

black sea bass for sale between January 26, 1988, and January 26, 1993.

Vessels that were under construction for, or being rerigged for, use in

the directed fishery for black sea bass on January 26, 1993, would be

eligible for a moratorium permit provided they landed black sea bass

for sale prior to January 26, 1994.

The owner or operator of a party or charter boat (vessel for hire)

desiring to fish for black sea bass within the EEZ would have to obtain

a charter/party boat permit from NMFS for that purpose. A party or

charter boat could have both a charter/party boat permit and a

commercial moratorium permit if, in addition to meeting the charter/

party boat criteria, the vessel meets the commercial vessel

qualification requirements set forth in Amendment 9. However, such a

vessel would have to fish under any existing recreational rules if it

were carrying passengers for a fee. A vessel may replace a vessel, with

substantially similar harvesting capacity that initially qualified for

a moratorium permit, but both vessels must be owned by the same person

ia, the vessel meets the commercial vessel

qualification requirements set forth in Amendment 9. However, such a

vessel would have to fish under any existing recreational rules if it

were carrying passengers for a fee. A vessel may replace a vessel, with

substantially similar harvesting capacity that initially qualified for

a moratorium permit, but both vessels must be owned by the same person.

Vessel permits issued to vessels that leave the fishery may not be

combined to create larger replacement vessels.

An operator of a vessel with any permit issued under Amendment 9

would be required to have a Federal operator permit. The operator

permits issued to operators in the Northeast multispecies, American

lobster, Atlantic sea scallops and/or Atlantic mackerel, squid, and

butterfish fisheries would satisfy this requirement. The operator would

be held accountable for violations of the fishing regulations and could

be subject to a permit sanction. During the permit sanction period, the

operator could not work in any capacity aboard a federally permitted

fishing vessel.

Under Amendment 9, any dealer of black sea bass would be required

to have a NMFS dealer permit. A dealer of black sea bass would be

defined as a person or firm that receives black sea bass for a

commercial purpose from the owner or operator of a vessel issued a

moratorium permit pursuant to Amendment 9, other than solely for

transport on land.

Reporting and Recordkeeping

ed

fishing vessel.

Under Amendment 9, any dealer of black sea bass would be required

to have a NMFS dealer permit. A dealer of black sea bass would be

defined as a person or firm that receives black sea bass for a

commercial purpose from the owner or operator of a vessel issued a

moratorium permit pursuant to Amendment 9, other than solely for

transport on land.

Reporting and Recordkeeping

The Council intends to institute recordkeeping and reporting

requirements for black sea bass that are identical to those required by

the Atlantic Mackerel, Squid, and Butterfish, the Summer Flounder, the

Northeast Multispecies, and the Atlantic Sea Scallop Fishery Management

Plans. The logbooks in use for those fisheries would be used to meet

this requirement. These vessels currently must report all species

caught and dealers must report all species purchased. Thus, vessels or

dealers reporting under those FMPs would not be subject to any

additional reporting burdens as a result of the black sea bass

requirements.

Commercial logbooks would be submitted on a monthly basis by

Federal moratorium and charter/party boat permit holders in order to

monitor the fishery.

Dealers with permits issued pursuant to Amendment 9 would submit

weekly reports showing all species purchased in pounds, and the name

and permit number of the vessels from which the species were purchased.

Buyers that do not purchase directly from vessels would not be required

to submit reports under this provision.

Minimum Fish Sizes

Amendment 9 would establish minimum fish sizes that could be

adjusted annually by the Black Sea Bass Monitoring Committee

(Monitoring Committee). The initial minimum fish size would be 9 inches

(22.9 cm) total length for both the commercial and recreational

fisheries.

Minimum Mesh Size

e directly from vessels would not be required

to submit reports under this provision.

Minimum Fish Sizes

Amendment 9 would establish minimum fish sizes that could be

adjusted annually by the Black Sea Bass Monitoring Committee

(Monitoring Committee). The initial minimum fish size would be 9 inches

(22.9 cm) total length for both the commercial and recreational

fisheries.

Minimum Mesh Size

The minimum mesh-size requirement for otter trawl vessels

possessing a threshold catch of 100 lb or more (45.4 kg or more) of

black sea bass would be a minimum codend mesh size of 4.0 inches (10.2

cm) diamond mesh or 3.5 inches (8.9 cm) square mesh, inside measure,

applied throughout the codend for at least 75 continuous meshes forward

of the terminus of the net or, if the net is not long enough for such a

measurement, the terminal one-third of the net, measured from the

terminus of the codend to the center of the head rope. The minimum net

mesh size and the threshold level could be adjusted annually by the

Monitoring Committee.

Maximum Roller Size

Amendment 9 would prohibit owners or operators of vessels issued

moratorium permits from using roller rig trawl gear equipped with

rollers greater than 18 inches (45.7 cm) in diameter.

Pot and Trap Gear Requirements

Black sea bass pots and traps would be required to have a minimum

escape vent of 1 - 1/8 inches x 5 3/4 inches (2.86 cm x 14.61 cm), 2.0

inches (5.1 cm) in diameter, or 1.5 inches (3.81 cm) square (inside

measure). Compliance with the escape vent provision would be required

at the start of the first calendar year following approval of Amendment

9, so that harvesters would not be required to pull their pots and add

vents in the middle of the season. Black sea bass pots and traps would

be required to have hinges and fasteners on one panel or door made of

degradable materials

cm) square (inside

measure). Compliance with the escape vent provision would be required

at the start of the first calendar year following approval of Amendment

9, so that harvesters would not be required to pull their pots and add

vents in the middle of the season. Black sea bass pots and traps would

be required to have hinges and fasteners on one panel or door made of

degradable materials. The opening in the pot or trap covered by the

panel affixed to the trap with degradable fasteners would have to be at

least 3 inches x 6 inches (7.62 cm x 15.24 cm).

