[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27710-27750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13707]



      

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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 651



Northeast Multispecies Fishery; Amendment 7; Final Rule

Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules 
and Regulations

[[Page 27710]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 651

[Docket No. 960216032-6138-03; I.D. 021296E]
RIN 0648-AI94


Northeast Multispecies Fishery; Amendment 7

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

ACTION: Final rule.

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

SUMMARY: NMFS issues this final rule to implement approved measures 
contained in Amendment 7 to the Northeast Multispecies Fishery 
Management Plan (FMP) including a resubmitted part of the amendment. 
These regulations: Establish an annual target Total Allowable Catch 
(TAC) for regulated species; accelerate the current days-at-sea (DAS) 
effort reduction program; eliminate most of the exemptions to the 
effort control program and revise the requirements for taking time out 
of the fishery; add new closed areas; restrict fisheries in the Gulf of 
Maine/Georges Bank (GOM/GB) and Southern New England (SNE) regulated 
mesh areas having more than a minimal bycatch of regulated species; 
establish the current experimental Nantucket Shoals dogfish fishery as 
an exempted fishery; modify the permit categories; establish 
restrictions on charter/party and recreational vessels; and revise and 
expand the existing framework provisions. The intended effect of this 
rule is to rebuild multispecies stocks. In addition, NMFS informs the 
public of the approval by the Office of Management and Budget (OMB) of 
the collection-of-information requirements contained in this rule and 
publishes the OMB control numbers for these collections.

EFFECTIVE DATE: July 1, 1996.

ADDRESSES: Copies of Amendment 7, its regulatory impact review (RIR) 
and the initial regulatory flexibility analysis (IRFA) contained within 
the RIR, and the Final Supplemental Environmental Impact Statement 
(FSEIS), and copies of the resubmitted part and its supporting 
documents, are available from Douglas Marshall, Executive Director, New 
England Fishery Management Council, Suntaug Office Park, 5 Broadway (US 
Rte. 1), Saugus, MA 01906-1097. Comments regarding the collection-of-
information requirements contained in this final rule should be sent to 
Andrew A. Rosenberg, Director, Northeast Region, NMFS, One Blackburn 
Drive, Gloucester, MA 01930-2298 and to the Office of Information and 
Regulatory Affairs, OMB, Washington, D.C. 20503 (Attention: NOAA Desk 
Officer).

FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, Fishery Policy 
Analyst, 508-281-9252.

SUPPLEMENTARY INFORMATION: This final rule implements approved measures 
contained in Amendment 7 to the multispecies FMP which was approved by 
NMFS on behalf of the Secretary of Commerce (Secretary) on May 16, 
1996. Three measures contained in Amendment 7, as originally submitted, 
were disapproved by NMFS on behalf of the Secretary when they were 
submitted and consequently were not a part of the proposed rule 
published on March 5, 1996 (61 FR 8540). Reasons for disapproval of 
those measures were given in the proposed rule and are not repeated 
here. Two of these measures, a provision that would allow additional 
DAS for vessels enrolled in the Large Mesh Individual DAS category and 
a 300-lb (136.1-kg) possession limit when fishing in an exempted 
fishery with 8-inch (20.32-cm) mesh, were resubmitted by the New 
England Fishery Management Council (Council). The latter measure was 
again disapproved.
    The provision that would allow additional DAS for vessels enrolled 
in the Large Mesh Individual DAS category was contained in a proposed 
rule published on April 18, 1996 (61 FR 16892). During the public 
comment period, no comments were received. This measure was approved by 
NMFS on behalf of the Secretary on May 17, 1996, and is also 
implemented by this rule.
    Details concerning the justification for and development of 
Amendment 7 were provided in the notice of proposed rulemaling (61 FR 
8540, March 5, 1996) and are not repeated here.
    In that notice, NMFS requested the public to comment on all 
proposed measures, but to focus on several measures of concern in 
particular. After NMFS reviewed the amendment and the public comments 
received relative to the amendment and the proposed rule, NMFS 
disapproved three additional measures based on its determination that 
they are inconsistent with one or more of the national standards of the 
Magnuson Fishery Conservation and Management Act (Magnuson Act) or 
other applicable law. These measures are: A call-in requirement for 
charter/party vessels; counting DAS for gillnet vessels by the amount 
of time that gillnet gear is in the water; and a winter flounder 
possession allowance when fishing in the Mid-Atlantic regulated mesh 
area.

Disapproved Measures

    Amendment 7 imposes new restrictions on charter and party vessels. 
Such vessels may, under certain circumstances and criteria, fish under 
either the recreational or commercial requirements of these 
regulations. A call-in requirement for charter/party vessels was 
proposed by the Council to provide a way for law enforcement officers 
to discern which of these requirements a vessel was subject to. This 
measure has been disapproved because NMFS believes that sufficient 
means exist to distinguish recreational and commercial activities. 
Further, the U.S. Coast Guard (USCG) and NMFS Office of Law Enforcement 
have recommended against adoption of this measure because it would not 
improve enforceability of the charter/party restrictions. This 
recommendation led the Council, in their comments on the proposed rule, 
to also recommend against adoption of this measure. Because this 
requirement would place a significant administrative burden on the 
call-in system with no discernable benefit, it is neither consistent 
with National Standard 7 nor Executive Order 12866 and is disapproved.
    The second disapproved measure proposed counting gillnet DAS as 
time when gear is in the water, rather than time when the vessel is 
away from the dock. The Council proposed this measure in an attempt to 
resolve perceived inequities in the DAS accounting methods for fixed 
gear versus mobile gear. However, the proposal did not adequately 
resolve enforcement difficulties of monitoring the amount of time gear 
was in the water or the administrative problems in determining baseline 
allocations for gillnet Individual DAS category vessels. Moreover, the 
Council itself has expressed concern with this measure and has 
initiated the process to reconsider the method for counting gillnet DAS 
structure. Because the administrative burden of establishing a method 
of accounting and allocating DAS is extensive, the efficiency standards 
of E.O. 12866 and National Standard 7 would be compromised by the 
almost immediate change to the system that the Council is 
contemplating. Disapproval of this measure means that DAS for gillnet 
vessels will be counted in the same way that DAS are counted for all 
other vessels, as time away from port.

[[Page 27711]]

    The measure that would have allowed a bycatch of winter flounder by 
vessels fishing in the Mid-Atlantic regulated mesh area (10 percent by 
weight of all other species on board or 200 lb (90.7 kg), whichever is 
less) has also been disapproved. The most recent assessment of winter 
flounder advises that fishing mortality should be reduced immediately 
to the lowest possible level. Therefore, there is no justification for 
treating this regulated species any differently than others in similar 
condition. Although the cap on the allowed catch would discourage 
vessels from targeting winter flounder, this measure would reduce the 
beneficial conservation effect of the DAS program on the winter 
flounder resource and is, therefore, inconsistent with National 
Standard 1.

Approved Measures

    Amendment 7 establishes a procedure for setting annual target TAC 
levels for specific cod, haddock, and yellowtail flounder (CHY) stocks 
(GB CHY, SNE yellowtail flounder, and GOM cod), and an aggregate TAC 
for the other regulated species (pollock, redfish, white hake, witch 
flounder, American plaice, winter flounder and windowpane flounder). 
The procedure would be used annually to set target TACs, with the 
exception of target TACs for the 1996 fishing year (May 1, 1996, 
through April 30, 1997), which are set as follows:

                    Table 1.--1996 TAC Specifications                   
------------------------------------------------------------------------
                                                                  1996  
                                                                 Target 
                         Species/area                             TACs  
                                                                 (metric
                                                                  tons) 
------------------------------------------------------------------------
Georges Bank cod..............................................     1,851
Georges Bank haddock..........................................     2,801
Georges Bank yellowtail flounder..............................       385
Gulf of Maine cod.............................................     2,761
Southern New England yellowtail flounder......................       150
Aggregate for remaining regulated species.....................    25,500
------------------------------------------------------------------------

    DAS allocations are reduced in two equal increments at the start of 
the 1996 and 1997 fishing years from current levels to the full 50 
percent reduction called for originally in the final year of Amendment 
5 to the FMP. In addition, because the effective date of this rule is 2 
months after the start of the 1996 fishing year, which commenced on May 
1, 1996, 1996 DAS allocations are prorated based on the amount of time 
remaining in the 1996 fishing year, or 83 percent (10 months/12 
months).
    Amendment 7 eliminates the current exemptions to the DAS program 
(vessels 45 ft (13.7 m) and less, limited access Hook-Gear and Gillnet 
vessels) and allocates either Individual DAS or Fleet DAS to these 
vessels, except for vessels 30 ft (9.1 m) or less in length. Limited 
access vessels 30 ft (9.1 m) or less in length may choose either to 
fish under the DAS program or be restricted to a possession limit of 
CHY up to a maximum combined weight of 300 lb (136.1 kg).
    This rule eliminates the existing requirement for vessels in the 
Fleet DAS category to take blocks of time ``out of the multispecies 
fishery.'' It also eliminates the layover days currently required after 
completion of a multispecies trip. However, all vessels subject to the 
DAS effort control program are required to take one 20-consecutive-day 
block of time out of the multispecies fishery between March 1 through 
May 31. Vessels 30 ft (9.1 m) or less in length issued a Small Vessel 
permit and vessels issued an open access Handgear permit are not 
allowed to fish for, possess, or land regulated multispecies between 
March 1 and March 20.
    The existing time/area closures to sink gillnet vessels specified 
to reduce harbor porpoise bycatch are now also closed to other gear 
types as part of the effort reduction program. These areas are known as 
the Northeast Closure Area, the Mid-Coast Closure Area, and the 
Massachusetts Bay Closure Area. Because Small Mesh Area 1 lies entirely 
within the Mid-coast Closure Area, the season termination date for this 
exemption is changed from November 15 to October 31, which coincides 
with the closure of the Mid-coast area.
    This final rule prohibits vessels from fishing in the GOM/GB and 
SNE regulated mesh areas, unless they are fishing in an authorized 
multispecies fishery, under a scallop DAS, or in an exempted fishery. 
An exempted fishery is one in which it has been determined that there 
is a minimal bycatch of regulated species.
    The existing Nantucket Shoals experimental dogfish fishery has been 
found to meet the criteria for this exemption. This rule permanently 
exempts that fishery from June 1 through October 15.
    Because the exemptions to the DAS program are removed by the 
amendment, some limited access permit categories have been eliminated 
and vessels in those categories have been reassigned to an appropriate 
category. A new category is established for vessels in the current 
Hook-Gear open access category and an opportunity to qualify for a new 
limited access Hook-Gear permit under specified criteria is granted. 
New limited access permit categories are also established for vessels 
electing to fish with large mesh. Vessels reassigned as a result of 
this rule will have 45 days from the date of publication of this rule 
to change their 1996 permit category.
    Three new open access permit categories established are Handgear, 
Charter/Party and Scallop Multispecies Possession Limit, each with 
specific possession and gear restrictions.
    This rule imposes several new restrictions for recreational and 
charter/party vessels, including a 20 inch (50.8 cm) minimum fish size 
for cod and haddock for the first year of the plan, increasing to 21 
inches (53.3 cm) in the second year, a prohibition on the sale of 
multispecies finfish, and a 10 fish possession limit on cod and 
haddock, combined, for individual recreational anglers.
    The FMP's existing framework provisions are revised to remove the 
10 percent cap on annual reductions in fishing mortality and to allow 
implementation of measures to protect right whales and other marine 
mammals through the framework process. An annual process to set target 
TACs, review progress towards fishing mortality goals and to make any 
necessary changes in the management program is also established.
    The Mid-Atlantic regulated mesh area is redefined to include all 
New York and Connecticut state waters.
    Vessels fishing in the SNE regulated mesh area are authorized to 
retain a bycatch of skate or skate parts up to 10 percent of the total 
weight of other fish possessed on board.
    A provision is added that allows the costs of observer coverage to 
be funded by sources other than NMFS.
    The haddock possession limit is increased from 500 (227 kg) to 
1,000 lb (453.6 kg) for vessels fishing under a multispecies DAS. The 
tote and box volumetric equivalency measure for determining the weight 
of possession limits is eliminated, instead, compliance with possession 
limits will be determined by shoreside weighing. However, vessels will 
be required to carry one tote on board for use by USCG boarding parties 
to estimate possible excessive catches.

Comments and Responses

    Written comments were submitted by the Associated Fisheries of 
Maine, Offshore Mariners Association, Inc., Gloucester Fishermen's 
Wives Association, Massachusetts Fishermen's Partnership, Gloucester 
Fishermen's Committee, Maine Department of Marine Resources (DMR), 
Wildlife Habitat Preservation Association, Inc.,

[[Page 27712]]

Senator Judd Gregg, Senator Bob Smith, Senator Olympia J. Snowe, 
Senator William S. Cohen, Congressman Patrick J. Kennedy, Seafarers 
International Union of North America, Conservation Law Foundation, Mass 
Audubon Society, The Groundfish Group of Associated Fisheries of Maine, 
Associated Fisheries of Maine, Maine Fishermen's Wives Association, 
Federation of Inshore Seafood Harvesters, Darling Marine Center of the 
University of Maine, New Bedford Seafood Coalition, Massachusetts State 
Senator Bruce Tarr, Gloucester United, Vessel Services Inc., the New 
England Fishery Management Council (NEFMC), Center for Marine 
Conservation, Environmental Defense Fund, Cape Cod Commercial Hook 
Fishermen's Association, Resource Trading Co., King & Sons Fishing Co., 
Inc., Cape Ann Gillnetters' Association, Action, Inc., Wellspring 
House, Inc., Massachusetts Lobstermen's Association, Inc., Connecticut 
Department of Environmental Protection (DEP), the Marine Mammal 
Commission, and approximately 290 individuals.

1. Comments in Favor of Approval of Amendment 7

    Comment 1: An association and several environmental organizations 
stated that Amendment 7 should be approved, and 136 individuals stated 
that Amendment 7 should be approved without change. Many commenters 
expressed concern for the health and viability of the resource and 
urged the Secretary not to give in to pressure to weaken, modify or 
otherwise deviate from the plan.
    Response: Most of the measures proposed in Amendment 7 have been 
approved.

2. Comments on Elimination of the Open Access Possession Limit and 
Hook-Gear-Only Permit Categories

    Comment 2: Several commenters opposed elimination of the 
Possession-Limit permit category and/or the 500-lb (226.8-kg) allowance 
of regulated species associated with this permit. These comments are 
summarized as follows:
    A commenter stated that he invested in his vessel while fishing 
under the 500-pound (226.8-kg) possession limit in the open access 
category and that under Amendment 7, he will lose his right to do so, 
due to the elimination of the open access possession limit permit.
    An association stated that vessels in the Possession Limit permit 
category that may have qualified for a limited access permit under 
Amendment 5 should be allowed to prove their eligibility and move into 
a DAS category. The commenter further explained that a few vessels 
opted for a Possession Limit permit though their history would have 
qualified them for a limited access permit under the DAS program. The 
association further stated that it would have been impossible for these 
vessel owners to know that this permit category would be eliminated at 
some future date.
    Another commenter stated that elimination of the Possession Limit 
permit category denies him access to the whiting fishery. He stated 
that his two vessels surrendered their limited access multispecies 
permits during 1996, because he lengthened his vessels beyond the 
upgrade restrictions of the multispecies FMP to maximize their 
productive capacities before the effective date of Amendment 5 to the 
Atlantic Mackerel, Squid and Butterfish FMP (which allows no increase 
in size after implementation). He stated that since the vessels only 
fished a few months each year for whiting, he had planned to continue 
to do so under the Possession Limit category.
    Another commenter stated that under Amendment 7 those fishers 
formerly fishing for whiting and other small mesh species in the 
experimental whiting grate fishery, to use as bait under the Possession 
Limit category will not be able to continue this practice. He stated 
that this gives bluefin tuna fishers with a limited access multispecies 
permit an unfair advantage.
    Congressman Patrick J. Kennedy (RI) forwarded an association's 
petition containing 98 signatures and 23 individual letters, all 
concerned with the elimination under Amendment 7 of the possession 
limit of regulated species bycatch allowed when fishing for non-
regulated species out of the DAS effort reduction program. The 
association also forwarded the petition and letters directly to the 
Director, Northeast Region, NMFS (Regional Director). They further 
stated that the marketable bycatch of regulated species would be 
wastefully discarded. Twenty-three of the commenters stated that they 
would have to fish day and night to fully utilize the full 24 hours of 
the groundfish day DAS. They all sought reinstatement in Amendment 7 of 
the possession limit of regulated species when fishing for non-
regulated species out of a DAS effort control program.
    Another commenter stated he does not qualify for the new limited 
access hook permit, because he did not land 500-lb (226.8-kg) of 
regulated species during the qualifying year, which is one of the 
qualifying criteria. He said that it is arbitrary and unfair to make 
just that permit category meet certain criteria. He further asked 
whether any consideration was given for illness or investments. He 
added that the labor intensive, environmentally sound hook-fishery had 
no negative impacts on the control of future effort.
    The Maine DMR commented favorably on the open-access handgear-only 
permit category provision of Amendment 7. It added that this permit 
category provides a lowcost, egalitarian point of entry for new 
participants in the fishery within sensible conservation rules.
    The Maine DMR commented in opposition to the eligibility 
requirements for vessels desiring to qualify for the new limited access 
hook-gear permit-category, specifically, the requirement that 
applicants must have filed logs for their vessels by January 26, 1996 
for the period June 1, 1994-June 1, 1995. It stated that since NMFS has 
allowed logbook filers to file late this year as part of a well-
publicized education effort designed to achieve high compliance by next 
year, it is unreasonable and inequitable to disallow the same extension 
to those in the open access hook permit category, which was less 
intensively regulated under Amendment 5. It explained that participants 
in this category are less likely to have understood and complied with 
log requirements.
    Response: The Council and NMFS are aware that certain participants 
in the groundfish fishery may be affected by the elimination of the 
open access possession limit permit category, but NMFS has determined 
that conservation needs outweigh the negative impact on certain 
individual fishers.
    The 500-lb (226.8-kg) regulated species catch allowance is 
eliminated by this rule. The control date for entry into the 
multispecies fishery was February 21, 1991, at which time the public 
was put on notice that future entry into the fishery could be limited 
and that those investing in the fishery after that date were doing so 
at risk. The condition of the stock complex has declined since that 
time and more restrictive measures have been implemented in Amendments 
5 and 6 to the FMP. Amendment 7 eliminates the 500-lb (226.8-kg) 
possession allowance in part because of its open-access nature. While 
Amendment 7 imposed significant restrictions on the directed 
multispecies fleet through DAS reductions, allowing a potentially 
unlimited number of vessels to land 500 lb (226.8 kg) of regulated 
species per trip would be inconsistent with the goals of the FMP.
    Regarding the commenter's concerns about being ``shut out'' of the 
whiting

