[Federal Register Volume 62, Number 202 (Monday, October 20, 1997)]
[Proposed Rules]
[Pages 54427-54431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27821]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 971015246-7246-01; I.D. 100897D]
RIN 0648-AK44


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed specifications for the 1998 summer flounder, scup, and 
black sea bass fisheries; request for comments.

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SUMMARY: NMFS proposes specifications for 1998 for summer flounder, 
scup, and black sea bass. The implementing regulations for these 
fisheries require NMFS to publish specifications for the upcoming 
fishing year and to provide an opportunity for public comment. The 
intent of these measures is to reduce fishing effort on summer 
flounder, scup, and black sea bass and to continue rebuilding stock 
abundance of these species.

DATES: Public comments must be received on or before November 17, 1997.

ADDRESSES: Copies of supporting documents used by the Summer Flounder, 
Scup, and Black Sea Bass Monitoring Committees and of the Environmental 
Assessment (EA), Regulatory Impact Review, and the Initial Regulatory 
Flexibility Analysis (IRFA) are available from: David R. Keifer, 
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, 
Federal Building, 300 South New Street, Dover, DE 19904-6790.
    Comments on the proposed specifications should be sent to: Andrew 
A. Rosenberg, Ph.D., Regional Administrator, Northeast Region, NMFS, 
One Blackburn Drive, Gloucester, MA 01930-2298. Mark on the outside of 
the envelope, ``Comments--1998 Summer Flounder, Scup, and Black Sea 
Bass Specifications.''

FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy 
Analyst, (978) 281-9221.

SUPPLEMENTARY INFORMATION:

Background

    The regulations implementing the Fishery Management Plan for the 
Summer Flounder, Scup, and Black Sea Bass Fisheries (FMP) outline the 
process for specifying annually the allowed catch limits for both 
commercial and recreational fisheries, as well as other management 
measures (e.g., mesh requirements, minimum fish sizes) for these 
fisheries. These measures are specified to attain annual targets 
(either a fishing mortality rate or an exploitation rate) specified for 
each species in the FMP.
    A Monitoring Committee for each species, with members from NMFS, 
the Atlantic States Marine Fisheries Commission (Commission), and both 
the Mid-Atlantic Fishery Management Council (Council) and New England 
Fishery Management Council, are required to conduct a review of 
available information and to recommend catch specifications and other 
management measures necessary

[[Page 54428]]

to achieve the target fishing mortality (F) or exploitation rate for 
each fishery, as specified in the FMP. The Council's Demersal Species 
Committee and the Commission's Summer Flounder, Scup, and Black Sea 
Bass Board (Board) then consider the Monitoring Committee 
recommendations and any public comment in making their recommendations. 
The Council and Board made their annual recommendations at a joint 
meeting held September 23-25, 1997.