The escape vent requirement could be adjusted annually by the

Monitoring Committee.

Harvest Limit

In 1998, a coastwide harvest limit would be specified at a level

that would reduce the exploitation rate to the level specified in the

rebuilding schedule. This harvest limit would be allocated 49 percent

to the commercial fishery, and 51 percent to the recreational fishery,

via a recreational harvest limit. The coastwide harvest limit will be

set annually by the Monitoring Committee.

Recreational Measures

Beginning in 1997, recreational landings would be compared to

annual target harvest levels to determine if modifications to the

recreational season, possession limit, and minimum size limit are

required in the following year in order for the fishery to remain

within specified harvest limits.

Special Management Zones

An individual issued a permit by the Corps of Engineers for an

artificial reef (permittee) may make a request to the Council that the

artificial reef, and appropriate surrounding area of the artificial

reef, fish attraction device, or other modification of habitat for the

purpose of fishing, be designated as a special management zone (SMZ).

The SMZ would prohibit or restrain the use of specific types of fishing

gear that are not compatible with the intent of the permittee for the

artificial reef or habitat modification

the

artificial reef, and appropriate surrounding area of the artificial

reef, fish attraction device, or other modification of habitat for the

purpose of fishing, be designated as a special management zone (SMZ).

The SMZ would prohibit or restrain the use of specific types of fishing

gear that are not compatible with the intent of the permittee for the

artificial reef or habitat modification. The establishment of an SMZ

would be done by regulatory amendment involving full public

participation.

Classification

Section 304(a)(1)(D)(ii) of the Magnuson Act, as amended, requires

NMFS to publish regulations proposed by a Council within 15 days of

receipt of the amendment and proposed regulations. At this time, NMFS

has not determined whether the measures in Amendment 9 that these rules

would implement are consistent with the national standards, other

provisions of the Magnuson Act, and other applicable law. NMFS, in

making that determination, will take into account the information,

views, and comments received during the comment period.

The Council prepared an FEIS for Amendment 9, a copy of which may

be obtained from the Council (see ADDRESSES).

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 proposed rule, if adopted,

would not have a significant economic impact on a substantial number of

small entities. Amendment 9 would implement management measures for the

black sea bass fishery where none had previously existed. The economic

analysis contained in Amendment 9 indicates that it is unlikely that

the measures that would be implemented by this action would increase or

decrease ex-vessel revenues by more than 5 percent for more than 20

percent of the small entities engaged in the black sea bass fishery

t 9 would implement management measures for the

black sea bass fishery where none had previously existed. The economic

analysis contained in Amendment 9 indicates that it is unlikely that

the measures that would be implemented by this action would increase or

decrease ex-vessel revenues by more than 5 percent for more than 20

percent of the small entities engaged in the black sea bass fishery.

Based on the available information, many fishery participants are

already in compliance with the measures proposed to be implemented

(including a maximum diameter for roller gear and minimum mesh size

requirements for the otter trawl fishery, and fish size requirements).

Black sea bass fishery participants generally land scup, summer

flounder, squid, dogfish, and other species with black sea bass. Sixty

percent of the trips landing black sea bass are otter trawl trips.

Based on 1992 data for otter trawl trips landing over 100 pounds of

black sea bass, Loligo, scup, and summer flounder comprise

approximately 34, 12 and 11 percent by weight, respectively, of the

total catch, whereas black sea bass comprises approximately only 2.5

percent. This 2.5 percent by weight comprises only 3.6 percent of the

value of the total catch. For the years 1983 to 1992 combined, nearly

60 percent of the trips landing black sea bass used otter trawl gear.

Minimum fish size regulations (see above) for black sea bass

contained in this amendment may reduce total pounds landed in 8 of the

13 states that do not currently have minimum fish size requirements for

this species, because fishermen may no longer land fish smaller than

the minimum size. However, based on the available data, the amount of

reduction of landings is not expected to be significant

imum fish size regulations (see above) for black sea bass

contained in this amendment may reduce total pounds landed in 8 of the

13 states that do not currently have minimum fish size requirements for

this species, because fishermen may no longer land fish smaller than

the minimum size. However, based on the available data, the amount of

reduction of landings is not expected to be significant. For example,

even if size restrictions were to reduce coastwide otter trawl landings

by 10 percent (a worse case assumption from the point of adverse

economic impact), impact on otter trawl vessels would be marginal

because of the low proportion of black sea bass in the total catch, as

noted above. It is anticipated that the minimum fish size would have

similarly insignificant impacts on the remaining gear types, which

comprise the remaining 40 percent of all black sea bass landings.

Therefore, this rule most likely would not have a significant impact on

a substantial number of small entities.

This proposed rule contains collection-of-information requirements

subject to the Paperwork Reduction Act (PRA). The proposed rule

contains new requirements that have been submitted to OMB for approval.

These requirements and their estimated response times are: Mandatory

dealer reporting at 2 minutes per response, annual employment data at 6

minutes per response, vessel reporting requirements at 5 minutes per

response, vessel permits and permit appeals at 30 minutes per response,

operator permits at 1 hour per response, observer notification

requirement at 2 minutes per response, vessel marking (3 locations) at

15 minutes per marking, gear identification requirements at 1 minute

per response, and requests for an experimental fishing exemption at 1.9

hours.

The response estimates shown include the time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information

nse, vessel marking (3 locations) at

15 minutes per marking, gear identification requirements at 1 minute

per response, and requests for an experimental fishing exemption at 1.9

hours.