[[Page 27713]]

fishery as a result of disapproval of the Limited-Access Possession 
Limit permit category, NMFS disapproved that category because of 
several flaws that were described in the proposed rule. The Council has 
reconsidered the disapproval of this category and will resubmit a 
revised proposal that, if approved, would allow open access to the non-
regulated multispecies fisheries, i.e., whiting, red hake and ocean 
pout. One of the improvements made to the permit proposal by the 
Council is the designation as an open access permit, which exempts 
vessels in this category from the upgrade requirements.
    As to eligibility requirements for the new limited-access hook-gear 
permit category, Amendment 7's deadline for filing logs for the period 
June 1, 1994-June 1, 1995 was established as January 26, 1996, for 
purposes of qualifying into the fishery. This deadline is much more 
liberal than the Council's requirement that all logs be filed in a 
timely manner, i.e., within 15 days of the fishing trip. Additionally, 
those applicants denied a new limited-access hook-gear permit may 
appeal any denial under the multispecies regulations.
    And finally, the commenter concerned about qualifying for the Hook-
Gear-Only permit will have two options: (1) A vessel owner may elect to 
fish with hand-held gear only and land up to a total of 300 lb (136.1 
kg) of CHY, or (2) a vessel owner may elect to apply for the hook-only 
limited access permit and, if denied, may appeal the denial on the 
basis that circumstances beyond the applicant's control prevented 
attainment of the qualifying criteria.

3. Comment on the Framework Provision for Annual Adjustments to TACs 
and Restrictions

    Comment 3: The Maine DMR stated that a 2-year adjustment process, 
with frameworks in the interim, would provide a more constructive and 
science-based process than the annual adjustment process.
    Another commenter stated that the tight timeline established in the 
framework adjustment process that provides only 1 month prior to the 
beginning of a fishing year to adapt to the adjusted measures is 
insufficient.
    Response: The changing conditions of fish stocks warrant that 
frameworking occur at least annually, while considering factors such as 
the most recent landings data as it compares with the previous year's 
target total allowable catches. The timeline established for the 
framework adjustment process was decided on after consideration of 
comments and public input during public hearings on the Amendment. 
Similarly, the adjustments that may be proposed as a result of the 
framework process will undergo a public participation period, during 
which sufficiency of notice prior to the fishing year can be factored 
in as the Council deliberates on the adjustments. The alternatives to 
this timeframe are to reduce the time period for public input or, to 
begin the adjustment process earlier in the year. This latter 
alternative is not desirable because important data and information 
about the fishery that should be considered will most likely be 
unavailable earlier in the year.
    In addition, while a final rule may be published 1 month prior to 
its effective date, this process begins 6 months in advance of the next 
fishing year to allow the public several opportunities to participate 
in development of measures, to become aware of changes that would 
result from implementation, and to prepare for implementation in its 
final form.
    Comment 4: An environmental organization stated that the process 
for annual review and adjustment of management measures described in 
Sec. 651.40(a) of the proposed rule is too open-ended and likely to 
result in a stalemate between the Council and the Regional Director. 
Under Sec. 651.40(a)(6), if the Council fails to submit a 
recommendation to the Regional Director that meets the FMP goals and 
objectives, and the Council also rejects all other options developed by 
the Multispecies Monitoring Committee, then the Regional Director must 
resort to emergency regulations and/or a Secretarial amendment.
    The commenter recommended that Sec. 651.40(a) be disapproved (in 
whole or in part) until it includes default annual adjustments that 
reflect how the actual catch compares to the target TACs or target 
catch rates. It opines that the catch of at least cod and yellowtail 
flounder in the 1996 fishing year is likely to far exceed the target 
TACs, so that DAS reductions initially assigned for the 1997 fishing 
year would be grossly inadequate to reduce fishing mortality to 
F<INF>0.1. The commenter included suggested language for a default 
annual adjustment specification, which it feels is needed because the 
Council has a history of being unable to make decisions quickly for 
conservation purposes that are unpopular with commercial fishermen.
    Response: If the resource continues to decline in the short-term, 
NMFS expects the Council to be confronted with difficult decisions 
regarding adjustments to measures, just as it was confronted by 
difficult options for this Amendment. The framework provision of the 
FMP was approved because NMFS believes the Council will submit an 
appropriate recommendation even if those of the Monitoring Committee 
are rejected. The default mechanism, in terms of overall resource 
protection, is to keep present restrictions in place. To disapprove 
this measure would leave no adjustment mechanism in place.

4. Comments on the Need for Amendment 7 and the Scientific Basis for 
the FMP

    Comment 5: A commenter stated that the proposed rule identifies 
only a GB and SNE yellowtail flounder stock in Table 1 of its 
specification of 1996 TACs. He points out that NMFS, in its ``Status of 
Fishery Resources off the Northeastern U.S. Technical Memorandum-NMFS-
NE-108,'' continues to identify and characterize a Cape Cod and mid-
Atlantic stock as well. His concern is that this omission may lead to 
inappropriate catches based solely on the status of the GB and SNE 
stocks. He recommends that NMFS issue a separate TAC for at least the 
Cape Cod stock of yellowtail flounder for 1996 and that the Northeast 
Multispecies Monitoring Committee consider continuing this practice in 
subsequent TAC specifications.
    Response: Tagging studies and geographical patterns of landings and 
survey data indicate discrete yellowtail stocks in GB, SNE, Cape Cod 
and the Mid-Atlantic. However, the Middle Atlantic and Cape Cod 
yellowtail stocks have historically been very small relative to the SNE 
and GB stocks, respectively. While NMFS recognizes that this may no 
longer be the case, the TACs specified are conservative. The quality of 
available assessment data for the Mid-Atlantic and Cape Cod stocks is 
insufficient to permit a quantitative estimate of stock abundance, 
exploitation rates or TACs. The status of all of these stocks is 
essentially the same, in that they are all overexploited. Therefore, it 
is appropriate to include yellowtail flounder from Cape Cod with the 
Georges Bank TAC for that species and yellowtail flounder from the Mid-
Atlantic with the Southern New England TAC for that species for 
management purposes. The Council will have the option of including 
these stocks within existing TACs or to specify a separate TAC for the 
Cape Cod stock, if necessary. At present there seems to be little 
incentive for directed fishing on these stocks because of their low 
abundance.
    Comment 6: An organization stated that Amendment 7 is unnecessary 
at this time, and, in fact, Amendment 5 is

[[Page 27714]]

working and needs more time to reach the goals of the Council and NMFS.
    Response: Amendment 5 was designed to correct the overfished 
condition on the Multispecies Fishery by a 50 percent reduction of 
fishing mortality over a 5 to 7-year period. However, by the time this 
amendment took effect (in 1994), spawning stock biomass levels for GB 
cod, haddock and yellowtail were at or near historic lows and 
reductions in fishing mortality of more than 50 percent were needed 
immediately to arrest further declines of GB cod and yellowtail 
(advisory presented at the August 1994 Stock Assessment Review 
Committee (SARC) plenary). By 1993, landings for GB cod, haddock and 
yellowtail had declined to 30 percent of MSY; 1994 landings were 
projected to decline to 23 percent of MSY; and further declines were 
projected for 1995. As reported at the Plenary, GB haddock and 
yellowtail stocks have collapsed--and it remains clear that to avert 
stock collapse for GB cod, and to begin the rebuilding process, greater 
reductions in fishing mortality over a shorter period of time are 
necessary than provided for in Amendment 5.
    Comment 7: Senator Olympia J. Snowe (ME) and Senator William S. 
Cohen (ME) requested that the Secretary establish an independent panel 
to review the science that is the basis of this plan. They further 
suggested that such a review should be conducted during the first year 
of the plan's implementation, and its results used as adjustments for 
the second year of the plan are formulated. Additionally, they 
requested that the peer review include a reassessment of the science 
that supports the FMP and specifically, they would require that 
scientific research must address the effectiveness of different 
management tools including seasonal area closures and gear 
modifications like mesh size.
    Response: An intensive peer-review process already exists, through 
the Stock Assessment Workshop (SAW). Assessments are prepared by 
subcommittees including scientists from state and Federal agencies and 
academic institutions, reviewed by the Stock Assessment Review 
Committee (SARC), and presented to managers at SAW Plenary sessions. 
Industry or other interested parties are welcome to participate. The 
SARC, and the Multispecies Monitoring Committee (MMC), created under 
the terms of Amendment 7, will be available for periodic reviews of the 
science including evaluations of the relative effectiveness of 
different management tools. The Council can instigate such a review 
through its Science and Statistical Committee.
    Comment 8: An environmental organization stated that the measures 
specified in the proposed rule cannot result in the 80-percent 
reduction in fishing mortality rate (F) that is needed to reach the 
Amendment's target of F<INF>0.1, because the DAS reduction specified in 
Sec. 651.22(b) for the 1997 fishing year is only 50 percent from the 
initial baseline. The F reduction that will result from a 50-percent 
reduction in DAS is certain to be less than 50 percent because of 
compensatory increases in other aspects of fishermen's efforts. It 
added that no analyses were presented to the Council during development 
of Amendment 7 that suggested that other existing or proposed 
management measures for groundfish (including the closed areas) would 
accomplish the remaining required reduction in F.
    Response: NMFS understands that the DAS reduction target is 50 
percent at the end of a 2-year timeframe. Analyses of the effects of 
the closed areas implemented by this rule were presented to the Council 
which projected that an additional 30 percent reduction in F would be 
realized through modifications which have been made to time/area 
closures and inclusion of additional vessel classes under DAS limits. 
Also, the Council will adjust the target TAC (upward or downward) as 
stock size changes are observed and will adjust the management measures 
as needed to keep catches below the target.
    Comment 9: An environmental organization stated that improvements 
in spawning stock biomass (SSB) expected under the assumptions built 
into the proposed rule should be clearly predicted, and used as a 
secondary yardstick for the performance of the overall program. Any 
time actual estimated SSBs fall significantly below predicted SSBs, 
reanalysis of SSB and population projections should occur, and 
emergency measures should be adopted to restore progress toward 
threshold SSBs. For this purpose of establishing a trigger for 
reanalysis and emergency measures, ``fall significantly below'' should 
be defined precisely in advance as a percentage shortfall as low as 
possible approaching 10 percent, but above the statistical margin of 
error.
    Response: Such questions would fall within the purview of the SARC 
and the MMC. NMFS expects that the relative effectiveness of different 
measures will be examined routinely as part of the monitoring process 
for Amendment 7.
    Comment 10: An environmental organization stated that tests should 
be designed to measure the efficacy of each important management 
measure, such that its contribution to the overall mortality reduction 
program can be determined, and that such additional mortality reduction 
measures can be implemented with greater certainty when target TACs are 
exceeded. Examples include the seasonal closure of certain areas, which 
will likely reduce seasonal mortality, but which may or may not reduce 
annual fishing mortality, and which may or may not enhance spawning 
success and recruitment to the overall population.
    Response: Again, such questions would fall within the purview of 
the SARC and the MMC.
    Comment 11: An environmental organization stated that GOM cod 
stocks remain overexploited and are inadequately addressed in the 
proposed rule. It added that the proposed rule establishes a biological 
reference point for GOM cod with fishing mortality equal to F(max)--
potentially too high for this stock, especially in light of the 
uncertainty in the relationship between fishery management practices 
and actual fishing mortality--and a target TAC that is very high.
    Response: Fishing at Fmax (0.27) for GOM cod would represent a 70-
percent reduction in fishing mortality from 1993 levels, and is in fact 
below the overfishing definition level (F20%=0.35) for this stock. NMFS 
believes, based on the best scientific information, that specification 
of a TAC corresponding to the Fmax level for this stock is appropriate 
as a first step in the rebuilding process. Effects and implications 
would be subject to review by the MMC.

5. Comments on the Area Closures and Time Periods

    Comment 12: The Maine DMR stated that the GOM closures should be 
replaced with targeted closures of specified areas based on spawning, 
pre-spawning and juvenile fish habitats. DMR added that the proposed 
GOM closures are unfocused and a relatively ineffective conservation 
tool that will have serious impacts on its industry.
    Senator Olympia J. Snowe (ME) and Senator William S. Cohen (ME) 
urged that any additional closures be carefully targeted to protect 
specific areas with value as spawning, pre-spawning, and juvenile fish 
habitats.
    A commenter stated that the November and December (Mid-coast) 
closure may have validity for gillnets as pertains to harbor porpoises, 
but that draggers have zero interaction with harbor porpoises.
    A commenter stated that the November and December closure time

[[Page 27715]]

period would cause New Hampshire day boats (trawlers) to tie to the 
dock during this 2-month period.
    Another commenter stated that the Mid-coast closure area is subject 
to an additional 30-day timeframe as compared to the other two closure 
areas. The Mid-coast small vessel fleet thus bears an additional burden 
when compared to other areas with 30-day closures.
    Response: The GOM closures were adopted as a default mechanism to 
meet Amendment 7 goals while other possible closed areas were 
investigated. Because the purpose of the GOM closed areas is to reduce 
fishing mortality by the shortfall created when DAS reductions alone 
were insufficient (and not solely to protect harbor porpoises), the 
impacts on the industry are acknowledged and incorporated into the 
analysis of impacts of Amendment 7. The GOM closures, which were 
previously in place to protect harbor porpoises, now serve a dual 
purpose until alternative areas are identified. A Council subcommittee 
has been assigned to examine alternative areas having equivalent or 
greater value in reducing fishing effort and will consider changing the 
area closures through the framework adjustment process.
    Amendment 7 does not require vessels to tie to the dock during the 
closure periods, but many smaller vessels are not able to fish safely 
offshore, beyond the GOM area closures. Again, the purpose of the 
closed areas is to reduce fishing effort by the shortfall created when 
DAS alone were insufficient.
    An alternative to the closed areas was to reduce DAS further, but 
that alternative was rejected by the Council based, in part, on public 
and industry comment which indicated a preference for flexibility.
    During the GOM closures, small vessel owners have the option of 
tying to the dock, seek alternative ports or alternative fisheries. In 
regard to the 2-month time period, although this closure is for a 
longer period of time, it occurs at a time of the year when weather is 
a factor and fishing activity is limited. Thus, to achieve equivalent 
conservation benefit, a longer period of time is necessary as compared 
to a closure occurring in the spring, summer or early fall months.
    Comment 13: A commenter stated that the larger vessels, which 
account for the most groundfish harvesting capacity and production, 
have the capability to merely exit the area closures and fish outside 
the boundaries thus not contributing to any effort reduction or fishing 
mortality reduction. The commenter further stated that the inshore and 
small boat sector thus bears the most burden of the closures and added 
that most of these vessels must now enroll in the DAS program due to 
elimination of the 45-ft (13.7-m) exemption. The commenter summarized 
that this is unfair and inequitable amongst users and participants and 
creates an unfair allocation circumstance.
    Response: Amendment 7 implements a broad set of measures affecting 
all sectors of the industry necessitated by severe overfishing on cod, 
haddock and yellowtail flounder. Larger vessels, unlike small inshore 
vessels, contribute to the effort reduction goals because they are 
subject to additional closed areas offshore where concentrations of 
multispecies are traditionally found. Unlike the inshore areas, which 
are closed for limited periods, these offshore areas are closed 
permanently. Amendment 7 eliminates some of the exemptions from the DAS 
program that were established by Amendment 5 to ensure that all vessels 
contribute toward the rebuilding goals. Amendment 5 tried to alleviate 
some of the burden on small vessels, but it is no longer possible to do 
this without sacrificing the more rigorous conservation objectives of 
Amendment 7.
    Comment 14: A commenter noted that Amendment 7 does not exempt mid-
water trawls from the closed areas, but authorizes their exemption at 
some future time based on the analysis of observer data. The commentor 
added that in a report given by the Regional Director to the Council, 
the Regional Director stated that preliminary data showed zero bycatch 
of groundfish in mid-water trawls. If the final analysis bears this 
out, the commenter requested that mid-water trawls be exempt from the 
closed areas. The commentor added that such an exemption would not only 
address the high cost of rerigging but would also address the 
possibility of being precluded from large areas of potential herring 
catch grounds. The commentor indicated a willingness to alleviate any 
enforcement concerns by placing Vessel Monitoring Systems (VMSs) on all 
of its catcher vessels.
    The Maine DMR strongly urged NMFS not to exempt mid-water trawl 
gear from Amendment 7 without first determining that this gear cannot 
be fished to take significant quantities of groundfish. It added that 
it had enough anecdotal evidence to suggest that skilled skippers with 
sophisticated net-monitoring technology can fish these nets very close 
to the bottom. It reiterated that its concern is not that mid-water 
trawls can be fished very cleanly but that they may have the potential 
to direct on regulated species.
    Response: Amendment 7 does not specifically exempt mid-water trawl 
gear from the GOM area closures, but allows this gear to be exempted in 
the future. Even if mid-water trawlers were allowed in the closed 
areas, they would not be allowed to possess any regulated species, 
therefore they would have no incentive to direct on regulated species.