Summer Flounder

    The target F specified in the FMP for 1998 is 0.24, the level of 
fishing that produces maximum yield per recruit, F<INF>max</INF>. 
Summer flounder was most recently assessed at SAW-25 (August 1997). 
SAW-25 indicates that the FMP measures have not yet reduced F below 1.0 
and recommended that, in light of the FMP target, total allowable 
landings (TAL) should be no more than 13.889 million lb (6.30 million 
kg) (a commercial quota of 8.333 million lb (3.80 million kg), and a 
recreational harvest limit of 5.556 million lb (2.52 million kg)). In 
addition, SAW-25 recommended that additional measures should be 
considered to minimize commercial and recreational discard mortality. 
The Council's staff and Monitoring Committee both recommended adopting 
the SAW recommendation (13.889 million lb; 6.30 million kg) for 1998. 
This level represents a 25-percent reduction from the initial 1997 TAL 
of 18.518 million lb (8.40 million kg), but a 12-percent reduction from 
the actual 1997 allowed harvest of 15.8 million lb (7.17 million kg) 
after deduction of commercial overages in 1996.
    The Council and Board reviewed the Committee's recommendation and 
voted instead to recommend a 1998 TAL equal to the 1997 level (18.518 
million lb (8.40 million kg): 11.11 million lb (5.04 million kg) 
commercial quota; 7.4 million lb (3.36 million kg) recreational harvest 
limit). SAW-25 estimated that this proposed TAL has a 50-percent 
probability of resulting in F = 0.34.
    The Council and Board also took action to address the SAW-25 
concerns about discards by specifying that 15 percent of the commercial 
quota will be set aside by the states for a bycatch fishery. Since the 
FMP does not specifically include a provision for such an allocation, 
the measure must be enacted by the states. Therefore, the Board adopted 
motions to make it mandatory for the states to implement the bycatch 
set aside, and to implement trip limits with the objective of keeping 
the fishery open all year; these measures will be Commission compliance 
criteria. The Council and Board also voted to retain the existing 
commercial minimum fish size (14 inches (35.6 cm)) and to continue the 
Small Mesh Exemption program.
    NMFS believes that the bycatch allocation is a serious attempt to 
address discards, and is, in effect, a 15-percent reduction in the 
commercial quota allocated to the directed fishery. The bycatch quota 
allocation will extend the season and will reduce waste in the fishery.
    The Council submission notes several factors that it believes will 
increase the probability that a 1998 TAL equal to the 1997 level has a 
reasonable likelihood of attaining F<INF>max</INF>: (1) A new 
retrospective pattern in the assessment that shows for terminal year 
1994, the stock size was underestimated, and for 1994 and 1995 the 
fishing mortality was overestimated; (2) the quota overages in 1997 
will result in reductions to the allowed commercial landings in 1998; 
(3) the reductions in mortality anticipated from measures to reduce 
discard in the commercial fishery (and planned future hook 
specifications to reduce discard in the recreational fishery); and (4) 
the fact that the SAW-25 projections are very dependent upon the 
recruitment estimate for 1996, which may be underestimated.
    NMFS agrees that the first three of these factors are valid points 
to support the Council recommendation. SAW-25 notes that the 
retrospective pattern for 1994-95 alters the pattern noted in the last 
assessment. SAW-25 concluded that the reversal in terminal year F 
estimates may be due to improved accuracy of catch estimates in 1995 
and 1996, more accurate indices of stock size due to revised aging, and 
improved monitoring and estimation of discards. There is no reason to 
expect that these factors will change and, in fact, NMFS agrees that 
there have been substantive improvements in quota monitoring and 
prevention of quota overages over the past year. Therefore, this 
pattern is likely to hold for 1996 estimates. A greater stock size in 
1996 would increase the projected stock size in 1998, which means more 
fish being available for harvest at a given F. This, in turn, increases 
the probability that the proposed TAL of 18.518 million lb (8.4 million 
kg) would achieve F<INF>max</INF> in 1998.
    Based on landings to date, the Council estimates that there will be 
a quota overage in 1997 of 166,935 lb (75,720 kg), or 1.05 percent, if 
there is no further late reporting during 1997 and all states are 
closed with no additional overages. The Council believes that the 
reduction in the final 1998 TAL due to overages, will also contribute 
to increasing the probability in achieving F<INF>max</INF>.
    The Council believes that the 15 percent quota set-aside for 
bycatch fisheries will reduce discards of sublegal fish as well as 
reduce regulatory discards as the result of landing limits in the 
states. A decrease in the amount of discards would increase the 
likelihood that the target F would be achieved in 1998, i.e, summer 
flounder that had been discarded dead would now be landed and apply to 
the quota reducing the amount of fish killed by commercial fishers. 
Projected discard levels for 1998 are 1.76 million lb (0.80 million kg) 
in the commercial and recreational fisheries. In addition, states would 
be required to implement programs to collect additional data on 
discards in the commercial fishery. The Commission voted to make these 
two requirements mandatory compliance measures for the states. As such, 
the states are required to submit plans to meet these requirements so 
that the plans are approved before the beginning of the 1998 commercial 
fishery.
    In addition, the Council anticipates that Amendment 10 will be 
approved, the measure requiring the minimum mesh size throughout the 
net will be implemented mid-year and reductions in F on sublegal fish 
will result. The Council also intends to advocate for a recreational 
hook specification that will reduce recreational discard and discard 
mortality. Among other comments concerning discards, SAW-25 recommended 
that there should be additional measures to reduce discard mortality. 
The measures noted above are efforts to address these comments. These 
measures also will improve the probability of attaining 
F<INF>max</INF>.
    NMFS does not rely strongly on the Council's feeling that 
recruitment for 1996 is underestimated. Raising this as a factor in 
supporting the TAL does not comply with NMFS policy, which is to be 
cautious in the face of uncertainty. The Council explains its rationale 
in its EA. However, there is little information at this time to confirm 
that recruitment for 1996 is underestimated. At the September 1997 
Council meeting, some state representatives indicated preliminary 
results from young-of-the-year surveys might indicate better than 
average recruitment. The surveys, for the most part, were still 
underway. Consequently, the results are inconclusive. The commercial 
quotas by state for 1998 are presented in Table 1.