The response estimates shown include the time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding any of these burden

estimates or any other aspect of the collection of information to NMFS

and OMB (see ADDRESSES).

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 PRA unless that collection of information displays a currently

valid OMB control number.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: August 14, 1996.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

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

proposed to be amended as follows:

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

follows:

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

2. In Sec. 648.1, paragraph (a) is revised to read as follows:

Sec. 648.1 Purpose and scope.

(a) This part implements the fishery management plans (FMP) for the

Atlantic mackerel, squid, and butterfish fisheries (Atlantic Mackerel,

Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon FMP); the

Atlantic sea scallop fishery (Atlantic Sea Scallop FMP (Scallop FMP));

the Atlantic surf clam and ocean quahog fisheries (Atlantic Surf Clam

and Ocean Quahog FMP); the Northeast multispecies fishery (NE

Multispecies FMP); and the summer flounder, scup and the black sea bass

fisheries (Summer Flounder, Scup and Black Sea Bass FMP). These FMPs

and the regulations in this part govern the conservation and management

of fisheries of the northeastern United States

);

the Atlantic surf clam and ocean quahog fisheries (Atlantic Surf Clam

and Ocean Quahog FMP); the Northeast multispecies fishery (NE

Multispecies FMP); and the summer flounder, scup and the black sea bass

fisheries (Summer Flounder, Scup and Black Sea Bass FMP). These FMPs

and the regulations in this part govern the conservation and management

of fisheries of the northeastern United States.

* * * * *

3. In Sec. 648.2, the definitions for ``Black Sea Bass Monitoring

Committee,'' ``Black sea bass pot or black sea bass trap,'' are added,

in alphabetical order, and the definition for ``Council'' is revised to

read as follows:

* * * * *

Black Sea Bass Monitoring Committee means a committee made up of

staff representatives of the Mid-Atlantic, New England, and South

Atlantic Fishery Management Councils, the Northeast Regional Office of

NMFS, the Northeast Fisheries Science Center, and Commission

representatives. The Council Executive Director or his designee chairs

the Committee.

Black sea bass pot or black sea bass trap means any such gear used

to catch and retain black sea bass.

* * * * *

Council means the New England Fishery Management Council (NEFMC)

for the Atlantic sea scallop and the NE multispecies fisheries, or the

Mid-Atlantic Fishery Management Council (MAFMC) for the Atlantic

mackerel, squid, and butterfish; the Atlantic surf clam and ocean

quahog; and the summer flounder, scup and black sea bass fisheries.

* * * * *

4. In Sec. 648.4, paragraph (a)(6) is added and reserved, paragraph

(a)(7) is added, and paragraph (b) is revised to read as follows:

Sec. 648.4 Vessel permits.

pecies fisheries, or the

Mid-Atlantic Fishery Management Council (MAFMC) for the Atlantic

mackerel, squid, and butterfish; the Atlantic surf clam and ocean

quahog; and the summer flounder, scup and black sea bass fisheries.

* * * * *

4. In Sec. 648.4, paragraph (a)(6) is added and reserved, paragraph

(a)(7) is added, and paragraph (b) is revised to read as follows:

Sec. 648.4 Vessel permits.

(a) * * *

(7) Black sea bass vessels. Beginning 90 days following the

effective date of these regulations, any vessel of the United States

that fishes for or retains black sea bass in or from the EEZ north of

35 deg.15.3' N. lat., the latitude of Cape Hatteras Light, NC, must

have been issued and carry on board a valid black sea bass moratorium

permit, except for vessels other than party or charter vessels that

observe the possession limit established pursuant to Sec. 648.145.

(i) Moratorium permits--(A) Eligibility. A vessel is eligible to

receive a permit to fish for and retain black sea bass in excess of the

possession limit established pursuant to Sec. 648.145 in the EEZ north

of 35 deg.15.3' N. lat., the latitude of Cape Hatteras Light, NC, if it

meets any of the following criteria:

(1) The vessel landed and sold black sea bass between January 26,

1988, and January 26, 1993; or

(2) The vessel was under construction for, or was being rerigged

for, use in the directed fishery for black sea bass on January 26,

1993, provided the vessel landed black sea bass for sale prior to

January 26, 1994.

(3) The vessel is replacing a vessel of substantially similar

harvesting capacity that qualifies under the criteria of paragraph

ween January 26,

1988, and January 26, 1993; or

(2) The vessel was under construction for, or was being rerigged

for, use in the directed fishery for black sea bass on January 26,

1993, provided the vessel landed black sea bass for sale prior to

January 26, 1994.

(3) The vessel is replacing a vessel of substantially similar

harvesting capacity that qualifies under the criteria of paragraph

(a)(7)(i)(A)(1) or (a)(7)(i)(A)(2) of this section, and both the

entering and replaced vessels are owned by the same person. Vessel

permits issued to vessels that leave the fishery may not be combined to

create larger replacement vessels.

(B) Application/renewal restrictions. No one may apply for an

initial black sea bass moratorium permit after:

(1) [Insert date 12 months after the effective date of the final

rule]; or

(2) The owner retires the vessel from the fishery.

(C) Qualification restriction. Unless the Regional Director

determines to the contrary, no more than one vessel may qualify at any

one time for a black sea bass moratorium permit based on that or

another vessel's fishing and permit history. If more than one vessel

owner claims eligibility for a black sea bass moratorium permit based

on one vessel's fishing and permit history, the Regional Director will

determine who is entitled to qualify for the permit according to

paragraph (D) of this section.