6. Comments on Minimum Mesh and Fish Sizes

    Comment 15: A commenter stated that minimum fish sizes are 
responsible for the collapse of the New England stocks of cod, haddock 
and other species of groundfish. He added that prior to minimum size 
regulations, quotas and trip limits worked quite well and all that was 
needed to maintain the stocks was 5\1/2\-inch (13.97-cm) square mesh 
and no minimum sizes.
    Response: Many members of the industry and the public favor minimum 
sizes because allowing fish to grow to a particular size prior to 
harvest can increase yields and enhance spawning. The need for fishing 
mortality reductions is paramount, however, and minimum size limits do 
not necessarily translate into such reductions. Possession limits and 
quotas were considered during the development of Amendment 7 and were 
put forth in the public hearing document under Alternative 4. Public 
response during the hearing phase was opposed to the use of quotas and 
trip limits.
    Comment 16: The Maine DMR stated that Amendment 7 does not address 
increased mesh and fish sizes, and suggests that these options should 
be integrated more fully into the plan, including new conservation 
engineering. It said that NMFS' concern about the lack of selectivity 
studies for mesh larger than regulation size (6 inches or 15.24 cm) may 
be somewhat allayed by Canadian studies showing an approximately linear 
relationship between mesh and fish sizes. It added that it is 
reasonable to assume that this relationship holds for the slightly 
larger meshes at issue here (7-inch (17.8-cm) gillnets and 8-inch 
(20.3-cm) codends).
    Another commenter stated that if 7-inch (17.8-cm) square mesh were 
used exclusively for regulated species, there would be no need for 
diamond mesh and possibly no need for a minimum fish size, resulting in 
no discards.
    A third commenter stated his concern that the provision pertaining 
to adjustments of minimum fish size, originally contained in Amendment 
5, has never been adopted despite ``reports of high flatfish discard 
rates in

[[Page 27716]]

management areas where use of square mesh is mandatory.''
    Response: Increased mesh sizes and increased fish sizes were 
addressed and discussed as an option in the draft public hearing 
document but were not adopted by the Council. Amendment 7 continues the 
established minimum fish sizes, except for some increased fish sizes 
for recreational and charter/party vessels not fishing under a DAS. 
Increased mesh and fish sizes can be accomplished under this plan 
through framework action. The use of mesh size as the sole measure to 
control fishing mortality is problematic for a variety of reasons. One 
reason is the wasteful and unlawful practice of using small mesh liners 
or other devices to circumvent conservation regulations. Another is the 
likelihood that a net will become clogged during long tows, rendering 
the mesh increase ineffective. Nevertheless, 7-inch (17.8-cm) mesh 
would contribute toward conservation and Amendment 7 includes 
incentives to use larger mesh.
    Use of square mesh is required in juvenile protection areas where 
concentrations of small cod and haddock are usually found. Square mesh 
is designed to allow round-shaped fish to escape but it is not as 
effective an escapement mechanism for flatfish. Several research 
experiments on gear conservation methods (some financed by the 
Saltonstall-Kennedy Grant program administered by NMFS) are underway to 
devise a net configuration that will enhance escapement of both 
juvenile flat and roundfish. Meanwhile, the Council has the option of 
increasing minimum fish and mesh sizes through framework actions, and 
may elect to do so in the future.

7. Comments on the TACs

    Comment 17: An association stated that TACs should differentiate 
between hook fisheries and other commercial fisheries, and that one TAC 
should be established for the longline and jig fishery and another TAC 
should be established for the other commercial groundfish fisheries.
    Response: The public hearing document did consider allocating DAS 
by gear group. Note that DAS can be considered an extension of quotas, 
by gear. This alternative was rejected by the Council; however, it may 
be reconsidered at a later time.
    Comment 18: Senator Bob Smith (NH) stated that TAC levels have been 
set unrealistically low. He and other commenters argued that such low 
levels provide larger vessels with the opportunity to consume the TAC 
prior to the small-vessel fleet having an opportunity to use their DAS.
    Senators Olympia J. Snowe (ME) and William S. Cohen (ME) stated 
their concern about equity for smaller vessels and added their concern 
that Amendment 7 goes too far, too fast.
    An association stated that the only way a target TAC could 
alleviate a ``derby-style'' fishery and give the same opportunity to 
all size class vessels throughout the year would be to allow fishing to 
continue after the target is reached. The association asked how this 
achieves conservation?
    A commenter stated that the proposal of allowing extra days for 
using larger mesh while the majority uses regulated mesh makes no sense 
when a TAC is in place. He added that the vessels selecting this large 
mesh alternative in all likelihood will never get to use extra days 
assigned them.
    Another commenter stated that large vessels would have access to 
three different TACS under Amendment 7 while most of the New Hampshire 
small-vessel fleet would have access to only the GOM TAC.
    Response: TAC levels were established based on the Council's 
Amendment 7 objective to reduce fishing mortality to F<INF>0.1, which 
translated to the established TACs. Additionally, Amendment 7 
establishes a target TAC system rather than one with absolute TACs. 
Should a target TAC be exceeded, the Council will respond by adjusting 
the management measures in the following fishing year to keep catches 
below the target. Fishers should understand that should the TACs be 
reached during the fishing year, the fishery will not necessarily 
close, but rather, adjustments to the measures will be made for the 
following fishing year taking into account the impact of the 
adjustments on different sectors of the industry. ``Target'' TACs 
rather than an absolute TAC were adopted in part to provide equity and 
fairness to the different types of participants in the fishery. It 
allows the Council to take into account impacts of adjustment measures 
on different sectors of the industry. The Council will adjust the 
target TAC (upward or downward) as stock size changes are observed and 
will adjust the management measures as needed to keep catches below the 
target. This should alleviate a ``derby-style'' fishery and give the 
same opportunity to all size class vessels throughout the year. Also, 
the small-vessel fleet is not restricted by Amendment 7 to fishing in 
any one area but may move vessels to areas where different TACs apply.
     Comment 19: An environmental organization stated that the F 
<SUP>0.1 target and resulting 1996 TAC for GB haddock are too high for 
the rebuilding needs of the stock and should be reduced. It said that 
at this fishing rate, the probability of GB haddock reaching the 
spawning stock threshold within 10 years is calculated to be only 22 
percent. It added that the 1,000-lb (454-kg) trip limit for haddock, 
contained in Sec. 651.27(a) of the proposed rule, is more restrictive 
because it is not expected to result in landings as high as the 
specified TAC for this stock. Thus, a discrepancy exists between the 
1996 TAC for this stock and the management measures, as well as between 
the 1996 TAC and the rebuilding goal. It urged NMFS to correct this 
discrepancy by determining a fishing mortality rate for GB haddock that 
is likely to achieve the spawning stock threshold within ten years, and 
then to respecify the 1996 TAC for this stock. It further stated that 
if this is not done, the 1996 TAC will be used to argue for less 
restrictive management measures that will not achieve the rebuilding 
goal of Amendment 7 for this stock. It opined that future TACs will be 
set too high if the F target for this stock is not reduced.
    Another environmental organization opposed the increase in trip 
limits for haddock from 500 lb (226.8 kg) to 1,000 lb (453.6 kg). It 
added that the GB haddock fishing mortality target and target TAC are 
set significantly too high and that a specific (and lower) fishing 
mortality target and target TAC should be set for GOM haddock. It 
reasoned that a higher trip limit simply increases the incentive to 
continue fishing when and where haddock bycatch occurs and at some 
level creates an incentive to fish specifically to target haddock to 
catch the trip limit.
    The organizations made these specific points:
    (a) The F<INF>0.1 fishing mortality target and the resulting 2,800 
mt 1996 target TAC for GB haddock are unacceptably high. Moreover, 
these targets result in only a 22 percent probability of rebuilding to 
the 20-percent SSB level within 10 years (NEFMC, 1995, Draft Proposals 
for Amendment 7 to the Northeast Multispecies Plan, p.12). The answer 
to the Council's perceived ``problem'' that the haddock trip limit may 
be too low to allow the fleet to catch the entire GB haddock target TAC 
is to reduce the GB haddock fishing mortality target and target TAC to 
much lower levels that would allow at least a 50 percent probability of 
rebuilding of this stock to the 20 percent SSB levels within a minimum 
of ten years.
    (b) Given the extremely poor condition of the GOM haddock stock, a 
specific and very low fishing mortality target and initial target TAC 
should be

[[Page 27717]]

set for this stock that allows a similar rebuilding timetable and 
probability. The 21st SAW Advisory Report on Stock Status concluded 
that GOM haddock biomass declined to nearly undetectable levels over 
the last two or three decades (p.28). Under this circumstance, it is 
inappropriate to manage GOM haddock with other regulated groundfish 
under an aggregate fishing mortality target of F<INF>0.1 and a single 
aggregate target TAC of 25,500 mt in 1996.
    Response: These issues were addressed at the April, 1996 meeting of 
the New England Fishery Management Council by both the Council and the 
Regional Director. The 1996 TAC for this stock is a maximum, not a 
quota to be achieved, and NMFS feels that coupled with other haddock 
conservation measures, the haddock trip limit and TAC are not 
inconsistent. Under the annual frameworking provision, NMFS and the 
Council will reconsider whether various measures related to the haddock 
fishery are sufficient to meet the objectives of Amendment 7.
    NMFS is advocating very conservative management strategies for this 
stock to promote prospects for stock rebuilding, i.e., to restore SSB 
to certain levels. The haddock trip limit was established as a 
disincentive to target this species on a trip or tow. NMFS believes 
that an increase from 500 lb (226.8 kg) to 1,000 lb (453.6 kg) is not 
effectively an increase, considering that the former measurement by 
totes has been eliminated. That volumetric measure, in practice, 
allowed vessels to land more than the 500-lb haddock trip limit because 
volumetric equivalent measures proved to be too generous. Any 
additional increase beyond 1,000 lb (453.6 kg) in the haddock trip 
limit would have to be accompanied by compensatory measures. A trip 
limit will remain in place unless and until alternative restrictions 
that achieve the same result are developed and implemented.
    Comment 20: An environmental organization stated that the aggregate 
TAC for the remaining regulated species (other than cod, haddock, and 
yellowtail flounder) as specified in the proposed rule is set too high 
to prevent overfishing of at least some of the other regulated species. 
It said that the aggregate TAC was set ``at levels corresponding to 
recent fishing mortality rates to ensure that effort is not redirected 
to these stocks.'' It argued that the report of the 21st SAW indicates 
that pollock, GB winter flounder, and both stocks of windowpane 
flounder are currently at or near record low levels of abundance and 
biomass, while redfish have continued to fail to rebuild. It said that 
this indicates that recent fishing mortality rates have been too high 
on at least these four additional species. Therefore, continued fishing 
at recent rates will fail to prevent overfishing and to allow 
overfished stocks to rebuild. At a minimum, it argued, the aggregate 
TAC for the remaining regulated species needs to be recalculated to 
consider the conservation needs of these other species.
    It further questioned the advisability of including overfished 
species in an aggregate TAC.
    Response: NMFS has been and remains concerned about the 
conservation of each stock for a given species within this species 
complex but Amendment 7 addresses the species rebuilding needs of CHY 
and deals with the remaining multispecies as a stock complex, in the 
aggregate. The national standards require that overfishing definitions 
have to be addressed for each species of the multispecies complex, so 
that the Council should reconsider the issue annually. It is possible 
that additional measures will be required on a species by species 
basis, after further analyses later (e.g., analysis of data from one or 
two fishing years after implementation of Amendment 7 begins). The MMC 
will be charged with the responsibility for addressing this issue and 
for making appropriate management recommendations to the Council.
    Comment 21: An environmental organization stated that the final 
rule should establish in advance the specific improvements in 
management programs that would be implemented if target TACs are 
exceeded by 10 percent or more.
    Response: Any specific improvements in management programs to be 
made if target TACs are exceeded would be tailored to the situation 
requiring such actions. Because of the combination of factors that 
would need to be considered, it would be difficult to establish a fixed 
action in advance. Any future action should be subject to comment from 
the public at the time it is under consideration.

8. Comments on the DAS Program

    Comment 22: An association stated that additional DAS should be 
offered as an inducement to vessels converting to hook fishing.
    Response: Increases for DAS for individual gear types were 
considered in the public hearing document, but rejected by the Council. 
The Council and NMFS recognized the possible benefits of hook fishing 
by allowing for a permit in the new, hook-only limited-access category. 
The commenter's option was not specifically addressed by the Council 
but could be considered by the Council as a framework adjustment 
measure.
    Comment 23: In a joint correspondence two associations stated that 
Amendment 7 incentives that offer additional DAS for use of larger mesh 
are not equal across gear type. They added that fishing effort 
restriction must not favor one gear type over another; otherwise 
anticipated conservation benefits could be negated by gear conversion.
    Response: The Council recently clarified that the proposed measure 
to increase fishing time (DAS) for the Large Mesh Individual DAS option 
would apply to all vessels using large mesh, whether they are trawl 
vessels or gillnet vessels. This resubmitted measure of Amendment 7, 
was described in a notice of proposed rulemaking published in the 
Federal Register on April 18, 1996 (61 FR 16892), and is designed to 
promote conservation by providing an equitably applied incentive to use 
nets constructed of mesh that are larger than the minimum size. NMFS 
approved the resubmitted measure on behalf of the Secretary on May 17, 
1996.
    Comment 24: A commenter stated that Amendment 7 does away with the 
``layover provision,'' which would have done some good for the 
resource. He added that it was eliminated to placate the large boat 
sector. He stated that, without this provision, large boats could 
engage in back-to-back trips to the detriment of the resource.
    Response: Both the layover day provision and the fleet blocks of 
time out of the fishery have been eliminated under the preferred 
alternative. Given the 50 percent reduction in DAS allocation, the 
possibility of back-to-back trips undermining mortality reduction goals 
does not appear to be significant. The layover day provision would not 
be effective and would be difficult to enforce under the reduced DAS 
allocations implemented by this rule and were removed. In addition, 
removal of this provision is intended to encourage some vessels to move 
out of groundfishing for significant portions of the year.
    Comment 25: A commenter stated that vessels in the Fleet DAS permit 
category are at a disadvantage when compared with vessels in the 
individual DAS category, because it gives them less access to the 
resource and most of them are smaller, more weather dependent boats.

[[Page 27718]]

    Response: These categories were established by Amendment 5 after a 
lengthy public hearing process and are not changed by this rule. The 
principle behind the individual DAS program is to provide those vessels 
that primarily direct their operations on multispecies a baseline 
allocation of DAS that reflects actual fishing. All other vessels were 
allocated a general average of the fleet (Fleet DAS). The Fleet DAS 
program was established, in part, as a default type allocation for 
vessels that could not prove their actual DAS, vessels that did not 
wish to purchase vessel monitoring devices and other vessels that may 
not have had sufficient DAS in the groundfish fishery. Vessels that 
could demonstrate that they fished more than the fleet average could 
apply for an Individual DAS permit. Individual DAS vessels received a 
higher allocation of DAS because, historically, they fished for DAS 
more than the average of the fleet. In any event, smaller vessels that 
traditionally engage in day trips will essentially be allowed twice the 
number of allocated DAS because their trips will be allocated on an 
hourly basis. That is, a day trip that lasts only 12 hours will only 
use up one-half of a DAS.
    Comment 26: A commenter stated that the Council acknowledged that 
the method used to calculate the DAS for the gillnet sector of the 
fleet was wrong. He stated that the Council assumed it would be 
corrected by a framework adjustment. He stated that the framework 
adjustment process was not intended to be used to correct deficiencies 
recognized prior to implementation. He suggested that Amendment 7 
should be disapproved on this basis alone.
    Response: One of the disapproved measures of the amendment was the 
measure that counts gillnet DAS as time when gear is in the water, as 
referenced by the commenter. NMFS' Office of Law Enforcement also cited 
difficulties in monitoring gear in the water. Moreover, the Council 
submitted a comment on the proposed rule stating that it is seeking 
alternatives to the gillnet DAS structure through framework action. 
Until such time, the DAS counting method will be the same as that for 
other DAS categories, i.e., the time spent away from port.
    Comment 27: A commenter stated that management's use of DAS as 
effort reduction raises questions of equity and fairness. In support of 
his statement, he asked the following questions: (1) Does a vessel's 
past history of DAS show whether it was away from the dock for 10 or 24 
hours? (2) Can a day boat that fished 300 10- or 12-hour days in the 
years that are being credited with DAS apply those days to the current 
DAS regulations? (3) Can this vessel now take his allotted DAS and 
apply them to fishing offshore with 24-hour days? (4) Can a day boat 
that historically fished 120 12-hour days now be entitled to 278 days 
in year 1 and 176 days in year 2, if he makes all 12-hour trips? (5) 
Are these 12-hour day boats benefiting with twice the days as boats 
that fish full days? (6) Should a gillnet fleet from Cape Cod be 
penalized because the practice of ``soaking'' nets is not acceptable to 
the majority of the fishing fleet?
    Response: To question (1) Yes, for vessel trips where captains were 
interviewed by a port agent, the hours away from the dock are recorded, 
however, other records are usually needed to augment NMFS' data because 
submission of vessel trip reports was not mandatory and not every trip 
could be interviewed; (2) yes, if a vessel can show 300 DAS, it can be 
allocated, as a baseline, that many DAS; (3) yes, used DAS are counted 
in hourly increments; (4) the vessel would be subject to a 120 DAS 
baseline with a 10-percent reduction for 1994 and 1995, an additional 
15 percent reduction for 1996 and a final reduction of another 15 
percent for 1997; (5) DAS used is computed in hours, therefore, any 
vessel using less than 24 hours in a DAS is on record for that portion 
of the day used in hours away from the dock; (6) DAS for gillnetters is 
based on time away from the dock, which should reflect their actual 
fishing time.
    Notwithstanding the possibility that vessels that fish only partial 
days may be able to fish more ``days'' than their DAS allocation 
appears to allow, NMFS has determined that the overall effort reduction 
measures are adequate in achieving mortality reduction goals. If it 
appears that such measures are not effective they can be adjusted 
through framework measures.