[[Page 54429]]



                                Table 1.--1998 State Commercial Quotas (Proposed)                               
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                                                                       Share        1998 quota      1998 quota  
                              State                                  (percent)       (percent)         (kg)*    
----------------------------------------------------------------------------------------------------------------
ME..............................................................         0.04756           5,284           2,397
NH..............................................................         0.00046              51              23
MA..............................................................         6.82046         757,841         343,751
RI..............................................................        15.68298       1,742,583         790,422
CT..............................................................         2.25708         250,791         113,757
NY..............................................................         7.64699         849,680         385,408
NJ..............................................................        16.72499       1,858,363         842,939
DE..............................................................         0.01779           1,977             897
MD..............................................................         2.03910         226,570         102,770
VA..............................................................        21.31676       2,368,569       1,074,365
NC..............................................................        27.44584       3,049,589       1,383,270
                                                                                 -------------------------------
    Total.......................................................  ..............      11,111,298      5,039,999 
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* Any differences expressed in the conversion of pounds to kilograms are due to rounding.                       

Scup

    The target exploitation rate for scup in 1998 is 47 percent, the 
rate associated with F = 0.72. The FMP establishes a total allowable 
catch (TAC) that is allocated to commercial (78 percent) and 
recreational (22 percent) sectors. Discard estimates are deducted from 
both TACs to establish TAL for both sectors.
    Scup was most recently assessed in SAW-25 (1997). The assessment 
indicates that F has been above 1.0 for the period 1984-96. SAW-25 
examined 1996 total catch and estimated that a 34-percent reduction 
from that exploitation level would result in a TAC of 7.275 million lb 
(3.30 million kg), which would likely reduce F below 1.0. The staff 
recommended establishing the TAC at that level. The Monitoring 
Committee recommended that the Council should set the TAC no higher 
than that level and should also consider a further reduction.
    The Council and Board adopted the recommendation for a TAC of 7.275 
million lb (3.30 million kg). The resulting commercial TAC is 5.675 
million lb (2.57 million kg). Both groups debated two ways to calculate 
the commercial discard estimate: Employing the same discard estimate 
used in the 1997 specifications (1.103 million lb; 0.50 million kg), or 
using an amount based on the ratio of 1996 estimated landings to 
discards (2.048 million lb; 0.93 million kg). In making its 
recommendations last year, the Council and Board reviewed discard 
estimates based on fishery data and reduced those estimates to reflect 
anticipated reductions in discards associated with the implementation 
of the minimum mesh and minimum fish restrictions under emergency 
regulation in March 27, 1996 (61 FR 13452).
    The Council and Board decided to also use the 1997 discard estimate 
for the 1998 specifications. They chose not to use the estimate based 
on 1996 data because it reflects discards that occurred in the first 
quarter of the year, prior to the emergency measures. The deduction of 
the resulting discard allowance of 1.103 million lb (0.50 million kg) 
from the commercial TAC of 5.675 million lb (2.57 million kg) results 
in a 1998 proposed commercial quota of 4.572 million lb (2.07 million 
kg). This quota represents a 24-percent reduction from the 1997 
commercial quota of 6.0 million lb (2.72 million kg).
    The Council and Board adopted a 20,000-lb (9,072-kg) trip limit in 
the Winter I period, which is to decrease to 1,000 lb (454 kg) when 85 
percent of the Winter I quota is harvested, and an 8,000-lb (3,629-kg) 
trip limit throughout the Winter II period. They retained the 4.5-inch 
(2.0-cm) codend, the threshold limits to trigger the minimum mesh size, 
and the minimum fish size. They also maintained for 1998 the same ratio 
of recreational landings to discards as in 1997. The resulting 
recreational harvest limit is 1.553 million lb (0.70 million kg) --a 
TAC of 1.6 million lb (0.73 million kg) minus a discard estimate of 
0.048 million lb (0.02 million kg). The quota allocated to the periods 
is shown in Table 2.

                              Table 2.--Period Allocations of Commercial Scup Quota                             
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                                                                                         Quota Allocation       
             Period                   Percent         TAC \1\      2Discards \2\ -------------------------------
                                                                                       (LB)          (KG) \3\   
----------------------------------------------------------------------------------------------------------------
Winter I........................           45.11       2,559,992         497,563       2,062,429         935,502
Summer..........................           38.95       2,210,413         429,619       1,780,794         807,755
Winter II.......................           15.94         904,595         175,818         728,777         330,568
                                 -------------------------------------------------------------------------------
    Total.......................          100.00       5,675,000       1,103,000       4,572,000      2,073,824 
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\1\ Total Allowable Catch, in pounds.                                                                           
\2\ Discard estimates, in pounds.                                                                               
\3\ Kilograms are as converted from pounds.                                                                     

    The 1998 commercial quota for the summer period (1,780,794 lb; 
807,755 kg) apportioned among the states according to the percentage 
shares specified in Sec. 648.120(d)(3) is presented in Table 3.