(D) Change in ownership. The fishing and permit history of a vessel

is presumed to transfer with the vessel whenever it is bought, sold, or

otherwise transferred, unless there is a written agreement, signed by

the transferor/seller and transferee/buyer, or other credible written

evidence, verifying that the transferor/seller is retaining the

vessel's fishing and permit history for purposes of replacing the

vessel. If the fishing and permit history of the vessel is transferred,

the transferee/buyer must comply with the requirements of Sec. 648.4(h)

for the continuation of a moratorium permit for his or her benefit

seller and transferee/buyer, or other credible written

evidence, verifying that the transferor/seller is retaining the

vessel's fishing and permit history for purposes of replacing the

vessel. If the fishing and permit history of the vessel is transferred,

the transferee/buyer must comply with the requirements of Sec. 648.4(h)

for the continuation of a moratorium permit for his or her benefit.

(E) Replacement vessels. To be eligible for a moratorium permit

under this section, the replacement vessel must be of substantially

similar harvesting capacity as the vessel that initially qualified for

the moratorium permit, and both vessels must be owned by the same

person. Vessel permits issued to vessels that leave the fishery may not

be combined to create larger replacement vessels.

(F) Appeal of denial of permit. (1) Any applicant denied a

moratorium permit may appeal to the Regional Director within 30 days of

the notice of denial. Any such appeal shall be in writing. The only

ground for appeal is that the Regional Director erred in concluding

that the vessel did not meet the criteria in paragraph (a)(7)(i)(A)(1)

or (a)(7)(i)(A)(2) of this section. The appeal shall set forth the

basis for the applicant's belief that the Regional Director's decision

was made in error.

(2) The appeal may be presented, at the option of the applicant, at

a hearing before an officer appointed by the Regional Director.

(3) The hearing officer shall make a recommendation to the Regional

Director.

(4) The decision on the appeal by the Regional Director is the

final decision of the Department of Commerce.

(ii) Party and charter boat permit. The owner of any party or

charter boat must obtain a permit to fish for or retain black sea bass

in or from the EEZ while carrying passengers for hire.

Regional Director.

(3) The hearing officer shall make a recommendation to the Regional

Director.

(4) The decision on the appeal by the Regional Director is the

final decision of the Department of Commerce.

(ii) Party and charter boat permit. The owner of any party or

charter boat must obtain a permit to fish for or retain black sea bass

in or from the EEZ while carrying passengers for hire.

(b) Permit conditions. Vessel owners who apply for a fishing vessel

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

the vessel and 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 pertinent 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 or black sea bass permit must

also agree, as a condition of the permit, not to land summer flounder

or black sea bass in any state, or part thereof, that the Regional

Director has determined no longer has commercial quota available. A

state, or part thereof, not receiving an allocation of summer flounder

or black sea bass 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

longer has commercial quota available. A

state, or part thereof, not receiving an allocation of summer flounder

or black sea bass 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 owner or

operator 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

Director allows an individual to comply with the less restrictive state

minimum size requirement, so long as fishing is conducted exclusively

within state waters.

* * * * *

5. In Sec. 648.5, 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, Atlantic

mackerel, squid, and butterfish, and; as of 90 days following the

effective date of the regulations, black sea bass; harvested in or from

the EEZ, or issued a permit for these species under this part, must

have and carry on board a valid operator's permit issued under this

section. An operator permit issued pursuant to part 649 shall satisfy

the permitting requirement of this section. This requirement does not

apply to operators of recreational vessels.

* * * * *

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

Sec. 648.6 Dealer/processor permits.

se species under this part, must

have and carry on board a valid operator's permit issued under this

section. An operator permit issued pursuant to part 649 shall satisfy

the permitting requirement of this section. This requirement does not

apply to operators of recreational vessels.

* * * * *

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

Sec. 648.6 Dealer/processor permits.

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

surf clam and ocean quahog dealers, and surf clam and ocean quahog

processors must have been issued and have in their possession a permit

for such species issued under this section. As of January 1, 1997, all

Atlantic mackerel, squid, and butterfish dealers, and, as of [insert

date 90 days after the effective date of the final rule], all black sea

bass dealers must have been issued and have in their possession a valid

dealers permit for those species.

* * * * *

7. In Sec. 648.7, paragraphs (a)(1)(i), (a)(2)(i), (b)(1)(i),

(b)(1)(iii) the first sentence, and (f)(3) are revised to read as

follows:

Sec. 648.7 Recordkeeping and reporting requirements.

(a) * * *

(1) * * *

(i) Summer flounder, scallop, NE multispecies, Atlantic mackerel,

squid and butterfish, and, as of [insert date 90 days after the

effective date of the final rule], black sea bass dealers, must

provide: Name and mailing address of dealer, dealer number, name and

permit number of the vessels from which fish are landed or received,

dates of purchases, pounds by species, price by species, and port

landed. If no fish are purchased during the week, a report so stating

must be submitted. All report forms must be signed by the dealer or

other authorized individual.

* * * * *

(2) * * *

st

provide: Name and mailing address of dealer, dealer number, name and

permit number of the vessels from which fish are landed or received,

dates of purchases, pounds by species, price by species, and port

landed. If no fish are purchased during the week, a report so stating

must be submitted. All report forms must be signed by the dealer or

other authorized individual.

* * * * *

(2) * * *

(i) Summer flounder, scallop, NE multispecies, Atlantic mackerel,

squid, and butterfish, and, as of [insert date 90 days after the

effective date of the final rule], black sea bass dealers must complete

the ``Employment Data'' section of the Annual Processed Products

Reports; completion of the other sections of that form is voluntary.

Reports must be submitted to the address supplied by the Regional

Director.