9. Comments on the Socio-economic Analysis

    Comment 28: In a joint correspondence two associations stated that 
the socio-economic statement for Amendment 7 states that class 3 and 4 
vessels will not be financially viable in year 2. They further stated 
that other fleet sectors will be viable, because the regulations have 
been skewed to make it so. They added that the Magnuson Act, 
specifically, National Standard 4, clearly states that all user groups 
are to be treated equally. They further added that the socio-economic 
statement was drawn up several weeks prior to the adoption of major 
segments of Amendment 7 and that its accuracy was questioned on 
numerous occasions. They stated that the Regional Director had also 
indicated publicly his concern about it being a solid appraisal of the 
future.
    Response: The requirements of the Magnuson Act require that 
fisheries regulations do not discriminate against residents of 
different states and that any allocation of fishing privileges to 
fishers be fair and equitable to all such fishers, that the allocation 
be calculated to promote conservation and that no particular entity 
acquire an excessive share of such privileges. The Council and NMFS 
considered these factors in developing Amendment 7 and concluded that 
the measures adopted were the best suited to provide fair and equitable 
fishing opportunities to all sectors of the fishery. As to the accuracy 
of the socio-economic impact statement (SIA), there were some changes 
to specific details of various Amendment 7 regulations after the broad-
scale analyses such as the cost-benefit analysis, the sector analysis, 
and the break-even analysis in the SIA were completed. However, the 
sector analysis and the break-even analysis in the SIA are not affected 
by these changes because the analyses are based on broad effort 
reduction goals, (i.e., 50-percent and 80-percent reductions in fishing 
effort). The cost-benefit analysis is also based on total levels of 
effort reduction (independent of how the reductions are achieved) and 
on projected landings. These broad-based analyses did not change in the 
final weeks, nor did the general characterizations of the fleet change, 
such as are found in the ``Human Environment'' Chapter.
    If the comment alludes to specific discussions of particular 
measures, such as some of the comments in the SIA, all changes up to 
and including those made at the January 25-26, 1996 Council meeting, 
which included the vote to send Amendment 7 to the Secretary, were 
analyzed. Analyses to minor changes to measures were encompassed in the 
broad scale analyses.
    Any and all limitations to the data and analyses are discussed in 
the FSEIS. However, NMFS stands behind the stated quality of the data 
used and academic rigor of the analyses performed. It is true that the 
analyses may be insufficient to pinpoint precise impacts, especially 
for a given individual vessel. The test of the EIS specifically states 
this. The analyses do, however, give an accurate general picture of the 
range of likely impacts.
    Comment 29: A commenter stated that the only way to rebuild the 
stocks is to do away with big fleet boats 60 ft and

[[Page 27719]]

greater in length, which caused the stock damage in the first place.
    Sen. Judd Gregg (NH) added his concern that the amendment 
inequitably treats the interests of the small-vessel fleet relative to 
the large-vessel fleet or corporate trawler fleet operating in the GOM. 
He stated that without appropriate modification, Amendment 7 threatens 
the economic viability of the New England small-vessel fleet and argued 
that it has a relatively small interaction with the groundfish 
population. He further stated that the FMP failed to appropriately 
focus management measures on the industry segment responsible for 
pressuring the resource.
    Response: The amendment is intended to be constructive in the long 
term, that is, to rebuild the resource by equitably applying reductions 
in fishing effort and to allow vessel owners to individually maximize 
their abilities within a fair set of constraints. Individually, large 
vessels do tend to have greater fishing power and consequently can 
exert more fishing pressure on the stocks than do smaller vessels. 
Smaller vessels in the 31 to 45 ft (9.5 m to 13.7 m) class 
(approximately 46 percent of all limited access permits) can 
cumulatively exert a significant amount of fishing effort as well as 
individual vessels 60 ft and greater in length. Because of the large 
reductions in effort needed to rebuild severely depleted groundfish 
stocks, all vessels that are greater than 30 ft (9.1 m) in length, and 
all other vessels formerly exempted from the DAS effort reduction 
program (Hook-Gear and Gillnet vessels), are brought under the DAS 
program. Moreover, given the variability and types of vessels and gear 
used in this fishery, it would not be possible to design management 
measures with precisely equal impact on all participants. In approving 
Amendment 7, NMFS has concluded that the overall conservation benefit 
of the measures outweigh the hardship on individual vessels.
    Comment 30: In a joint correspondence two associations stated that 
the socio-economic analysis of Amendment 7 regulations does not include 
any additional monitoring and enforcement costs, yet the document 
suggests that these are likely to exceed the projected benefits. The 
analysis must factor in the cost of adding all the previously exempted 
vessels to the DAS call-in system, the cost of the vessel tracking 
system (VTS) to boats and to the Government for the monitoring hardware 
and software, and the United States Coast Guard's (USCG) costs for 
monitoring and enforcing DAS, closed areas, gear restrictions and trip 
limits. They added that the Federal Government has committed $25 
million to the Fishing Capacity Reduction Program. This is either a 
pure cost, or the cost-benefit must be analyzed. The loss of revenue 
from monkfish landings, constrained by management measures to reduce 
landings of regulated species, is not included. They further stated 
that market loss due to foreign substitutes, and the recent policy 
changes in the bid process for military fish supply, are not included 
and market rebuilding costs are not estimated.
    The associations stated their understanding that these costs, and 
others yet to be anticipated, are difficult to predict and quantify but 
added that effort must be made to do so, as these costs have the 
potential of negating any estimated benefits.
    Response: The FSEIS submitted by the Council as part of Amendment 7 
contains a discussion of other costs (Appendix X, E.7.2.3.8). The FEIS 
document states that many other costs of the nature referred to by the 
commenter were not considered because they are only marginally 
different from the status quo in Amendment 5 or because the information 
is unavailable, as the commenter concedes. For instance, the marginal 
cost of adding vessels to the DAS call-in system is expected to be 
insignificant because the system is in place and can easily be upgraded 
to receive an increased volume of phone calls, if necessary.
    Additional costs associated with installation of VTS systems on 
individuals vessels were not considered since Amendment 7 does not 
change which vessel categories would be required to install a VTS. 
Thus, VTS costs to vessels are not affected by Amendment 7 relative to 
the staus quo (SQ).
    The USCG's estimate of potential costs of Amendment 7 assumes that 
much of the enforcement effort would be conducted at-sea. Because of 
the comparatively high-cost of at-sea enforcement, NMFS believes that 
enforcement efforts will necessarily be land-based. During 
implementation of Amendment 7, NMFS encourages increases in sea-based 
support to improve the overall effectiveness of programs implemented 
under Amendment 5, e.g., DAS compliance, gear restrictions, etc. 
However, although such costs may occur during Amendment 7, they 
actually represent programmatic improvements that could also be 
expected to be made in the out years of the status quo amendment.
    Appropriate analyses of the $25 million Fishing Capacity Reduction 
Program will be conducted once it has been approved.
    Losses from landings of associated species as a result of 
conservation actions directed at the regulated groundfish species are 
acknowledged in the plan. The benefits derived from foregoing monkfish 
landings in order to conserve groundfish stocks are deemed positive. 
There is no way to distinguish whether trips in which monkfish is 
landed along with regulated groundfish constitute a monkfish trip or a 
groundfish trip with monkfish bycatch. Fisheries where it is shown that 
bycatch (in weight) of regulated species is less than 5 percent are 
permitted to operate under Amendment 7. This is not the case for any 
monkfish fishery. A Monkfish plan or amendment is under development, 
and it is generally acknowledged that monkfish stocks are 
overexploited.
    Losses in market as a result of reduced landings under Amendment 7 
are recognized. NMFS undertook a study of the impacts of landings 
reductions under Amendment 5 on intermediate markets (Georgianna, 
Dirlam and Townsend), results of which were commented on in the FSEIS. 
The costs of the steeper reduction in landings as a result of the more 
rapid effort reduction will be higher still. The Council took the 
qualitative step to modify the reduction schedule from 1 to 2 years 
with exactly these impacts in mind. This will provide time for 
diversification into other marine products that would result from 
shifted effort. Similarly, the Council chose among the alternatives it 
considered, the effort reduction process (DAS reduction) least 
disruptive to shore-side activities. Again, the reduction schedules 
discussed are relevant to groundfish only.
    Changes in procurement contracting is nationwide and encourages 
competition within the United States among fish producers. The 
intention is to achieve greater value for dollar of procurement. Our 
analyses suggests that prices to groundfish landings will not be 
significantly impacted by the removal of a price floor in the early 
years of the plan. In later years, as occasions of congested landings 
occur, the removal of this support might lower that day's prices 
somewhat from what they might have been. However, this procedural 
change would have been in effect under either Amendment 7 or its 
default, Amendment 5 as modified.
    Comment 31: In a joint correspondence, two associations stated that 
the DAS reduction objectives are based on the hypothesis that a 50-
percent reduction in DAS will achieve

[[Page 27720]]

a 50-percent reduction in fishing mortality. They argued that a 50-
percent reduction in DAS is more likely to achieve a much higher 
reduction in mortality as large number of vessels exit the fishery 
because of insufficient DAS to remain economically viable.
    Response: That economic viability will be a problem for the average 
trawler as the DAS are reduced was acknowledged in the plan and 
particularly in the break-even analysis, which analysis dealt with 
groundfish days only. Lack of data on individual vessel costs and 
effort precluded prediction of the number that would find conditions 
intolerable. To compensate, a yearly adjustment mechanism was 
established to attempt to reconcile the DAS reductions with the desired 
fishing mortality trajectory. Where vessels exit the fishery and do not 
exercise their DAS allocation, the effect may result in an easing of 
the reduction schedule for the remaining vessels. This would not occur 
without a lag of about 1 year. Much of this uneven distribution of 
impacts might be alleviated by programs which permit transfers of DAS, 
e.g., through consolidation. These were not included in Amendment 7 but 
may be considered in the future.
    Comment 32: A commenter, on behalf of nine offshore lobster 
vessels, stated that Amendment 7 should not be implemented until the 
impacts of redirection of trawler effort on the depletion of the 
lobster resource and on gear conflicts are adequately addressed. He 
stated that section E.7.1.1.2, Impact on other fisheries, on p. 204 of 
the FSEIS is totally inadequate and ignores substantial Council comment 
and deliberation on the issue of impact on other fisheries, and also 
ignores the experienced re-directed effort that is evident from 
Amendment 5 and from similar restrictions on fishing days in the sea 
scallop FMP.
    The commentor also stated that it is completely disingenuous for 
the EIS to say that ``there is no practical way to predict where the 
effort from groundfishing will go and what the impact of the proposed 
action on other fisheries will be.'' He argued that NMFS has a great 
deal of data on the trends in fishing effort, the productivity of 
various fisheries, and the impacts evident from the trends in shifting 
fishing effort. He cites as sources NMFS information on the value of 
fishing gear lost to conflicts with trawlers over the past few years, 
the analysis of the shift in effort to the monkfish fishery, the 
Fishing Industry Grant program and USCG data.
    An attorney representing a group of offshore lobstermen mirrored 
the above concerns and added that the Council stated, in support of the 
emergency action for gear conflict in southern New England, that the 
gear conflicts were related to additional regulations on the groundfish 
industry which forced vessels to fish in areas for nontraditional 
species. Another commentor finds it inconsistent that the Council can 
make this statement in support of an emergency action request and then, 
in support of Amendment 7, state that the impact cannot be quantified.
    Response: As stated in the analysis of impacts on other fisheries, 
the degree to which trawlers may redirect fishing effort onto the 
lobster resource cannot be estimated at this time. NMFS believes that 
such redirection would be mitigated by the exemption program in the GB/
GOM area, which requires all fisheries outside of the DAS program to 
meet the 5-percent bycatch limitation for regulated species.
    Comment 33: A commenter stated that a NOAA study of critical socio-
cultural issues is presently underway for the New England fishing 
industry. The commenter added that the final report from this study of 
the Northeast fishery is due by June 15, 1996, and that such analysis 
of the fishery is required by the Magnuson Act and no plan amendment 
should be implemented prior to this report.
    Response: The report mentioned by the commenter contains baseline 
information about the fishing industry that could be used for future 
framework actions or FMP amendments. It was not ready in time for the 
Council to consider for Amendment 7. Amendment 7 included analyses 
based on the best information available to date.
    Comment 34: An association stated that under E.O. 12866 the Agency 
must submit to the Office of Information and Regulatory Affairs (OIRA), 
with respect to any significant action, the text of proposed regulatory 
action, an assessment of the costs and benefits of the action, an 
assessment of alternatives, and an analysis as to the reasons for 
selecting the preferred alternative (PA). It added that the Agency must 
provide the public the information provided to OIRA, and the changes 
between the draft submitted to OIRA and the subsequent action. It 
stated that it is not clear what documents were submitted to OIRA and 
what analysis was reviewed.
    Response: NMFS complied with the requirements of E.O. 12866. All 
public hearing documents, as well as the scientific, economic, and 
social impact analyses, and comments to public comments on the DSEIS, 
were provided to OIRA along with a copy of the proposed rule and its 
preamble. No changes were made to the proposed rule at the suggestion 
or recommendation of OIRA.
    Comment 35: An association stated that NMFS failed to consider a 
wide range of costs associated with the PA.
    Response: The economic analysis considered all relevant currently 
available data. The availability of information on the full range of 
economic activities associated with commercial fishing is quite 
limited. Economic data on many shoreside activities such as offloading, 
processing, and sales of inputs to commercial fishing vessels is simply 
not available. Given this lack of data many of the referenced economic 
factors could not be incorporated into the economic analysis. However, 
had these factors been included, it is not a foregone conclusion that 
they would be economic costs. The benefit-cost analysis must consider 
benefits to the Nation as a whole. This has two ramifications. First, 
losses in one region may be offset by gains in others, leaving National 
income unchanged. This might be the case if vessels and/or crew were to 
leave the Northeast and move to other regions. Second, in over-
capitalized fisheries, reductions in resources that are devoted to 
fishing may be viewed as a net gain from a National perspective. Given 
the lack of adequate economic data, it was not possible to determine 
the extent to which economic dislocations such as crew share losses, 
impacts on suppliers and processors, or the impacts of bankruptcies 
might be considered transfer payments, national economic gains, or net 
losses in National income.
    Comment 36: An association stated that all the biological and 
economic estimates for analyses contained in Amendment 7 occurred 
outside the public's view. It said that it is impossible for experts to 
replicate any of the sets of projections set forth in the supporting 
analysis.
    Response: All of the recruitment simulator results that included 
landings streams were described at several Plan Development Team 
meetings at the Council offices and subsequently at Council Groundfish 
Oversight Committee meetings. Both types of meetings are attended by 
the public. In addition, the public hearing document and an extensive 
draft EIS document were made available to the public months ahead of 
the Council vote to adopt Amendment 7. An explicit description of the 
economic information used in the final EIS was contained in the latter.