[[Page 54430]]



                       Table 3.--Summer Period (May-October) Commercial Scup Quota Shares                       
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                                                                                          1998 Allocation       
                              State                                    Share     -------------------------------
                                                                     (percent)         (LB)          (KG) \1\   
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Maine...........................................................         0.13042           2,322           1,053
New Hampshire...................................................         0.00004               1               0
Massachusetts...................................................        15.49117         275,866         125,131
Rhode Island....................................................        60.56588       1,078,554         489,224
Connecticut.....................................................         3.39884          60,526          27,454
New York........................................................        17.05295         303,678         137,746
New Jersey......................................................         3.14307          55,972          25,388
Delaware........................................................         0.00000               0               0
Maryland........................................................         0.01288             229             104
Virginia........................................................         0.17787           3,167           1,437
North Carolina..................................................         0.02688             479             217
                                                                 -----------------------------------------------
    Total.......................................................       100.00000       1,780,794        807,755 
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\1\ Kilograms are as converted from pounds and do not add to the converted total due to rounding.               

Black Sea Bass

    The FMP specifies a target exploitation rate of 48 percent for 
1998, equivalent to F = 0.73. This target is to be attained through 
specification of a TAL level that is allocated to the commercial (49 
percent) and recreational (51 percent) sectors; 1998 is the first year 
that a TAL has been specified. The commercial quota is specified on a 
coastwide basis by quarter.
    Black sea bass was also assessed at SAW-25, which estimated that F 
has generally exceeded 1.0 for the period 1984-96. SAW-25 examined 1996 
total catch and estimated that a 33-percent reduction in landings from 
the 1996 level (9 million lb; 4.08 million kg) would be necessary to 
reduce F below 1.0. The staff recommended adopting the TAL associated 
with the 33-percent reduction, 6.173 million lb (2.80 million kg), for 
1998. The Monitoring Committee recommended that the TAL should be no 
higher than the staff recommendation, but that the Council should 
consider a lower TAL because it would be more likely to achieve the 
target exploitation rate.
    The Council and Commission adopted the recommendation for a TAL of 
6.173 million lb (2.80 million kg) for 1998. This TAL results in a 
commercial quota of 3.025 million lb (1.37 million kg) and a 
recreational harvest limit of 3.148 million lb (1.43 million kg). The 
following trip limits were recommended for all commercial gear types: 
11,000 lb (4,990 kg) in Quarter 1 (Q1), 7,000 lb (3,175 kg) in Q2, 
3,000 lb (1,361 kg) in Q3, and 4,000 lb (1,814 kg) in Q4. The Council 
and Board also recommended an increase in the minimum fish size to 10 
inches (25.4 cm), consistent with measures being implemented by the 
Commission and proposed by the South Atlantic Fishery Management 
Council. Additionally, the Council proposes to increase the possession 
limit threshold that would trigger minimum mesh size requirements from 
100 lb (45.4 kg) to 1,000 lb (453.6 kg).
    The Council submission demonstrates that these proposed measures 
are likely to attain the FMP target. Although the stock size is 
uncertain and a 1998 stock size was not projected, exploratory results 
indicate that stock size is stable or has increased in recent years. If 
that is the case, a 33-percent reduction in landings from the 1996 
level should achieve the target exploitation rate. The TAL will control 
mortality on fully recruited, older fish. The minimum size and gear 
regulations will reduce discard and escape mortality of undersized 
black sea bass.

           Table 4.--1998 Black Sea Bass Proposed Quarterly Coastwide Quotas and Quarterly Trip Limits          
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                                                                                            Trip limits         
             Quarter                Percent (%)       Pounds          (kg)\1\    -------------------------------
                                                                                       (lbs)           (kg)     
----------------------------------------------------------------------------------------------------------------
1 (Jan-Mar).....................           38.64       2,385,247       1,081,930          11,000           4,990
2 (Apr-May).....................           29.26       1,806,220         819,288           7,000           3,175
3 (Jul-Sep).....................           12.33         761,131         345,243           3,000           1,361
4 (Oct-Dec).....................           19.77       1,220,402         553,565           4,000          1,814 
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\1\ Kilograms are as converted from pounds and do not add to the converted total due to rounding.               

    NMFS requests public comments on all of the proposed specification 
measures. NMFS also requests, in particular, comments concerning the 
utility of the proposed black sea bass trip limits. The Council and 
Board examined data that demonstrated that the recommended trip limits 
impact only 5 percent of the trips in this fishery. NMFS questions 
whether the effectiveness of these trip limits justifies the expenses 
of enforcement.