* * * * *

(b) Vessel owners--(1) Fishing Vessel Log Reports--(i) Owners of

vessels issued summer flounder moratorium, scallop, multispecies,

mackerel, squid, and butterfish, or black sea bass moratorium permits.

The owner or operator of any vessel issued a vessel permit for summer

flounder moratorium, scallops, NE multispecies, or, as of January 1,

1997, an Atlantic mackerel, squid, or butterfish vessel permit, or, as

of [insert date 90 days after the effective date of the final rule], a

black sea bass moratorium permit, 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 Director. * * *

* * * * *

an Atlantic mackerel, squid, or butterfish vessel permit, or, as

of [insert date 90 days after the effective date of the final rule], a

black sea bass moratorium permit, 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 Director. * * *

* * * * *

(iii) Owners of party and charter boats. The owner of any party or

charter boat issued a summer flounder permit other than a moratorium

permit and carrying passengers for hire shall maintain on board the

vessel, and submit, an accurate daily fishing log report for each

charter or party fishing trip that lands summer flounder, unless such a

vessel is also issued a summer flounder moratorium permit, a sea

scallop permit, a multispecies permit, or, as of January 1, 1997, a

mackerel, squid or butterfish permit, or, as of [insert date 90 days

after the effective date of the final rule], a black sea bass permit,

in which case a fishing log report is required for each trip regardless

of species retained. * * *

* * * * *

(f) * * *

(3) At-sea purchasers, receivers, or processors. All persons

purchasing, receiving, or processing any summer flounder, Atlantic

mackerel, squid, butterfish or, as of [insert date 90 days after

effective date of the final rule], black sea bass at sea for landing at

any port of the United States must submit information identical to that

required by paragraph (a)(1) or (a)(2) of this section, as applicable,

and provide those reports to the Regional Director or designee on the

same frequency basis.

8. In Sec. 648.11, paragraphs (a) and (e) introductory text are

revised to read as follows:

Sec. 648.11 At-sea sea sampler/observer coverage.

for the conduct

of experimental fishing beneficial to the management of the resources

or fishery managed under that subpart. The Regional Director shall

consult with the Executive Director of the Council regarding such

exemptions for the Atlantic mackerel, squid, and butterfish, the summer

flounder and the black sea bass fisheries.

10. In Sec. 648.14, paragraph (a)(8) is revised, paragraphs

(a)(80), (a)(81), and (a)(82) are added, paragraph (t) is redesignated

as paragraph (v), and new paragraph (t), and paragraphs (u) and (v)(6)

are added to read as follows:

Sec. 648.14 Prohibitions.

(a) * * *

(8) Assault, resist, oppose, impede, harass, intimidate, interfere

with or bar by command, impediment, threat, or coercion either a NMFS-

approved observer, sea sampler, or other NMFS-authorized employee

aboard a vessel or in a dealer/processor establishment, conducting his

or her duties aboard a vessel or in a dealer/processor establishment,

or an authorized officer conducting any search, inspection,

investigation, or seizure in connection with enforcement of this part.

* * * * *

(80) Possess in or harvest from the EEZ black sea bass either in

excess of the possession limit established pursuant to Sec. 648.145 or

before or after the time period established pursuant to Sec. 648.142,

unless the person is operating a vessel issued a moratorium permit

under Sec. 648.4 and the moratorium permit is on board the vessel and

has not been surrendered, revoked, or suspended.

(81) Possess nets or netting with mesh not meeting the minimum mesh

requirement of Sec. 648.144 if the person possesses black sea bass

harvested in or from the EEZ in excess of the threshold limit

established pursuant to Sec. 648.144(a).

g a vessel issued a moratorium permit

under Sec. 648.4 and the moratorium permit is on board the vessel and

has not been surrendered, revoked, or suspended.

(81) Possess nets or netting with mesh not meeting the minimum mesh

requirement of Sec. 648.144 if the person possesses black sea bass

harvested in or from the EEZ in excess of the threshold limit

established pursuant to Sec. 648.144(a).

(82) Purchase or otherwise receive for commercial purposes black

sea bass caught by other than a vessel with a moratorium permit not

subject to the possession limit established pursuant to Sec. 648.145

unless the vessel has not been issued a permit under this part and is

fishing exclusively within the waters under the jurisdiction of any

state.

* * * * *

(t) In addition to the general prohibitions specified in

Sec. 600.725 of this chapter and in paragraph (a) of this section, it

is unlawful for any person owning or operating a vessel issued a black

sea bass permit (including a moratorium permit) to do any of the

following:

(1) Possess 100 lb (45.4 kg) or more of black sea bass, unless the

vessel meets the minimum mesh requirement specified in Sec. 648.144(a).

(2) Possess black sea bass in other than a box specified in

Sec. 648.145(c) if fishing with nets having mesh that does not meet the

minimum mesh-size requirement specified in Sec. 648.144(a).

(3) Land black sea bass for sale in any state, or part thereof, in

which commercial quota is no longer available.

(4) Fish with or possess nets or netting that do not meet the

minimum mesh requirement, or that are modified, obstructed or

constricted, if subject to the minimum mesh requirement specified in

Sec. 648.144, unless the nets or netting are stowed in accordance with

Sec. 648.23(b).

(5) Fish with or possess rollers used in roller rig or rock hopper

trawl gear that do not meet the requirements specified in

Sec. 648.144(a)(5).

(6) Fish with or possess pots or traps that do not meet the

requirements specified in Sec. 648.144(b).

d, if subject to the minimum mesh requirement specified in

Sec. 648.144, unless the nets or netting are stowed in accordance with

Sec. 648.23(b).