[[Page 27721]]

    Comment 37: An organization stated that the IRFA of the impacts of 
Amendment 7 should contain a description of any significant 
alternatives to the proposed rule that accomplish the stated objective 
and that minimizes any significant economic impacts of the proposed 
rule on small business. The organization further stated that the final 
regulatory flexibility analysis (FRFA) should provide a summary of 
issues raised by the public in response to the initial analysis, along 
with a description of each significant alternative to the rule 
consistent with the objective of minimizing economic impact, and a 
statement of why any alternative was rejected.
    An association stated that under the Regulatory Flexibility Act 
(RFA), an agency must assess the impact of new regulations on small 
business. It said that the NMFS has failed to comply with its 
obligations. It argued that the Small Business Administration (SBA) had 
been largely omitted from the process. The intent of the statute is to 
limit regulatory actions having a significant impact on small business. 
It argued that this particular preferred alternative (PA) is 
specifically designed in such a way that trawl vessels will not be 
allocated sufficient DAS to break even during year 2. This extremely 
harsh anticipated result flies in the face of the statutory intent of 
the RFA.
    Response: Amendment 7 contains an IRFA that incorporates supporting 
analyses and portions of the amendment that provide the public with 
information on the effects on small entities of the PA and any other 
alternatives considered by the Council, including those that minimize 
the impacts on small entities. The classification section of the 
proposed rule for Amendment 7 also contains a statement regarding the 
probable effects of the PA on small entities and an initial 
determination under the RFA.
    NMFS transmitted a copy of the Amendment 7 and its initial 
determination that the amendment would have a significant economic 
impact on a substantial number of small entities to the SBA shortly 
after NMFS' receipt of the amendment, following standard procedure for 
all new FMPs and FMP amendments under Secretarial review.
    The preamble to this final rule contains a summary of the comments 
received by NMFS in response to the notices of proposed rulemaking, 
including comments on the IRFA, NMFS' responses to those comments, and 
any changes made to the rule as a result of those comments. The IFRA as 
submitted by the Council, together with the summary of the comments 
received and NMFS' responses thereto, in this preamble, constitutes the 
FRFA. Alternative actions were not taken in response to comments on the 
IRFA. NMFS believes that the responses in this preamble to the public 
comments adequately explain why NMFS did not adopt alternatives having 
less of a significant economic impact on small entities compared to 
those measures in Amendment 7 that NMFS approved.
    NMFS disagrees that the final rule violates the intent of the RFA. 
The intent of the RFA is not to limit regulations having adverse 
economic impacts on small entities, rather the intent is to have the 
agency focus special attention on the impacts its proposed actions 
would have on small entities, to disclose to the public which 
alternatives it considered to lessen adverse impacts, to require the 
agency to consider public comments on impacts and alternatives, and to 
require the agency to state its reasons for not adopting an alternative 
having less of an adverse impact on small entities.
    The Council and Center performed ``break-even'' analyses, apart 
from the benefit-cost analysis, specifically to assess the financial 
viability of small business fishing vessels. Where a quantitative 
assessment was not possible, qualitative comments noting sectoral 
impacts were offered.
    The differential impact of Amendment 7 on trawlers was noted. The 
cost-benefit analysis is designed to analyze net national benefits of 
the action affecting many gears and component fisheries. A single 
sector analysis is inappropriate. NMFS agrees that trawlers will be 
more heavily impacted than hook vessels and possibly gillnetters 
(though this latter is unclear since final gillnet framework measures 
have not been established).
    Without better cost-earnings, labor response and alternative 
employment options data, NMFS is limited in the precision of vessel and 
fleet level economic/financial impact assessments it can make for such 
gear-based allocations. Further, additional data on family structure 
and community social structure would be required for a stronger, more 
comprehensive social impact assessment of such measures.
    Comment 38: An association stated that the NMFS is required, under 
E.O. 12866, to seek the involvement of those who are intended to 
benefit and those who are intended to be burdened by any regulation. It 
added that the Agency must also use consensual mechanisms for 
developing regulations, including negotiated rulemaking.
    Response: The Council process by its nature involves 
representatives of groups that benefit and are burdened by the 
management process, either directly as members of the Council, or 
indirectly as persons with access to the public process at the Council, 
oversight committee and plan team meeting level. Negotiated Rulemaking 
is not required.
    Comment 39: An association stated that the RIR understates the 
impact on the trawl vessels and fails to highlight the speculative 
nature of the benefits of the preferred alternative (PA) in years 9 and 
10.
    Response: NMFS disagrees. The RIR adequately covers economic 
impacts. Estimates of economic benefits in years 9 and 10 are seldom as 
precise in this kind of analysis as are the estimated benefits and 
costs in earlier years.
    Comment 40: An association stated that the PA (Amendment 7) will 
result in the insolvency of an entire sector of the fishing industry in 
the Northeast. It commented that the Agency has selected the 
alternative that causes that result even though the benefits of that 
plan over the status quo (SQ) (Amendment 5) are questionable and even 
though the SQ would achieve the same results with respect to stock 
replenishment over a slightly longer period of time while preserving 
all segments of the fleet.
    Response: The statement does not accurately portray the key 
difference in objectives for Amendment 5 and Amendment 7. The stock 
rebuilding objective for Amendment 5 is to reduce fishing mortality on 
CHY to halt the decline in spawning stock biomass. Rebuilding of 
spawning potential under Amendment 5 is limited to levels that would 
reduce the risk of recruitment failure, but would still leave the 
fishery in an overfished state. By contrast, the objective of Amendment 
7 is to rebuild SSB to levels that would exceed minimum threshold 
levels for the three key species. The differences between the stock 
replenishment scenarios of Amendments 5 and 7 are clearly illustrated 
on pages 195-199 of Amendment 7. In every instance, Amendment 7 results 
in substantially greater levels of SSB as compared to Amendment 5. 
Thus, the contention that Amendments 5 and 7 result in the same level 
of stock replenishment cannot be supported.
    Comment 41: An association attached a study entitled ``Evaluation 
of the Economic Impacts of the Proposed Action (Section E.7.2).'' The 
study, by Dr. Andrew Plantinga and Dr. James Wilson from the University 
of Maine, acknowledged that NMFS' methodological approach to its socio-

[[Page 27722]]

economic analysis is well-accepted within the field of economics and is 
applied in an appropriate manner. It stated that some of the specific 
assumptions employed in NMFS' analysis, however, are unconventional and 
highly questionable. The purpose of the study is to reconsider the 
economic impacts of the proposed action under a more plausible set of 
assumptions.
    Response: (1) Issue--Treatment of Imports. Holding imports constant 
is standard practice in economic analysis of fisheries management, and 
reflects uncertainty over how trading partners will manage their 
resources within the ten-year time horizon. Holding price constant 
ignores dramatic increases in groundfish prices over the next two 
decades. Finally, the constant price analysis offered by the commentors 
still demonstrates a superior result for Amendment 7 compared to 
Amendment 5, in fact, even more so than for an assumption of constant 
imports.
    (2) Issue--Treatment of crew costs. Since labor employed in a 
fishery is a resource that would otherwise be employed in another 
activity, it has a resource cost. Given the lack of data on the 
opportunity cost of this labor, the entire value of crew share is used 
in some analyses as an economic benefit. However, this approach is 
inappropriate in overcapitalized fisheries, which is the case for this 
fishery.
    (3) Issue--Time horizon. A 10-year horizon is standard practice in 
bio-economic analyses of northeast fisheries, reflecting the time 
period necessary for stock recovery. Uncertainty is addressed through 
the simulation model, which is a more rigorous approach than 
arbitrarily dropping two years from the analysis.
    A more detailed discussion in terms of a response to this comment 
is available upon request from the Regional Director.

10. Comments Related to National Standards

    Comment 42: An association commented that Amendment 7 is 
inconsistent with National Standard 1 which requires the NMFS to 
prevent overfishing while achieving an optimum yield from each fishery. 
It added that the varying mesh requirements from fishery to fishery fly 
in the face of National Standard 1. Moreover, NMFS' failure to consider 
the unique factors of different segments of the fleet and different 
fisheries conflicts with the goals of National Standard 1.
    Response: NMFS has determined that the provisions of Amendment 7 
not disapproved are consistent with National Standard 1. Allowing 
different meshes for several small fisheries in the overall 
groundfishery reflects the effort to incorporate unique factors of each 
of these fisheries. Mesh regulations reflect area, gear and species 
concerns. Small mesh fisheries are allowed to operate once bycatch 
effects have been considered. A single mesh applied to all fisheries 
would constrain more opportunities. Benefits to other fisheries are 
foregone in the closed areas included in the plan.
    Comment 43: An association stated that National Standard 4 
prohibits discrimination among the residents of states. It added that 
the regulated species constitute a much lower percentage of overall 
groundfish landings in Maine than in any other of the states impacted 
by the PA. Moreover, the GOM cod stocks have been determined to be 
healthier than GB stocks. NMFS' failure to account for differences in 
local factors results in an exaggerated detriment to the commercial 
fishermen in a region where the problem is less pronounced. The 
association added that this failure also violates National Standard 6, 
which requires NMFS to consider variations in fisheries, resources and 
catches.
    In a joint correspondence, two other associations stated that 
regulations designed to rebuild stocks of CHY will exact a higher 
economic burden for Maine than for other New England states. They 
stated that Maine's industry supports 22,000 fishing and fishing-
dependent jobs. They added that Maine is a rural state with few 
alternative employment opportunities. The associations said that the 
percentage of CHY in the overall groundfish landings of Maine vessels 
is much less than that of other New England states. However, Amendment 
7 fishing restrictions will greatly constrain landings of other 
regulated species, which comprise the largest percentage of Maine's 
overall groundfish landings. They stated that GOM stocks were 
determined to be healthier than GB stocks, yet all fishing vessels, 
regardless of fishing region, must take the same direct effort 
reductions as measured by DAS.
    Response: NMFS recognizes that ports in some states may be affected 
differently than ports in other states. However, National Standard 4 
states that management measures shall not discriminate between 
residents of different states. None of the measures discriminates 
between residents since all are treated similarly, and thus the 
amendment is consistent with National Standard 4. The amendment is also 
consistent with National Standard 6, because the Council and NMFS have 
considered variations in fisheries resources and catches in attempting 
to recognize all sectors of the industry through numerous exemptions 
and special provisions.
    The white hake fishery is of increasing importance to many vessels 
in the GOM. A white hake provision in the amendment allows the Regional 
Director, upon consideration of the exempted bycatch criteria, to allow 
a directed fishery on white hake outside of the DAS program.
    Comment 44: An association stated that National Standard 5 requires 
NMFS to promote efficiency and National Standard 7 requires NMFS to 
minimize costs and avoid unnecessary duplication. It asserted that NMFS 
has failed to consider less drastic steps, that could be taken to 
achieve the same result. It argued that regulations should include 
procedures to relax restrictions quickly. It said that the amendment's 
analysis also fails to consider heightened enforcement costs.
    Response: Amendment 7 is consistent with both of these national 
standards. The Council and NMFS considered alternatives and included 
special provisions designed to minimize to some degree the impact of 
management measures. NMFS notes it is consistent with both standards to 
take actions only ``where practicable.'' Both harvesting and 
enforcement costs were less for the DAS reduction program alternative 
than for several other alternatives under discussion. For the most part 
the systems necessary were adopted under Amendment 5. Other 
alternatives included strict quotas with the likely result of fishing 
derbies, an extensive closed area grid requiring enforcement features 
far beyond the capability of the region's USCG, and complete closure of 
all fisheries taking groundfish.
    The rebuilding trajectory was modified from a single year reduction 
in fishing effort, to 50 percent of recent levels, to a two-year 
reduction schedule. In addition, an annual review process will examine 
the deviation of the actual from desired rebuilding trajectories. 
Adjustments (increases or decrease in fishing effort) in DAS or other 
management measures will occur as they become necessary, upon annual 
review of the target TACs and actual fisheries data for a given year.
    Comment 45: An association stated that Amendment 7 violates 
National Standards 2, 4, 5, and 6 because: It uses poor, untimely and 
incomplete information; it is not fair and equitable to all fisheries; 
it is not reasonably calculated to promote conservation, but rather 
downsizes fishing fleets as they once were; it unfairly puts concerns 
of one fishery over another; it discards in

[[Page 27723]]

favor of expediency and it does not account or allow for variations of 
the fisheries.
    Response: NMFS disagrees. As discussed above, the provisions of 
Amendment 7 that were not disapproved comply with the national 
standards and other applicable laws discussed in response to other 
comments. As discussed above, NMFS has determined that the measures are 
based on the best available scientific information (National Standard 
2), do not discriminate between residents of different states (National 
Standard 4), and are fair and equitable and reasonably calculated to 
promote conservation. NMFS notes that National Standard 5 requires 
fishery management plans to promote efficiency in utilization of 
resources ``where practicable,'' as discussed elsewhere in response to 
comments; in a fishery as severely overfished as Northeast multispecies 
the ``where practicable'' caveat is a constraining factor. NMFS has 
approved measures that include several exemption programs and 
management measures tailored to account for contingencies (geographic, 
seasonal) as specified in National Standard 6.

11. Comments on the Procedural Aspects of Amendment 7

    Comment 46: In a joint correspondence, two associations stated that 
it is the responsibility of the regional fishery management councils to 
see that the intent of the Magnuson Act is carried out so all parties 
concerned are treated fairly and equally, that public input be allowed 
and comments be seriously considered in making major decisions. The 
associations added that such has not been the case in the development 
of Amendment 7 by the Council.
    Response: The industry has been actively involved in the plan 
process, and their viewpoints were solicited and taken quite seriously. 
In addition to its regularly scheduled meetings, the Council held a 
large number of committee meetings during the development of the 
alternatives proposed in the public hearings. Notice of these meetings 
was sent to everyone who indicated an interest in receiving such 
notice. Furthermore, these meetings, as well as public hearings, were 
open to the public and provided an opportunity for representatives from 
all the different sectors of the fishery to be heard. As the Council 
developed Amendment 7, the severity of measures under consideration was 
widely publicized in trade and general publications. The Regional 
Director personally met repeatedly with fishing industry groups, 
including those associations whose comment this responds to, both 
during Council meetings and in their home ports. Furthermore, most of 
the proposals made in the associations' position paper of September 19, 
1995, were incorporated in some form in Amendment 7. These include the 
removal of layover day provisions, the elimination of exemptions for 
vessels under 45 ft (13.7 m), and the closure of areas to maximize 
recruitment, as well as the continued use of DAS as a primary 
management tool.
    Comment 47: In a joint correspondence, two associations stated that 
the fisheries management process failed its Magnuson Act obligation to 
involve the Groundfish Industry Advisory Committee in the development 
of Amendment 7.
    Response: Members of the Groundfish Industry Advisory Committee 
were notified of each scheduled Groundfish Committee meeting and were 
well represented and actively participated at most of them. 
Furthermore, from representative membership on the Council, through the 
scoping process and both formal and informal opportunities to be heard, 
industry representatives were involved in the development of Amendment 
7 from its inception through implementation.
    Comment 48: A commenter stated that none of the alternatives to 
Amendment 7 presented by New Hampshire fishers at public hearings (such 
as mobile gear night closures and gillnet restrictions) was considered 
by the Council.
    Response: In fact, such issues were considered by the Council. The 
Council is continuing its consideration of additional gillnet 
restrictions for implementation by the Amendment 7 framework adjustment 
process. The Council continues to receive testimony regarding night 
closures for mobile gear, but has not developed a proposal to implement 
this measure.
    Comment 49: An environmental association urged NMFS to waive the 
Administrative Procedure Act's (APA's) 30-day delay in effective date 
and implement Amendment 7's conservation measures immediately upon 
publication of the rule.
    Response: The APA allows the 30-day delay in effective date 
requirement to be waived if there is good cause to do so. While the 
commenter seeks such a waiver in order to provide immediate 
conservation benefits, NMFS believes that it would not be reasonable to 
require compliance with management measures of this complexity on an 
immediate basis. The 30-day delay in effectiveness will provide NMFS an 
opportunity to inform the public about the new requirements. It will 
also provide the industry with the time required to make the necessary 
adjustments to fishing activities and gear.

12. Comments on Enforcement of the Amendment

    Comment 50: The Council submitted comments addressing 
enforceability issues associated with the proposed regulations. Their 
comments are as follows:
    They noted that there was an error in Sec. 651.22(g) with respect 
to the requirement to take 20 days out of the multispecies fishery 
during the spawning season. Their suggested revision is incorporated.
    They identified a mesh size measuring procedure to be used for 
gillnets and suggested that implementation of this procedure be delayed 
until October 1996. These recommendations were adopted.
    They requested a revision of the definition for ``Port'' to clarify 
when a vessel must call under the call-in requirements. This change is 
incorporated.
    NMFS notes that it has made some changes in the final rule in 
response to concerns raised by the Council (see changes from the 
proposed to final rule).