Classification

    This action is authorized by 50 CFR part 648 and complies with the 
National Environmental Policy Act.
    These proposed specifications have been determined to be not 
significant for purposes of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. As explained below, this certification is based on an 
assessment of this action under NMFS' long-standing Regulatory 
Flexibility Act guidelines. However, while not required to do so, given 
that understanding the economic impact of this rule is important, NMFS 
prepared an IRFA that describes the impact this

[[Page 54431]]

proposed rule, if adopted, would have on small entities.
    According to unpublished NMFS weighout data (Maine to Virginia, CT 
not included) 715 commercial vessels landed summer flounder, 548 landed 
scup, and 665 landed black sea bass in 1996. In Connecticut, in 1996, 
65 commercial vessels landed summer flounder, 81 landed scup, and 52 
landed black sea bass (Mark Alexander pers. comm.). NMFS permit files 
indicate that, as of October 01, 1997, there were 519, 380, and 243 
party/charter firms holding current summer flounder, scup, and black 
sea bass recreational permits, respectively. Most firms are likely to 
hold permits for more than one of these species, and a more accurate 
estimate of the total number of commercial vessels impacted is 1,022, 
the number of vessels that landed one or more of these species in 1996. 
All these vessels readily fall within the definition of small business, 
so according to guidelines on regulatory analysis of fishery management 
actions, a substantial number of small entities are affected to some 
extent by this action. Of these 1,022 vessels, 140 (13%) would be 
estimated to have a greater than a 5 percent revenue loss.
    NMFS Regulatory Flexibility Act guidelines establish 20 percent of 
small entities being impacted in a significant manner by a particular 
regulatory action as constituting a substantial number of small 
entities. This action does not meet that threshold.
    These three fisheries have been under management for several years, 
and while existing requirements are modified by this action, there are 
no new compliance requirements. Therefore, the action does not result 
in an increase in compliance costs of > 10 percent for 20 percent or 
more of the participants. Since the most severe cumulative impact 
projected for this action is a 30-35 percent reduction in revenue for 7 
vessels (<1 percent of participants), the action would not result in 2 
percent of the entities ceasing operations.
    The IRFA indicates that, while small entities may be impacted by 
this action in a significant manner, the proposed regulatory action 
will not result in significant economic impacts upon a substantial 
number of such entities. However, we recognize that the number of small 
entities that would be significantly impacted is a large, though not 
substantial, number. This fact led the agency to prepare an IRFA though 
none was required.
    These measures are proposed in order to attain the rebuilding 
objectives specified in the FMP for summer flounder, scup and black sea 
bass. The negative economic impacts upon small entities in the 
immediate future will be offset by the future increases in harvest and 
associated revenues anticipated from eliminating overfishing and 
rebuilding a healthy stock.
    The Council considered several alternatives to each of these 
proposed measures. These alternatives to the proposed rule were 
ultimately rejected by the Council since those measures which 
significantly miminized economic impact on small entities did not 
accomplish the rebuilding objectives of the FMP for each species, and 
those that did accomplish those objectives did not minimize impacts on 
small entities. The Council adopted the measures proposed here as those 
measures which achieved a balance for both. A copy of this analysis is 
available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: October 16, 1997.
David L. Evans,
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. 648.14, paragraph (u)(1) is revised to read as follows:


Sec. 648.14  Prohibitions.

* * * * *
    (u) * * *
    (1) Possess 1,000 lb (453.6 kg) or more of black sea bass, unless 
the vessel meets the minimum mesh requirement specified in 
Sec. 648.144(a).
* * * * *
    3. In Sec. 648.143, the first sentence of paragraph (a) is revised 
to read as follows:


Sec. 648.143  Minimum sizes.

    (a) The minimum size for black sea bass is 10 inches (25.4 cm) 
total length for all vessels issued a moratorium permit under 
Sec. 648.4(a)(7) which fish for or retain black sea bass in or from 
U.S. waters of the western Atlantic Ocean from 35 deg.15.3' N. lat., 
the latitude of Cape Hatteras Light, North Carolina, northward to the 
U.S.-Canada border. * * *
* * * * *
    4. In Sec. 648.144, paragraph (a)(1)(i) is revised to read as 
follows:


Sec. 648.144  Gear restrictions.

    (a) * * *
    (1) * * * (i) Otter trawlers whose owners are issued a black sea 
bass moratorium permit and that land or possess 1,000 lb or more (453.6 
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.
* * * * *
[FR Doc. 97-27821 Filed 10-16-97; 1:12 pm]
BILLING CODE 3510-22-P