(5) Fish with or possess rollers used in roller rig or rock hopper

trawl gear that do not meet the requirements specified in

Sec. 648.144(a)(5).

(6) Fish with or possess pots or traps that do not meet the

requirements specified in Sec. 648.144(b).

(7) Sell or transfer to another person for a commercial purpose,

other than transport, any black sea bass, unless the transferee has a

valid black sea bass dealer permit.

(8) 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 a black sea bass moratorium permit.

(u) It is unlawful for the owner and operator of a party or charter

boat issued a black sea bass permit (including a moratorium permit),

when the boat is carrying passengers for hire or carrying more than

three crew members if a charter boat or more than five members if a

party boat, to:

(1) Possess black sea bass in excess of the possession limit

established pursuant to Sec. 648.145.

(2) Fish for black sea bass other than during a season specified

pursuant to Sec. 648.142.

(3) Sell black sea bass or transfer black sea bass to another

person for a commercial purpose.

(v) * * *

(6) Black sea bass. All black sea bass possessed on board a party

or charter boat issued a permit under Sec. 648.4(6)(ii) are deemed to

have been harvested from the EEZ.

11. Subpart I is added to read as follows:

Subpart I--Management Measures for the Black Sea Bass Fishery

Sec.

648.140 Catch quotas and other restrictions.

648.141 Closure.

648.142 Time restrictions.

648.143 Minimum sizes.

648.144 Gear restrictions.

648.145 Possession limit.

648.146 Special management zones.

Subpart I--Management Measures for the Black Sea Bass Fishery

Sec. 648.140 Catch quotas and other restrictions.

o read as follows:

Subpart I--Management Measures for the Black Sea Bass Fishery

Sec.

648.140 Catch quotas and other restrictions.

648.141 Closure.

648.142 Time restrictions.

648.143 Minimum sizes.

648.144 Gear restrictions.

648.145 Possession limit.

648.146 Special management zones.

Subpart I--Management Measures for the Black Sea Bass Fishery

Sec. 648.140 Catch quotas and other restrictions.

(a) Annual review. The Black Sea Bass Monitoring Committee will

review the following data, subject to availability, on or before August

15 of each year to determine the allowable levels of fishing and other

restrictions necessary to result in a target exploitation rate of 48

percent for black sea bass in 1998, 1999 and 2000; a target

exploitation rate of 37 percent in 2001 and 2002; and a target

exploitation rate of 29 percent (based on Fmax) in 2003 and

subsequent years: 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 and winter trawl survey data, or if sea

sampling data are unavailable, length frequency information from the

winter trawl survey and mesh selectivity analyses; impact of gear other

than otter trawls, pots and traps on the mortality of black sea bass;

and any other relevant information.

s; levels of

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

regulations; sea sampling and winter trawl survey data, or if sea

sampling data are unavailable, length frequency information from the

winter trawl survey and mesh selectivity analyses; impact of gear other

than otter trawls, pots and traps on the mortality of black sea bass;

and any other relevant information.

(b) Recommended measures. Based on this review, the Black Sea Bass

Monitoring Committee will recommend to the Demersal Species Committee

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

the target exploitation rate specified in paragraph (a) of this section

is not exceeded:

(1) Commercial minimum fish size.

(2) Minimum mesh size in the codend or throughout the net and the

catch threshold that would require compliance with the minimum mesh

requirement.

(3) Escape vent size.

(4) A recreational possession limit set from a range of (0) to the

maximum allowed to achieve the target exploitation rate specified in

paragraph (a) of this section. Implementation of this measure will

begin in 1998.

(5) Recreational minimum fish size.

(6) Implementation of this measure will begin in 1998.

(7) Restrictions on gear other than otter trawls and pots or traps.

(c) Annual fishing measures. The Demersal Species Committee shall

review the recommendations of the Black Sea Bass Monitoring Committee.

Based on these recommendations and any public comment, the Demersal

Species Committee shall make its recommendations to the Council with

respect to the measures necessary to assure that the target

exploitation rate specified in paragraph (a) of this section are not

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

the recommendations and public comment, make recommendations to the

Regional Director with respect to the measures necessary to assure that

the target exploitation rate specified in paragraph (a) of this section

is not exceeded

to assure that the target

exploitation rate specified in paragraph (a) of this section are not

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

the recommendations and public comment, make recommendations to the

Regional Director with respect to the measures necessary to assure that

the target exploitation rate specified in paragraph (a) of this section

is not exceeded. Included in the recommendation will be supporting

documents, as appropriate, concerning the environmental and economic

impacts of the proposed action. The Regional Director will review these

recommendations and any recommendations of the Commission. After such

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

Federal Register October 15 to implement a harvest limit, and

additional management measures for the commercial fishery, and will

publish a proposed rule in the Federal Register by February 15 to

implement additional management measures for the recreational fishery,

if he/she determines that such measures are necessary to assure that

the target exploitation rate specified in paragraph (a) of this section

is not exceeded. After considering public comment, the Regional

Director will publish a final rule in the Federal Register to

implement the measures necessary to assure that the target exploitation

rate specified in paragraph (a) of this section is not exceeded.

Sec. 648.141 Closure.

EEZ closure. The Regional Director shall close the EEZ to fishing

for black sea bass by commercial vessels for the remainder of the

calendar year by publishing notification in the Federal Register if he

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

the applicable target exploitation rate specified in Sec. 648.140(a) to

be exceeded. The Regional Director may reopen the EEZ if earlier

inaction by a state has been remedied by that state without causing the

applicable specified target exploitation rate to be exceeded.

Sec. 648.142 Time restrictions.