13. Miscellaneous Comments

    Comment 51: The Maine DMR stated, as regards NMFS concerns 
expressed in the preamble to the proposed rule about the availability 
of open-access handgear-only permits to party/charter vessels and the 
resulting administrative and monitoring burden about what set of rules 
party/charter boats are operating under, that this burden could be 
reduced by requiring that such vessels only call in upon embarking on a 
commercial groundfish trip. At other times, party/charter vessels would 
be presumed to be fishing under recreational rules.
    Response: The Council commented that the call-in requirement for 
charter/party vessels would not enhance enforcement and should be 
disapproved. NMFS agrees and the measure has been disapproved.
    Comment 52: An environmental organization stated that the phrase, 
``FMP goals and objectives,'' is used in some places in Sec. 651.40(a) 
while in other places the phrase, ``FMP objective,'' is used. It 
believes that the former phrase should be used throughout the section 
both because it reflects the Council's intention and because it is 
important to assure that

[[Page 27724]]

future management decisions will be guided by the need to reach 
specified spawning stock thresholds as well as by the fishing mortality 
rates that the Council hopes will achieve those thresholds.
    Response: NMFS agrees and the commenter's suggestion has been 
adopted.
    Comment 53: The Maine DMR stated that DAS program results in 
compensations by fishermen to maintain their revenues in the face of 
reduced fishing time for regulated species. In addition to subtle 
increases in fishing power, this also results in displacement of effort 
onto other species and into other regions.
    It added that large mobile gear vessels that had fished long trips 
on offshore grounds are shifting their effort to nearshore and inshore 
grounds to maximize landings from fewer DAS. This not only concentrates 
effort in areas known to be important spawning and juvenile habitat but 
is responsible for a sharp escalation in mobile/fixed gear conflicts as 
draggers and gillnetters compete for the same grounds.
    Response: The habitat question raised is responded to in Section 
13, ``Comments on Protection of Habitat.'' The Council is aware of the 
gear conflict issue raised and is presently discussing resolution of 
the problem. Any such resolution may be effected through the framework 
adjustment process.
    Comment 54: Two environmental associations opposed the proposed 
exemption that could allow a directed fishery for a regulated species 
(white hake) outside of DAS restrictions. They stated that NMFS 
classifies the white hake stock as fully-exploited and at a medium 
biomass level. They recommended that increased fishing effort on white 
hake should be discouraged, not promoted.
    The Maine DMR added that the white hake exemption should only be 
implemented if management is confident that this stock is under-
exploited and sufficient sea-sampling data is available to determine 
that this fishery can meet the 5 percent rule throughout the fishing 
year.
    Response: NMFS recognizes that this species is fully exploited. The 
measure would allow the Regional Director to exempt such a fishery in 
consultation with the Council, which may be an option if recruitment 
and biomass remain stable. Any such exemption cannot be granted if it 
jeopardizes FMP goals and objectives, including not allowing 
overfishing on white hake. Another commenter stated that any new 
participants to the dogfish trawl fishery implemented by Amendment 7 
should be monitored to assure conformity with the present gear.
    The commenter cautioned that any deviation from the gear used could 
negatively alter the fishery and increase the regulated species 
bycatch. He suggested that a level of sea sampling be mandated so that 
the fishery does not proceed unmonitored to assure that those who 
developed this fishery do not see its conservation benefit compromised.
    Comment 55: An environmental organization added that it supports 
the dogfish trawl fishery on Nantucket Shoals as long as skate bycatch 
restrictions are maintained and as long as periodic review indicates 
that: (1) Bycatch rates do not escalate, and (2) appropriate 
contributions to overall fishing mortality for multispecies targets due 
to this fishery are recognized.
    Response: NMFS will monitor the dogfish trawl fishery through sea 
sampling, as possible. No skate bycatch is allowed. Should the 
situation warrant, the Regional Director has discretion to cancel the 
exemption for the fishery.
    Comment 56: The Maine DMR stated that it favored inclusion of two 
state representatives and an industry member on the Multispecies 
Monitoring Committee.
    An environmental association recommended that membership on the 
technically based MMC proposed by Amendment 7 (61 FR 8546, March 5, 
1996) include an environmental representative and meet for purposes in 
addition to the annual review (61 FR 8559, March 5, 1996). It added 
that the MMC should meet when appropriate, including whenever data 
suggests that target TACs for any population are or may be likely to be 
overrun by more than 10 percent during any fishing year.
    Response: The MMC is formed by the Council. NMFS will forward the 
suggestions of these commenters to the Council.
    Comment 58: A commenter stated that the Council's mandate, as 
defined by the Magnuson Act, is to take immediate action to conserve 
and manage the fishery resources. He added that while Amendment 7 
purports to be a conservation measure, it is rather a measure that 
redirects fishing effort. He explained that it addresses the groundfish 
problem in a manner that ignores the fishery as a whole. He said that 
Amendment 7 will, in meeting its objective, create and prolong existing 
problems in the remaining fisheries. Specifically:
    1. DAS that place passive (i.e., fixed) gear in the same category 
of effort with mobile draggers and scallopers grossly discriminates 
against the passive gear fisherman. For example, an average gillnet 
fisherman with 120 nets in the water will utilize 6 nautical miles (nm) 
of bottom and occupy 0.41 acre. A dragger towing at 5.5 nm per hour 
will drag over 132 miles in 24 hours of towing and with a net sweep of 
205 ft will drag over 3,864 acres. Therefore, if DAS are used to manage 
the multispecies fishery, then DAS should be separate for passive and 
mobile gear, and DAS for passive gear should be greater than that 
assigned to the mobile gear sector.
    2. The proposed bycatch of lobster (in the mobile gear sector) 
should be eliminated. The lobster fishery must reduce lobster landings 
by 20 percent over 5 years. A 200 count lobster bycatch allowance 
leaves the door open for high grading and for non-reported landings. 
The value of 200 lobsters will result in a directed fishery by those 
vessels fishing outside of any DAS restrictions for non-regulated 
species. (The monetary value of the lobster is greater than the 
monetary value of their directed catch.) Finally, the lobster can be 
returned unharmed to the sea, which eliminates the wasteful discard 
argument.
    3. Dealers should report their purchases from all fishermen in a 
manner that allows a cross check on the mandated vessel reporting 
systems.
    Response: (1) Fishing mortality is not a function of the amount of 
area covered by the catch per unit of effort--a rough equivalent is a 
DAS. In theory, if each vessel gives up a DAS, each vessel experiences 
a 1/365th reduction in effort. As discussed in response to other 
comments, NMFS has disapproved the proposed measure for counting 
gillnet DAS in an effort to put that gear sector on the same basis as 
other gear sectors. Also, the Council is continuing to explore other 
alternatives for the gillnet sector.
    (2) The lobster bycatch allowance is not established as a means to 
conserve lobsters, but rather to reflect a legitimate bycatch in a 
fishery that may target for multispecies. If further lobster 
conservation measures are needed, they would more appropriately be 
addressed in management measures designed to protect that species.
    (3) NMFS has implemented a vessel reporting system that can be 
cross-checked to the dealer reporting system.
    Comment 59: The Maine DMR commented favorably on Amendment 7's 
exemption for fisheries certified by the Regional Director as having 
less than a 5 percent bycatch of regulated species. It noted with 
concern, however, that the procedures for identifying candidate

[[Page 27725]]

fisheries for exemption and the methodologies for establishing 
certification are not yet specified or in place. It urged the Regional 
Director to develop and set forth the requirements for application and 
certification as a matter of high priority.
    Response: Application procedures are in place and this rule 
establishes exemption procedures for the newly impacted large mesh 
fishery. Applicant must submit a written request to the Regional 
Director. The request must at least describe the area in which the 
fishery would operate, the period in which it would operate, the gear 
it would use, the approximate number of vessels likely to participate, 
and the species it would target, retain and land. Any evidence of the 
likelihood of such a fishery succeeding should be included with the 
request. The request will be reviewed by the Regional Director and a 
letter sent to the requestor explaining the process, which follows. The 
request will be analyzed to determine whether such a fishery would meet 
the 5 percent regulated species bycatch standard which, under Amendment 
7, has been revised to reflect the Council's intent that it is an 
absolute maximum (other restrictions on fishing gear and/or seasons may 
also be considered to reduce bycatch). The completed analysis will be 
forwarded, along with the request, to the Council, which will place the 
request for a large mesh exemption on the agenda of the next scheduled 
Council meeting.
    Comment 60: A commenter stated his concern that the majority of the 
small vessels fishing off of Cape Cod fish primarily in the same area 
that is designated for the small mesh dogfish fishery. He said that 
these small vessels fish exclusively for codfish and 80 percent of the 
fishing occurs from June through October. He stated that the small mesh 
used combined with less than 100 percent observer coverage raises the 
potential for large cod bycatches. The commenter recommends that 
regulated mesh or larger be required. He added that permitting a small 
mesh size in the dogfish fishery simply because the dogfish are 
difficult to remove from the net and does not justify the potential 
harm to stocks of CHY. He concluded that allowing vessels to use small 
mesh to target dogfish in the area can only lead to high discarding of 
regulated species as well as juvenile dogfish.
    Response: The Nantucket Shoals experimental dogfish fishery was 
monitored by the Massachusetts Division of Marine Fisheries for two 
seasons. During the first year of the program, 17 trips were observed 
and bycatch of regulated multispecies was less than one-half of 1 
percent. This program can be terminated if the Regional Director 
determines that bycatch of regulated species is excessive.
    Comment 61: An association commented that Amendment 7 data confirms 
that commercial hook fishing is labor intensive. It stated that based 
on Council data, small longline boats catch only 300 lb (136.1 kg)/man/
day as compared to large draggers, which catch 880 lb/man/day. 
Amendment 7, Vol. I, Table E.6.4.1.1.4 b & e. The commenter added that 
commercial hook fishing should thus be encouraged to reduce employment 
losses.
    An association commented that restoring habitat already destroyed 
by draggers would be another means of overcoming Amendment 7's 
employment dislocation with an eye toward rebuilding stocks in the 
future. The commenter suggested that displaced draggermen could be 
temporarily employed building artificial reefs ashore and towing them 
out to GB and the Great South Channel to enhance stock recovery. It 
concluded that even buy-back vessels could be sunk offshore to provide 
groundfish gardens.
    Response: NMFS is not opposed to any organization encouraging hook 
fishing. For NMFS' position on habitat protection, see Section 14, 
``Comments on Protection of Habitat.''
    Comment 62: The Connecticut DEP commented that it shares NMFS' 
concern about the condition of the winter flounder resource (as stated 
in the preamble to the proposed rule) but does not agree that 
eliminating the winter flounder possession limit in the Mid-Atlantic 
(MA) Regulated Mesh Area (RMA) will measurably improve the stock. The 
commenter cited the 21st SAW report, which states that only about 18 
percent of the SNE and MA area winter flounder landings are from 
fisheries in the MA RMA. He added that, ``(w)hatever increased 
management effort the Atlantic States Marine Fisheries Commission 
(ASMFC) and the Council adopt in response to the SAW advice will be 
more critical to successful flounder rebuilding than whether or not the 
10 percent/200 lb (90.7 kg) exemption exists during the 1996 fishing 
season.''
    Response: NMFS' concern about the winter flounder resource is not 
unfounded. Winter flounder are currently overexploited, at low biomass 
levels, and in need of fishing mortality that is reduced to as low a 
level as possible. As the winter flounder stock begins to rebuild, the 
Council may want to reconsider the MA RMA exemption at a later time.
    Comment 63: In response to NMFS' reservations expressed in the 
preamble to the proposed rule, the Connecticut DEP commented that 
likely changes in winter flounder management during 1996 will make more 
of a difference than the availability of state waters winter flounder 
exemption programs. It stated that the value of the program is that it 
allows a state to choose not to participate or withdraw. It said that 
participating states have been in compliance with the ASMFC plan but 
expects that, by summer, most states will (by review and revision of 
the plan) be out of compliance because the current SAW advice indicates 
a more pessimistic condition of the stock than did the previous SAW. 
The DEP raised the issue of whether disapproval of this exemption 
program outweighs the problems that may arise of a jurisdictional 
nature. It suggested that the program is better off preserved and 
opportunity should be provided through ASMFC and the Council to develop 
a more aggressive winter flounder conservation program, which also 
preserves the states' right to manage fisheries within their 
jurisdiction in accordance with approved plans.
    The Connecticut DEP further commented that both Connecticut and New 
York question the rationale of new Sec. 651.20(j)(7), the 500-lb 
(226.8-kg) possession limit when fishing in the State Waters Exemption 
Program (SWP) and not fishing under the DAS program. It explained that 
under Amendment 5, vessels enrolled in the SWP and not fishing under 
DAS could retain 500 lb (226.8 kg) of winter flounder, consistent with 
the exclusive economic zone (EEZ) fishermen not fishing under their 
DAS. Under Amendment 7, however, the possession limit of regulated 
species for EEZ fishermen when not under DAS is zero. The commenter 
stated that Connecticut and New York believe that fishermen under the 
SWP should be using their DAS when in possession of winter flounder, 
that when in the SWP and not on DAS, that possession of winter flounder 
should be prohibited. The Connecticut DEP argued that there is no 
indication that the Council intended to allow 500 lb (226.8 kg) of 
winter flounder in the SWP when not fishing under DAS, while 
prohibiting EEZ fishermen from any possession of winter flounder when 
not fishing under DAS.
    Response: NMFS has not disapproved the State Waters Winter Flounder 
exemption program. NMFS believes the Council intended to allow the 500-
lb (226.6-kg) limit when it voted to keep

[[Page 27726]]

current exemption programs in place. The 500-lb (226.8-kg) allowance 
was established by Amendment 5.
    Comment 64: The Connecticut DEP commented that the proposal to move 
the boundary of the MA area may create an enforcement problem in Block 
Island Sound. It stated that there is no longer a territorial sea 
within 3 miles north and west of Montauk, due to a supreme court 
decision in the 1980's that had the effect of changing New York's 
``baseline'' and consequently, the location of the New York territorial 
sea. It suggested that the matter could be resolved by revising the 
location of the line as follows:
    Section 651.20(d)  Mid-Atlantic regulated mesh area.
    (1) Area definition. The Mid-Atlantic regulated mesh area is that 
area bounded on the east by a line running from the Rhode Island 
shoreline at Watch Hill, RI southwesterly through Fishers Island, NY, 
to Orient Point, NY, and from Orient Point southeasterly to the 
intersection of the 3-nautical mile line east of Montauk Point, 
southwesterly along the 3-nautical mile line to the intersection of 
72 deg.30' W. Long. and south along that line to the intersection of 
the outer boundary of the EEZ.
    In support of the above, the commenter stated that the problem with 
the northern terminus of the line in the proposed rule is that it would 
bisect the shoreline along the Rhode Island south shore, an area in 
which Connecticut, Rhode Island, and New York vessels commonly trawl. 
It said that it is inadvisable to have a mesh separation line fall in 
the middle of an area commonly trawled, for enforcement reasons. The 
commenter stated that its suggested revision resolves the original 
problem of splitting Long Island Sound into two mesh management areas 
(the original 72 deg.30' line) and avoids splitting Block Island Sound 
into two mesh management areas. The Connecticut DEP added that its 
proposal has been confirmed to be acceptable to Rhode Island, New York, 
and the USCG.
    Response: NMFS has adopted the Connecticut DEP's suggested revision 
as requested by the States of Connecticut, Rhode Island and New York, 
and by the Council.
    Comment 65: An association commented that the elimination of a 
proposed 100-lb (45.4-kg) groundfish allowance for lobster trap 
fishermen is unnecessary. It added that this would prohibit a lobster 
fisherman from bringing home a legal size codfish for dinner. It 
further noted that if a lobster fisherman has a multispecies permit and 
his vessel is more than 30 ft (9.1 m) long, he may not qualify for a 
DAS allowance, and would still be unable to land a (legal size) 
codfish.
    The association added that the proposed rule says that no 
groundfish may be taken without a groundfish permit and while no more 
permits will be issued, those vessels with permits that are over 30 ft 
(9.1 m) (many of the association's lobster vessels are in the 31- to 
42-ft range (9.5 m to 12.8 m)) must prove groundfish landings of at 
least 500 lb (226.8 kg) to renew their permits. The association 
expressed concern that these vessels would actually lose their permits. 
The association stated that some allowance should be permitted if only 
for personal use. Further, no restrictions are in place to keep 
groundfish fishermen from taking lobster.
    The association suggested that some small incidental groundfish 
catch be allowed for all lobstermen with a groundfish permit or that an 
incidental bag limit permit be established to accommodate these 
circumstances.
    Response: This issue was raised and considered by the Council. The 
Council decided to disallow a regulated species bycatch in the lobster 
fishery, because the TACs are set so low and Amendment 7 focuses on 
eliminating regulated species bycatch in fisheries capable of taking a 
bycatch of regulated species.
    Comment 66: An association commented that it presumes that 
restrictions on possession of groundfish by lobstermen do not include 
possession of ``groundfish racks'' that were purchased for use as bait. 
It suggests that some wording be inserted into Amendment 7 to recognize 
``groundfish racks'' as legal bait possessed by lobster vessels.
    Response: The Northeast Multispecies regulations apply to fish and 
fish parts, and as such, ``groundfish racks'' must meet the minimum 
size established by the multispecies regulations. Furthermore, a 
Northeast Multispecies permit is required to possess ``racks'' of 
multispecies finfish.
    Comment 67: An association commented that it strongly opposes the 
total absence of any restrictions that would control the targeting of 
lobsters by groundfish vessels. It further stated that the absence of 
any wording regarding the subject allows the unrestricted targeting of 
lobsters while fishing both during DAS and outside of DAS. The 
commenter said that this omission encourages a redirection of effort 
onto the lobster resource.
    The association suggested that some significant controls on the 
targeting of lobsters by groundfish vessels be included in the plan.
    Response: Such a restriction is within the purview of the American 
Lobster FMP and is not, as such an Amendment 7 issue.
    Comment 68: A commenter stated that under Amendment 7 (and 
acknowledged under Amendment 5 as well), a vessel's length, gross 
registered tonnage, and net tonnage may be increased only once, not 
exceeding 10 percent of its previous size. He asserted that, in light 
of encouragement to pursue underutilized species such as herring which 
are usually high-volume fisheries, some vessels were rigged for mid-
water trawling. As a result, he stated that his vessel is often loaded 
to the point of being unsafe. He stated that he has already experienced 
a swamping and suggested that such vessels be allowed to increase hold 
capacity, i.e., length and tonnage. He stated that the restriction on 
horsepower is an adequate control on the vessel's fishing power and, 
therefore, limiting the vessel's other dimensions is not necessary.
    Response: This issue relates to the provisions for vessel upgrades 
as established by the regulations implementing Amendment 5 and which 
are unchanged by this rule. The purpose of the upgrade restrictions is 
to prevent limited access multispecies permit holders from increasing 
the fishing power of their vessels, exacerbating overcapitalization and 
overfishing issues in this fishery. Horsepower alone is not a 
sufficient limitation of vessel fishing power, especially where the 
current horsepower of the vessel may allow the other dimensions to be 
increased. Moreover, a vessel that wishes to fish for herring and other 
mid-water trawl fisheries not regulated under the Northeast 
Multispecies FMP may elect to give up their limited access permits 
thereby avoiding vessel upgrade restrictions.
    Comment 69: The Marine Mammal Commission stated that to make 
meaningful progress towards meeting the Council's revised harbor 
porpoise goal and requirements of the Marine Mammal Protection Act 
(MMPA), the network of time-area closures for the coming year should be 
expanded. The Marine Mammal Commission suggested that the Council's 
Harbor Porpoise Review Team (HPRT) meet in time to implement any 
recommendations it might make for the summer-fall fishing season off 
the coast of central and northern Maine. It also recommended, to better 
cover the potential periods of high bycatch in the Mid-coast area as 
reflected by current observer data, that the Council and/or NMFS 
consider

[[Page 27727]]

expanding the effective dates for the Mid-coast closure to include the 
months of September through December and April through May. It added 
that it believed that it would be reasonable to allow fishing with 
acoustic deterrents in the extended closure periods recommended above 
provided evidence continues to indicate their effectiveness.
    Response: The Council's HPRT met in May to discuss additional 
expansion of time-area closures. The HPRT recommendations were 
scheduled for presentation to the Marine Mammal Committee in late May 
so that measures could be considered by the full Council at its June 
meeting. This will allow any approved measures to be effective in the 
mid-coast area by September. Continued use of acoustical devices in 
these closed areas will be considered based on the results of recently 
concluded experimental fisheries held this spring and the 
recommendations of the Harbor Porpoise Take Reduction Team, expected to 
be available later this summer.
    Comment 70: The Marine Mammal Commission stated that as the number 
of northern right whale calves counted in 1995 is exceeded by the 3 
percent mortality reported for the past 12 months, action must be taken 
to exclude gillnet gear in times and areas where right whales are known 
to occur in greatest numbers. It added that these areas include the 
Great South Channel from April through June, and Cape Cod Bay from 
February through May. It said that action taken by the Council to 
reduce entanglement threats has been limited, i.e., it has prohibited 
gillnet fishing in parts of one area (the Great South Channel) that are 
important for groundfish spawning during part of the peak period of 
right whale occurrence.
    The Marine Mammal Commission acknowledged that Amendment 7 proposes 
expanding the scope of the Council's framework adjustment procedure to 
include possible closures to protect right whales and other endangered 
whales, however, no further measures are proposed in Amendment 7 in 
this regard and it is unclear whether or when the Council might use 
this authority.
    Therefore, the Marine Mammal Commission recommended that NMFS 
either expand Amendment 7 or take separate action under authority of 
the Endangered Species Act (ESA) and MMPA to prohibit the use of 
gillnets from April through June in the Great South Channel area, which 
is designated as critical right whale habitat).
    In addition, the Marine Mammal Commission recommended that NMFS 
consult with the Commonwealth of Massachusetts to develop measures for 
gillnets and other fishing gear capable of entangling right whales from 
February through May in the Cape Cod Bay right whale critical habitat.
    Response: The issues raised in this comment can be addressed under 
the framework actions, provided for in the final rule. The NEFMC did 
not forward a recommendation to expand the Area 1 closure to include 
the entire right whale critical habitat in time for implementation this 
spring. In order for NMFS to issue a regulation under the ESA, to be 
effective by April 1997, NMFS would need to publish a proposed rule 
within the next few months. NMFS is considering regulatory options to 
accomplish this.
    NMFS will soon sign a Cooperative Agreement with the Commonwealth 
of Massachusetts to enter into a coordinated state-Federal effort to 
protect and recover the endangered and threatened marine fauna of 
Massachusetts, including the right whale. Once signed, both parties 
will begin discussion of several endangered species issues within the 
Commonwealth, including additional protection for the right whale 
critical habitat area in Cape Cod Bay.
    Comment 71: An association stated that under the MMPA, NMFS 
classifies the sink gillnet fishery as a Category I and bottom trawl, 
longline, and hook and line fisheries as Category III. However, 
Amendment 7 states ``it should be noted that the bottom trawl fishery 
has incidental takes of striped dolphins, coastal bottlenose dolphins 
and pilot whales.'' The commenter suggested that based on this finding 
alone, the bottom trawl; fishery ought to be moved to Category II.
    Response: This comment relates to MMPA requirements and is not 
relevant to Amendment 7. In any event, most of the few takes observed 
in this fishery were determined to have been dead before being taken. 
In addition, because the observer coverage was low, the estimated 
serious injury and mortality levels extrapolated from those few data 
points is statistically weak. Therefore, it was determined that the 
``North Atlantic Bottom Trawl'' fishery would remain as a Category III 
fishery under the MMPA in the final rule to establish the 1996 List of 
Fisheries (60 FR 67063, December 28, 1995).
    Comment 72: An association stated that closed areas should be 
opened to low-impact hook fishing during non-spawning periods.
    Response: One reason for the existence of closed areas is to halt 
fishing mortality during the period of closure. Any type of fishing 
would defeat the purpose of the closure.

14. Comments on Protection of Habitat

    Comment 73: Many comments were submitted raising issues related to 
the impact of certain fishing gears on marine habitat and, in some 
cases, proposing restrictions on this gear and providing incentives for 
other gear types. The major points of all habitat-related comments are 
summarized below, with emphasis on comments from the Darling Marine 
Center at the University of Maine and the Cape Cod Commercial Hook 
Fishermen's Association, because they are representative of issues 
raised in the majority of the other comments received.
    One said NMFS should be an active partner with the Council in 
identifying areas of critical concern and investigate the use of 
intensive gear, and if necessary, restrict or prohibit particular gear 
use. There was general disagreement that additional studies would be a 
sufficient management approach and further disagreement with the 
decision not to include trawl gear restrictions at this time.
    One group stated that trawling and dredging activities have the 
capability of altering structurally complex bottom communities, 
principally through the removal of biomass, and that these alterations 
will result in completely different bottom communities occupying these 
locations.
    In discussing the legal standards of the Magnuson Act and the APA, 
this group stated that an international consensus is emerging that 
management agencies should apply a precautionary approach to fisheries 
management. It was emphasized that it would be more prudent to protect 
some of these areas as soon as possible by establishing marine reserves 
to protect specific habitat features such as habitat complexity. 
Increased complexity would result in increasing survivorship of 
postlarval and early juvenile size classes, thus increasing recruitment 
to harvested populations. Given the particular relevance of the 
precautionary approach to the numerous uncertainties involved in 
managing fisheries, it would seem to be incumbent upon managers and 
research scientists alike to prevent long-term damage to ecosystems 
from occurring while their theories are being tested.
    An association contends that Amendment 7 fails the following 
national standards for the reasons mentioned: National Standard 1, by 
ignoring gears' differential habitat and selectivity impacts; National 
Standard 2,

[[Page 27728]]

because best science demonstrates landings approximate catch only in 
the hook fishery and also demonstrates that heavy dragger gear damages 
groundfish habitat, diminishing stocks; National Standard 3, by 
ignoring management units based on types of gear and similar fishing 
practices; National Standard 4, since allocation is necessary to 
discourage dragging on hard bottom and encourage conversion to hook 
fishing; National Standard 5, as Amendment 7 does not promote long-run 
efficiency since fishing power is not reduced absent dragger gear 
restrictions; and National Standard 6, by ignoring fishing practices 
and by wrongly incorporating the ``fair and equitable'' standard into 
analysis of this national standard.
    An association disputed the amendment's statement that, as 
currently drafted, ``(t)he Magnuson Act limits the Council's role to 
commenting on proposals that would affect fishery resources and their 
habitats.'' In fact, the commenter notes that beyond merely commenting, 
the Council is empowered to ``make recommendations concerning any 
activity . . . that, in the view of the Council, may affect the habitat 
of a fishery resource * * *.'' 16 U.S.C. section 1852(I)(1)(A).
    Response: There is growing interest and research into trawling and 
dredging effects on bottom habitat and benthic communities. Research to 
date indicates that mobile gear is having observable effects on the 
bottom in some areas and little discernable effect in other areas. The 
causes for differing effects have not yet been identified. In addition, 
the ecological impacts of mobile gear on commercially important stocks 
remain largely unknown. NMFS does not believe that the scientific 
information currently available is adequate to show that placing 
restrictions on mobile gear would result in benefits for commercially 
important stocks. NMFS does not intend to wait for ``full scientific 
certainty'' before making a recommendation that might restrict the use 
of mobile gear in certain areas, but rather is cautious in instituting 
such restrictions with uncertain and inadequate data. To seek 
resolution of this issue, the NMFS and the Council support additional 
research on this topic so that future management measures can account 
more for the effects of fishing gear, especially if additional research 
indicates that recruitment could be enhanced by reducing the amount of 
disturbance to benthic habitat. Currently the Stellwagen Bank National 
Marine Sanctuary and NOAA's National Undersea Research Program are 
among those proposing research into the effects of bottom gear on 
groundfish habitat.
    While NMFS and the Council are not advocating specific management 
measures to avoid or reduce the effect of mobile fishing gear on bottom 
habitat, it is worth noting that Amendment 7 does include measures such 
as closed areas and overall effort reductions that will reduce the 
amount of trawling and thus reduce the frequency of disturbance to 
bottom habitat used by multispecies stocks. Although these effort 
reductions will not include permanent marine reserves that are off-
limits to trawling and dredging gear, they might provide opportunities 
to investigate whether reduced pressure on habitat from bottom gear may 
over time enhance the structural complexity of the bottom in some areas 
and increase survivorship of early life stages of commercially 
important species.
    Regarding the role of the Council in respect to habitat, the 
commenters raise some valid points. Fishery management plans prepared 
by the Council or Secretary include habitat sections that identify the 
habitat needs of the species. NMFS works with developers and permitting 
agencies to avoid, minimize and mitigate the anticipated habitat 
impacts from a proposed activity. Fishery management plans are one tool 
NMFS and the Council can use to identify habitat essential to 
commercial stocks.
    The commenters disagree with the Council's approach taken in 
Amendment 7 that concentrates on achieving reductions in fishing 
mortality through controls on fishing effort. The supporting analyses 
for Amendment 7 referenced by the commenters demonstrates that the 
Council and NMFS realize that the recovery of severely depleted fish 
stocks can be enhanced by incorporating more comprehensive scientific 
information into management decisions. In particular, NMFS is committed 
to conducting additional research into the habitat requirements and 
life histories of multispecies stocks so that future management actions 
can focus on those measures that will be most effective in enhancing 
recruitment. For Amendment 7, NMFS and the Council used available 
information to develop a suite of management measures, including closed 
areas and effort reductions, that will reduce fishing pressure on the 
stocks as well as their habitat. NMFS acknowledges that more work is 
needed in this area to tailor future management actions to the 
biological needs of target species, which include habitat requirements.
    As discussed throughout this document, NMFS has determined that 
Amendment 7 is consistent with the national standards, which conclusion 
is supported by the record of decision.
    Comment 74: The Maine DMR stated that the science (both data and 
theory) supporting management must change and that the importance of 
such parameters as fish size and the qualitative differences of habitat 
protection at different seasons should be more effectively integrated 
into the analysis.
    Response: The Council acknowledges, in its discussion on research 
to support fishery habitat protection (Volume I of Amendment 7), the 
need to conduct research to determine which habitats are most important 
to support groundfish stocks throughout their life history stages and 
to understand factors essential for sustained fisheries production. As 
stated earlier, habitat protection and conservation is an integral 
component of fishery management; NMFS strongly supports the advancement 
of marine research to improve its understanding of the relationship 
between species and habitat during various life stages. Such 
information will be incorporated into fishery management plans as it 
becomes better understood and defined.
    Comment 75: An association commented that the national standards 
dictate a differentiation between hook fishing and other commercial 
groundfishing, just as has occurred in other regions of the country. It 
added that the Council predictably relies on the fair and equitable 
argument to defend its failure to distinguish the commercial hook 
fishery; however, a Magnuson Act guideline states: ``An allocation need 
not preserve the status quo in the fishery to qualify as fair and 
equitable, if a restructuring of fishing privileges would maximize 
overall benefits.''
    An association discusses Norwegian studies that documented how 
longlining is a more size-selective fishing method than trawling. The 
commenters pointed out that these studies further proved that yield and 
employment effects were greater in the longline fishery as compared to 
the trawl fishery.
    Another association commented that the Council rejected the Cape 
Cod Commercial Hook Fishermen's Association (CCCHFA) plan because it 
had no measurable objectives, only covered a limited region, and had 
direct allocation effects on a particular sector of the industry. The 
association said that the reasons for rejection are without support and 
invalid as they are contrary

[[Page 27729]]

to the administrative record already submitted to the Council.
    Response: Gear selectivity was discussed in the development process 
of Amendment 7 but rejected as an option in the final outcome. In 
making this decision, the Council and NMFS determined that the 
management regime should, to the extent practicable, preserve the 
multifaceted nature of the Northeast Multispecies fishery. The Council 
could revisit this issue at a later time through the expansive 
framework capability under Amendment 7.

Comments on Enforceability Issues

    The USCG and NMFS Enforcement requested that a vessel operator be 
required to retain on board all DAS confirmation numbers for the 
current fishing year. The Council decided that this was an unnecessary 
burden on the industry and recommended instead that they be required to 
retain numbers for the current and immediately prior trips. The 
Council's recommendation is adopted here.
    They requested that the current provision requiring a vessel to 
have a standard tote on board the vessel be retained. This provision 
was inadvertently deleted in the proposed rule and is reinserted here.
    They commented that the call-in requirement for charter/party 
vessels would not enhance enforcement and should be disapproved. The 
measure has been disapproved.
    They requested a change to require a vessel operator when hailed by 
an authorized officer via VHF-FM radio, to respond to such hail. This 
change has been incorporated.
    The Council requested a revision to the definition for the 
``Multispecies Monitoring Committee'' to clarify their intent with 
respect to membership. This change is incorporated in the final rule.
    The Council suggested an addition to the qualification criteria for 
Hook-gear limited access permits to clarify how recreational landings 
should be handled. This change is incorporated. Additional comments of 
enforcement concern follow.
    Comment 76: The USCG stated that Amendment 7 cannot be successful 
without a fully integrated approach between its at-sea efforts and NMFS 
Enforcement shoreside activities. It stated that it is prepared to 
assign a high priority to enforcement concerns.
    A commenter stated that Amendment 7, without enforcement, will not 
affect that segment of the fleet that systematically uses small mesh 
liners inside the regulated mesh size codend. The commenter added that 
during the lag time between assessment and final judgment of those 
perpetrators that are caught, the perpetrators still fish, contract 
debt and shelter revenue. He stated that at-sea enforcement must be 
fast and without warning to be effective and justice should be swift. 
He added that a port reporting and enforcement system that effectively 
detects misreporting or no reporting of catch is also needed.
    Another commenter stated that some kind of incentive to follow the 
rules is needed. He implied that some people who will be left in the 
fishery will not follow the rules.
    An association stated that TACs encourage non-compliance in the 
form of under-reporting and high-grading and are costly to enforce.
    Response: NMFS Northeast Region enforcement personnel and the USCG 
First District Commander have integrated their planning to ensure that 
there is an effective USCG--NMFS enforcement strategy in place to 
support Amendment 7. NMFS Law Enforcement continues to work toward 
effective implementation of the effort control and monitoring measures 
in the Multispecies fishery and will explore ways to improve compliance 
with existing regulations in partnership with the USCG and natural 
resources divisions of each coastal state. NMFS Law Enforcement and 
NOAA General Counsel work cooperatively to investigate and bring to a 
conclusion, all cases involving violation of the conservation 
regulations. NMFS Law Enforcement believes in the concept of voluntary 
compliance and is actively pursuing education as a means to attainment 
of voluntary compliance. This effort, combined with penalties as 
appropriate, provide the incentives to adhere to conservation 
regulations.
    Comment 77: A commenter stated that the present vessel call-in 
system to monitor DAS is obsolete and recommends instituting a basic 
VTS without messaging capability or a magnetic card system with PIN 
number verification.
    Response: Under Amendment 7 approximately 800 additional vessels 
operating in the Northeast Multispecies Fishery will be required to 
report their departures and arrivals from and to port via telephone 
under applicable effort reduction reporting provisions. A magnetic card 
system is not logistically feasible as it would require installation of 
a magnetic card reader device in every operating port on the Northeast 
seaboard. When a basic VTS system is adopted, the final performance 
standards for all VMS identify two-way messaging capability as a 
fundamental performance requirement for any VMS system approved by 
NMFS. A VTS requirement was established in Amendment 5, but is awaiting 
testing and vendor certification procedures to be complete before it 
becomes fully implemented.