Federal Register if he

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

the applicable target exploitation rate specified in Sec. 648.140(a) to

be exceeded. The Regional Director may reopen the EEZ if earlier

inaction by a state has been remedied by that state without causing the

applicable specified target exploitation rate to be exceeded.

Sec. 648.142 Time restrictions.

Vessels that are not eligible for a moratorium permit under

Sec. 648.4(a)(7) and fishermen subject to the possession limit may fish

for black sea bass from January 1 through December 31. Beginning in

1998, this time period may be adjusted pursuant to the procedures in

Sec. 648.140.

Sec. 648.143 Minimum sizes.

(a) The minimum size for black sea bass is 9 inches (22.9 cm) total

length for all vessels issued a permit under Sec. 648.4(a)(7) and for

all other vessels which fish for or retain black sea bass in or from

the EEZ. The minimum size may be adjusted for commercial and/or

recreational vessels pursuant to the procedures in Sec. 648.140.

(b) The minimum size in this section applies to the whole fish or

any part of a fish found in possession (e.g., fillets), except that

party or charter vessels possessing valid state permits authorizing

filleting at sea may possess fillets smaller than the size specified if

skin remains on the fillet and all other state requirements are met.

Sec. 648.144 Gear restrictions.

es in Sec. 648.140.

(b) The minimum size in this section applies to the whole fish or

any part of a fish found in possession (e.g., fillets), except that

party or charter vessels possessing valid state permits authorizing

filleting at sea may possess fillets smaller than the size specified if

skin remains on the fillet and all other state requirements are met.

Sec. 648.144 Gear restrictions.

(a) Trawl gear restrictions--(1) General. (i) Otter trawlers whose

owners are issued a black sea bass moratorium permit and that land or

possess 100 lb or more (45.4 kg or more) of black sea bass per trip,

must fish with nets that have a minimum mesh size of 4.0 inches (10.2

cm) diamond or 3.5 inches (8.9 cm) square (inside measure) mesh applied

throughout the codend for at least 75 continuous meshes forward of the

terminus of the net, or, for codends with less than 75 meshes, the

minimum-mesh-size codend must be a minimum of one-third of the net,

measured from the terminus of the codend to the center of the head

rope, excluding any turtle excluder device extension.

(ii) Mesh sizes shall be measured pursuant to the procedure

specified in Sec. 648.104(a)(2).

(2) Net modifications. No vessel subject to this part shall use any

device, gear, or material, including, but not limited to nets, net

strengtheners, ropes, lines, or chafing gear, on the top of the

regulated portion of a trawl net; except that, one splitting strap and

one bull rope (if present) consisting of line or rope no more than 3

inches (7.6 cm) in diameter may be used if such splitting strap and/or

bull rope does not constrict, in any manner, the top of the regulated

portion of the net, and one rope no greater than 0.75 inches (1.9 cm)

in diameter extending the length of the net from the belly to the

terminus of the codend along the top, bottom, and each side of the net

sent) consisting of line or rope no more than 3

inches (7.6 cm) in diameter may be used if such splitting strap and/or

bull rope does not constrict, in any manner, the top of the regulated

portion of the net, and one rope no greater than 0.75 inches (1.9 cm)

in diameter extending the length of the net from the belly to the

terminus of the codend along the top, bottom, and each side of the net.

``Top of the regulated portion of the net'' means the 50 percent of the

entire regulated portion of the net that (in a hypothetical situation)

will not be in contact with the ocean bottom during a tow if the

regulated portion of the net were laid flat on the ocean floor. For the

purpose of this paragraph, head ropes shall not be considered part of

the top of the regulated portion of a trawl net.

(3) Mesh obstruction or constriction. (i) A fishing vessel may not

use any mesh configuration, mesh construction, or other means on or in

the top of the net, as defined in paragraph (a)(2) of this section,

that obstructs the meshes of the net in any manner, or otherwise causes

the size of the meshes of the net while in use to diminish to a size

smaller than the minimum established pursuant to Sec. 648.144(a)(1)(i).

(ii) No person on any vessel may possess or fish with a net capable

of catching black sea bass in which the bars entering or exiting the

knots twist around each other.

(4) Stowage of nets. Otter trawl vessels subject to the minimum

mesh-size requirement of paragraph (a)(1)(i) of this section may not

have ``available for immediate use'' any net or any piece of net that

does not meet the minimum mesh size requirement, or any net, or any

piece of net, with mesh that is rigged in a manner that is inconsistent

with the minimum mesh size requirement. A net that is stowed in

conformance with one of the methods specified in Sec. 648.23(b) and

that can be shown not to have been in recent use, is considered to be

not ``available for immediate use.''

ece of net that

does not meet the minimum mesh size requirement, or any net, or any

piece of net, with mesh that is rigged in a manner that is inconsistent

with the minimum mesh size requirement. A net that is stowed in

conformance with one of the methods specified in Sec. 648.23(b) and

that can be shown not to have been in recent use, is considered to be

not ``available for immediate use.''

(5) Roller gear. Rollers used in roller rig or rock hopper trawl

gear shall be no larger than 18 inches (45.7 cm) in diameter.

(b) Pot and trap gear restrictions--(1) Escape vents. All black sea

bass traps or pots must have an escape vent placed in a lower corner of

the parlor portion of the pot or trap which complies with one

of the following minimum sizes: 1.125 inches (2.86 cm) by 5.75 inches

(14.61 cm); or a circular vent 2 inches (5.08 cm) in diameter; or a

square vent with sides of 1.5 inches (3.81 cm), inside measure. These

dimensions may be adjusted pursuant to the procedures in Sec. 648.140.

(2) Gear marking. The owner of a vessel issued a black sea bass

moratorium permit must mark all black sea bass pots or traps with the

vessel's USCG documentation number or state registration number.

(3) Degradable panels. Black sea bass pots or traps must have the

hinges and fasteners of one panel or door made of one of the following

degradable materials:

(i) Untreated hemp, jute, or cotton string of 3/16 inches (4.8 mm)

diameter or smaller; or

(ii) Magnesium alloy, timed float releases (pop-up devices) or

similar magnesium alloy fasteners; or

(iii) Ungalvanized or uncoated iron wire of 0.094 inches (2.4 mm)

diameter or smaller.

(4) Ghost panels. Black sea bass traps or pots must contain a panel

affixed to the trap or pot with degradable fasteners as specified in

Sec. 648.144(b)(3) and which measures at least 3.0 inches (7.62 cm) by

6.0 inches (15.24 cm).

ed float releases (pop-up devices) or

similar magnesium alloy fasteners; or

(iii) Ungalvanized or uncoated iron wire of 0.094 inches (2.4 mm)

diameter or smaller.

(4) Ghost panels. Black sea bass traps or pots must contain a panel

affixed to the trap or pot with degradable fasteners as specified in

Sec. 648.144(b)(3) and which measures at least 3.0 inches (7.62 cm) by

6.0 inches (15.24 cm).

(5) Lathes spacing. Pots or traps constructed of wooden lathes must

have spacing of a least 1.125 inches (2.8575 cm) between one set of

lathes in the parlor portion of the trap.

Sec. 648.145 Possession limit.

A possession limit will be established pursuant to the procedures

in Sec. 648.140 to assure that the recreational harvest limit is not

exceeded.

(a) If whole black sea bass are processed into fillets, an

authorized officer will convert the number of fillets to whole black

sea bass at the place of landing by dividing fillet number by two. If

black sea bass are filleted into a single (butterfly) fillet, such

fillet shall be deemed to be from one whole black sea bass.

(b) Black sea bass harvested by vessels subject to the possession

limit with more than one person aboard may be pooled in one or more

containers. Compliance with the daily possession limit will be

determined by dividing the number of black sea bass on board by the

number of persons aboard, 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.

e pooled in one or more

containers. Compliance with the daily possession limit will be

determined by dividing the number of black sea bass on board by the

number of persons aboard, 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.

(c) Owners or operators of otter trawl vessels issued a moratorium

permit under Sec. 648.4(a)(7) and fishing with, or possessing on board,

nets or pieces of net that do not meet the minimum mesh requirements

and that are not stowed in accordance with Sec. 648.144(a)(4), may not

retain 100 lb or more (45.4 kg or more) of black sea bass. Black sea

bass on board these vessels shall be stored so as to be readily

available for inspection in a standard 100-lb (45.4-kg) tote.

Sec. 648.146 Special management zones.

The recipient of a Corps of Engineers permit for an artificial

reef, fish attraction device, or other modification of habitat for

purposes of fishing may request that an area surrounding and including

the site be designated by the Council as a Special Management Zone

(SMZ). The SMZ would prohibit or restrain the use of specific types of

fishing gear that are not compatible with the intent of the artificial

reef or fish attraction device or other habitat modification. The

establishment of an SMZ would be effected by a regulatory amendment

pursuant to the following procedure:

and including

the site be designated by the Council as a Special Management Zone

(SMZ). The SMZ would prohibit or restrain the use of specific types of

fishing gear that are not compatible with the intent of the artificial

reef or fish attraction device or other habitat modification. The

establishment of an SMZ would be effected by a regulatory amendment

pursuant to the following procedure:

(a) A SMZ monitoring team comprised of members of staff from the

MAFMC, NMFS Northeast Region, and NMFS Northeast Fisheries Science

Center will evaluate the request in the form of a written report

considering the following criteria:

(1) Fairness and equity.

(2) Promotion of conservation.

(3) Avoidance of excessive shares.

(4) Consistency with the objectives of Amendment 9 to the Fishery

Management Plan for the Summer Flounder, Scup and Black Sea Bass

fisheries, the Magnuson Act, and other applicable law.

(5) The natural bottom in and surrounding potential SMZs.

(6) Impacts on historical uses.

(b) The Council Chairman may schedule meetings of Industry Advisors

and/or the Scientific and Statistical Committee to review the report

and associated documents and to advise the Council. The Council

Chairman may also schedule public hearings.

(c) The Council, following review of the SMZ monitoring teams's

report, supporting data, public comments, and other relevant

information, may recommend to the Regional Director that a SMZ be

approved. Such a recommendation would be accompanied by all relevant

background information.

(d) The Regional Director will review the Council's recommendation.

If the Regional Director concurs in the recommendation, he or she will

publish a proposed rule in the Federal Register in accordance with the

recommendations. If the Regional Director rejects the Council's

recommendation, he or she shall advise the Council in writing of the

basis for the rejection.

t

background information.

(d) The Regional Director will review the Council's recommendation.

If the Regional Director concurs in the recommendation, he or she will

publish a proposed rule in the Federal Register in accordance with the

recommendations. If the Regional Director rejects the Council's

recommendation, he or she shall advise the Council in writing of the

basis for the rejection.

(e) The proposed rule shall afford a reasonable period for public

comment. Following a review of public comments and any information or

data not previously available, the Regional Director will publish a

final rule if he or she determines that the establishment of the SMZ is

supported by the substantial weight of evidence in the administrative

record and consistent with the Magnuson Act and other applicable law.

[FR Doc. 96-21259 Filed 8-16-96; 2:14 pm]

BILLING CODE 3510-22-F