Changes in the Final Rule From the Proposed Rule

    As discussed above, some changes from the proposed rule were 
necessary to respond to a review of the amendment by NMFS Office of Law 
Enforcement, the Council's Law Enforcement Committee and the USCG. 
Other changes made are technical or administrative in nature and 
clarify or otherwise enhance enforcement and administration of the 
fishery management program. These changes are listed below in the order 
that they appear in the regulations.
    In Sec. 651.2, the definition for ``DAS (Days-at-Sea)'' is revised 
to remove the disapproved provision to count DAS for gillnet vessels as 
time when gear is in the water.
    In Sec. 651.2, the definition for ``Multispecies Monitoring 
Committee'' is revised to clarify that the number of representatives 
from the affected coastal states appointed by the ASMFC is limited to 
two.
    In Sec. 651.2, definitions ``Prior to leaving port'' and ``Upon 
returning to port'' are added to clarify when a vessel must begin and 
end a multispecies DAS trip under the call-in requirement.
    In Sec. 651.2, the definition for ``Standard box'' is no longer 
necessary and is removed.
    In Sec. 651.2, the definition for ``Sink gillnet'' is revised for 
clarification.
    In Sec. 651.4, paragraph (b)(1)(ii)(A) is revised to clarify the 
qualification criteria for limited access Hook-Gear permits for 
recreational vessels that recorded landings by number and not by 
weight.
    In Sec. 651.4, paragraph (f)(3) is revised to clarify that a vessel 
has only one opportunity to change its permit category in 1996 during 
the 45-day time period after implementation of this rule and that this 
45-day opportunity will be available each fishing year.
    In Sec. 651.9, paragraph (a)(3) duplicated (a)(4) in the proposed 
rule and is removed, paragraphs (a)(4) through (a)(13) are redesignated 
as (a)(3) through (a)(12), respectively.
    In Sec. 651.9, paragraph (b)(4), the prohibition on possession 
limits is revised to reflect changes in Sec. 651.27 due to the 
disapproval of the possession limit for winter flounder.
    In Sec. 651.9, paragraph (b)(8), which referenced a disapproved 
provision, is removed, and paragraphs (b)(9) through

[[Page 27730]]

(b)(12) are redesignated (b)(8) through (b)(11), respectively.
    In Sec. 651.9, paragraphs (c)(4) and (d)(4) are added to enhance 
enforcement of the provisions in Sec. 651.33(a) and (c).
    In Sec. 651.9, paragraph (e)(8), a reference to Sec. 650.20 is 
corrected to read Sec. 651.20.
    In Sec. 651.9, paragraphs (e)(12), (e)(13), (e)(14), and (e)(15), 
are revised by being made more explicit.
    In Sec. 651.9, paragraph (e)(17) is revised by eliminating the 
reference to Sec. 651.20(d)(3), a reference to the disapproved winter 
flounder exemption in the Mid-Atlantic regulated mesh area.
    In Sec. 651.9, paragraph (e)(22) is made more explicit.
    In Sec. 651.9, paragraph (e)(32) is made more explicit.
    In Sec. 651.9, paragraph (e)(38) is added to reflect the 
requirement to have a standard tote on board when fishing under a 
possession limit restriction.
    Section 651.10 is revised, as requested by the Council, NMFS 
Enforcement and the USCG, to include a requirement that a vessel 
operator respond if hailed by an authorized officer via VHF-FM radio.
    In Sec. 651.20, paragraphs (a)(2)(ii), (c)(2)(ii), and (d)(2)(ii) 
are revised to include cross references to the Large Mesh Individual 
DAS Category in Sec. 651.22(b)(7) approved under the resubmitted 
portion of Amendment 7.
    In Sec. 651.20, paragraph (d)(2) is revised to remove the reference 
to paragraph (d)(3), the disapproved winter flounder possession limit.
    In Sec. 651.20, paragraph (d) the definition of the ``Mid-Atlantic 
Regulated Mesh area,'' is slightly revised as a result of comments from 
and an agreement between the states bordering the area, the USCG and 
NMFS enforcement.
    In Sec. 651.20, paragraph (d)(3) is removed to reflect the 
disapproval of the winter flounder possession limit in the Mid-Atlantic 
regulated mesh area.
     In Sec. 651.20, paragraph (g) is revised to clarify that the net 
measurement procedure described referred to all nets with the exception 
of gillnets. Paragraph (g)(4) is added to include net measurement 
procedures for gillnet gear. Implementation of this procedure is 
delayed to allow the gillnet fleet time to adjust to this new 
procedure.
    In Sec. 651.20, paragraph (i) is revised to clarify that scallop 
vessels possessing multispecies must have a valid multispecies permit 
issued under this part.
    In Sec. 651.20 (i) and (j)(7), Sec. 651.27, and Sec. 651.33(a) and 
(c), a measure inadvertently deleted in the proposed rule, that 
requires vessels when subject to a possession limit to have on board at 
least one standard tote, is added.
    In Sec. 651.22, paragraphs (b)(1)(i) and (b)(2)(i), (b)(5)(i), 
(b)(6)(i), and (b)(7)(i) have been revised to reflect that the DAS 
allocations for the 1996 fishing year have been prorated based on the 
amount of time remaining in the 1996 fishing year, or 83 percent.
    In Sec. 651.22, paragraphs (b)(1)(ii) and (b)(2)(ii) are revised to 
reflect that vessels holding both Gillnet and Individual DAS category 
permits are to be initially assigned into the Fleet DAS category, 
rather than the Individual DAS category.
    In Sec. 651.22, paragraph (b)(6) is revised and paragraph (b)(7) is 
added to reflect the approval of the measures included in the 
resubmitted part of Amendment 7, which allows vessels the ability to 
elect either the Large Mesh Fleet DAS program or the Large Mesh 
Individual DAS program.
    In Sec. 651.22, paragraph (c) is redesignated as paragraphs (c)(1) 
and (c)(2) to clarify that a vessel possessing both a 1995 limited 
access Gillnet permit and Individual DAS permit is eligible to appeal 
its initial allocation of gillnet DAS.
    In Sec. 651.22, paragraph (d)(2)(i), the date by which a vessel may 
appeal its allocation of DAS is revised to reflect a later than 
anticipated implementation date for this amendment.
    In Sec. 651.22, paragraph (g), is clarified by replacing the phrase 
``fishing year'' with ``calender year'' and by clarifying the 
requirement for the 1996 calender year.
    In Sec. 651.27, paragraph (b) is removed to reflect that the 
possession limit for winter flounder has been disapproved, paragraph 
(c) is redesignated as paragraph (b), and the title to Sec. 651.27 was 
revised accordingly.
    In Sec. 651.28, paragraph (c) is removed to reflect the disapproval 
of the charter/party call-in requirement.
    In Sec. 651.29, paragraphs (b)(1), (b)(2), (b)(4), and (b)(5), all 
references to charter/party vessels are removed to reflect that the 
call-in requirement for charter/party vessels has been disapproved.
    In Sec. 651.29, paragraph (b)(3) is revised to clarify that DAS 
confirmation numbers for the current trip and immediately prior 
multispecies fishing trip must be retained on board the vessel.
    In Sec. 651.29, paragraph (d) is revised to reflect the disapproval 
of the proposal to count gillnet DAS as time when gillnet gear is in 
the water.
    In Sec. 651.29, paragraph (e) is added to describe the call-in 
requirement for the 20 day spawning season restriction.
    In Sec. 651.32, paragraph (a), the reference to Sec. 651.32(h) is 
corrected to read Sec. 651.21(h), and paragraph (a) is redesignated as 
paragraphs (a)(1) and (a)(2) to include gillnet area closures that were 
implemented on March 5, 1996 (61 FR 8494) under Framework 14 to the 
FMP.
    In Sec. 651.33, paragraph (b), the phrase ``and has declared into 
the charter/party fishery'' is removed to reflect that the declaration 
into the charter/party fishery has been disapproved.
    In Sec. 651.40, paragraph (a)(3), the reference to (a)(5) is 
corrected to read (a)(6).

Classification

    The Regional Director determined that Amendment 7 to the FMP is 
necessary for the conservation and management of the Northeast 
multispecies fishery and that it is consistent with the Magnuson Act 
and other applicable laws.
    The Council prepared a FSEIS for Amendment 7; a notice of 
availability was published on February 16, 1996 (61 FR 6230). This 
action is expected to have a significant economic impact on the human 
environment. The Assistant Administrator for Fisheries, NOAA (AA), 
determined upon review of the FSEIS and public comments on the Draft 
SEIS that the PA of the amendment is environmentally preferable to the 
SQ. The FSEIS demonstrates that the PA contains management measures 
able to rebuild severely depleted stocks of haddock, cod, and 
yellowtail flounder; protect harbor porpoise; provides economic and 
social benefits to the fishing industry in the long term; and should 
provide better balance in the ecosystem in terms of groundfish 
resources.
    This final rule has been determined to be ``economically 
significant'' for purposes of E.O. 12866, but probably will not have an 
annual impact on the economy of $100 million or more, and will not 
adversely affect the productivity, environment, public health or safety 
or state, local or tribal governments or communities in the long term. 
By increasing multispecies catch rates in the long term and reducing 
operating costs, this action is expected to make the industry more 
productive after recovery of multispecies stock abundance and to 
increase the competitiveness of the domestic industry in comparison to 
foreign suppliers.
    In compliance with the RFA, the Council prepared an IRFA as part of 
the RIR that concluded that this action would have significant economic 
impacts on a substantial number of small entities. The FRFA consists of 
the

[[Page 27731]]

IRFA and comments and responses in this final rule associated with the 
public's concerns about possible effects of this rule on small 
entities. Responses to comment numbers 12, 13, 14, 18, 22, 23, 25, 26, 
27, 28, 29, 35, 37, 39, 40, 43, 46, 48, 51, 58, 65, and 67 are 
especially relevant to concerns of the public about possible effects of 
one or more measures contained in this rule on small entities, often 
focusing on a particular group of small entities. The measures 
contained in this rule are restrictive, and impacts on the industry are 
expected to be significant. In the early years of the program, some 
vessels may be unable to cover their costs in part because of these 
restrictions and also due to the poor condition of the stocks. Such 
vessels are expected to leave the fishery. Relative to the SQ, however, 
this program is expected to produce higher long-term benefits to the 
industry and the Nation. The majority of the vessels in the Northeast 
multispecies fishery are considered small entities. This action is 
expected to reduce the overall revenues of the multispecies industry by 
approximately 10 to 25 percent in the first 3 years of the program 
compared to the SQ. The impact of the action will not be uniform for 
all vessels or all sectors. Instead, the action will have differential 
effects on gear groups, with trawlers potentially being relatively more 
disadvantaged than other vessels. This is primarily because trawlers 
produce the largest share of total multispecies landings and have 
higher costs. Alternately, smaller and independent vessels are well 
suited to adapting to year to year changes in species as availability 
changes. Generally, smaller vessels are more flexible and have lower 
costs. This action will allow vessels less than or equal to 30 ft (9.1 
m) to be exempt from the DAS program, provided they comply with the 
300-lb (136.1-kg) CHY possession limit. The CHY comprise 15 percent of 
the revenue of these vessels.
    The negative effects of the non-selected alternatives would be 
greater than those of the selected measures. Expected impacts of the 
action on crew income are negative in the first 5 years of the program 
and positive thereafter. Likewise, the level of employment is expected 
to decline in the short-term to an undetermined extent but will rebound 
over the long term. Projected revenues from fishing will be positive 
beginning in the year 2001, which will create demand for other goods 
and services in the area and lead to increased production and 
employment. The overall impacts will be positive. The action is 
expected to increase net benefits to the nation by $18 million over the 
10-year rebuilding period. The recreational sector is not expected to 
be negatively impacted by this action.
    Also, regarding the RFA, steps are being taken by NOAA to reduce 
the socio-economic burden on small entities through a buyout program, 
being implemented in two phases, aimed at reducing fishing capacity in 
the groundfish fishery and offering an economic alternative to vessel 
owners in the fishery. NOAA awarded grants to 11 New England fishing 
vessels under a $2 million pilot buyout program in February, 1996, in 
return for scrapping their vessels and surrendering their fishing 
permits. A larger vessel buyout program for as much as $25 million is 
being developed for implementation after Amendment 7 is made effective.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act unless that collection of information 
displays a currently valid OMB control number.
    This rule contains six new collection of information requirements 
subject to the Paperwork Reduction Act. The collection of this 
information has been approved by the OMB, and the OMB control numbers 
and public reporting burden are listed as follows:
    1. The Nantucket Shoals Dogfish exemption, OMB# 0648-0202, will 
require vessel notification (2 minutes/response).
    Revisions to the existing requirements are:
    2. Proof of VTS installation, OMB# 0648-0202, (2 minutes/response);
    3. Call-in or card system, OMB# 0648-0202, (2 minutes/response);
    4. Limited access permit, OMB# 0648-0202. Appeal of the DAS 
allocation will require written submission (2 hours/response);
    5. Limited access permit appeals, OMB# 0648-0202, appeal of denied 
permits will require written submission (0.5 hours/response);
    6. Three new vessel permit categories (Handgear, Charter/Party and 
Scallop Multispecies Possession Limit), OMB # 0648-0202, are created 
with no increase in burden above that currently associated with vessel 
permits.
    A formal section 7 consultation under the ESA was initiated for 
Amendment 7 to the FMP. In a biological opinion dated February 16, 
1996, the AA determined that fishing activities conducted under 
Amendment 7 and its implementing regulations may affect, but are not 
likely to jeopardize the continued existence of any endangered or 
threatened species under the jurisdiction of NMFS or result in the 
destruction or adverse modification of critical habitat.
    Adverse impacts on marine mammals resulting from fishing activities 
conducted under this rule are discussed in the FSEIS.

List of Subjects in 50 CFR Part 651

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 28, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 651 is amended 
to read as follows:

PART 651--NORTHEAST MULTISPECIES FISHERY

    1. The authority citation for part 651 continues to read as 
follows:

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

    2. In Sec. 651.2, the definition for ``Charter and party boats'', 
``Sink gillnet'', and ``Standard Box'' are removed; the definitions for 
``Alewife'', ``American shad'', ``Atlantic croaker'', ``Black sea 
bass'', ``Blowfish'', ``Bluefish'', ``Charter or party boat or charter/
party boat'', ``Conger eels'', ``Cunner'', ``Dogfish'', ``Exempted 
gear'', ``Fourspot flounder'', ``Hagfish'', ``Handgear'', ``Handline or 
handline gear'', ``Hickory shad'', ``John Dory'', ``Longhorn sculpin'', 
``Mullet'', ``Multispecies Monitoring Committee'', ``Prior to leaving 
port'', ``Rod and reel'', ``Scup'', ``Sea raven'', ``Searobin'', ``Sink 
gillnet or bottom-trawling gillnet'', ``Skate'', ``Spot'', ``Summer 
flounder'', ``Swordfish'', ``Target Total Allowable Catch (TAC)'', 
``Tautog'', ``Tilefish'', ``Upon returning to port'', and ``Weakfish'' 
are added, in alphabetical order; and the definitions for ``DAS 
(Day(s)-at-sea)'', and ``Out of the multispecies fishery or DAS 
program'' are revised to read as follows:


Sec. 651.2  Definitions.

* * * * *
    Alewife means Alosa pseudoharengus.
* * * * *
    American shad means Alosa sapidissima.
    Atlantic croaker means Micropogonias undulatus.
* * * * *
    Black sea bass means Centropristis striata.
    Blowfish (puffer) means any species in the family Tetraodontidae.

[[Page 27732]]

    Bluefish means Pomatomus saltatrix.
* * * * *
    Charter or party boat or charter/party boat means any vessel 
carrying passengers for hire to engage in recreational fishing and that 
is not fishing under a DAS.
* * * * *
    Conger eels means Conger oceanicus.
* * * * *
    Cunner means Tautogolabrus adspersus.
    DAS (Day(s)-at-sea) means the 24-hour periods of time during which 
a fishing vessel is absent from port in which the vessel intends to 
fish for, possess or land, or fishes for, possesses, or lands regulated 
species.
* * * * *
    Dogfish means spiny dogfish, Squalus acanthias, or smooth dogfish, 
Mustelus canis.
* * * * *
    Exempted gear means gear that is deemed to be not capable of 
catching multispecies finfish and includes: Pelagic hook and line, 
pelagic longline, spears, rakes, diving gear, cast nets, tongs, 
harpoons, weirs, dipnets, stop nets, pound nets, pelagic gillnets, pots 
and traps, purse seines, shrimp trawls (with a properly configured 
grate as defined under this part), and mid-water trawls.
* * * * *
    Fourspot flounder means Paralichthys oblongus.
* * * * *
    Hagfish means Myxine glutinosa.
    Handgear means handline or rod and reel gear.
    Handline or handline gear means fishing gear that is released by 
hand and consists of one main line to which is attached up to two 
leaders for a total of not more than three hooks. Handlines are 
retrieved only by hand, not by mechanical means.
* * * * *
    Hickory shad means Alosa mediocris.
* * * * *
    John Dory means Zenopsis conchifera.
* * * * *
    Longhorn sculpin means Myoxocephalus octodecimspinosus.
* * * * *
    Mullet means any species in the family Mugilidae.
* * * * *
    Multispecies Monitoring Committee means a team of scientific and 
technical staff appointed by the Council to review, analyze, and 
recommend adjustments to the management measures. The team will consist 
of staff from the New England and Mid-Atlantic Fishery Management 
Councils, the NMFS Northeast Regional Office, the NEFSC, the U.S. Coast 
Guard, an industry representative, and up to two representatives from 
each affected coastal state appointed by the Atlantic States Marine 
Fisheries Commission.
* * * * *
    Out of the multispecies fishery or DAS program means the period of 
time during which a vessel is absent from port and is not fishing for 
regulated species under the multispecies DAS program.
* * * * *
    Prior to leaving port, for purposes of the notification systems 
described in Sec. 651.29, means prior to departing from the last dock 
or mooring in port to engage in fishing, including the transport of 
fish to another port.
* * * * *
    Rod and reel means a hand-held (including rod holder) fishing rod 
with a manually operated reel attached.
* * * * *
    Scup means Stenotomus chrysops.
    Sea raven means Hemitripterus americanus.
    Searobin means any species in the family Triglidae.
    Sink gillnet or bottom-tending gillnet means any gillnet, anchored 
or otherwise, that is designed to be, or is fished on or near the 
bottom in the lower third of the water column.
    Skate means any species in the family Rajidae.
    Spot means Leiostomus xanthurus.
* * * * *
    Summer flounder means Paralichthys dentatus.
    Swordfish means Xiphias gladius.
    Target Total Allowable Catch (TAC) means the annual domestic 
harvest targets for regulated species.
    Tautog (blackfish) means Tautoga onitis.
* * * * *
    Tilefish means Lopholatilus chamaeleonticeps.
* * * * *
    Upon returning to port, for purposes of the call-in notification 
system, means the first point when a vessel ties up at a dock or 
mooring in a port at the end of a fishing trip.
* * * * *
    Weakfish means Cynoscion regalis.
* * * * *
    3. In Sec. 651.4, paragraphs (a), (b), (c), (e), (f), (h)(1)(ii), 
(h)(1)(iii), and (q) are revised to read as follows:


Sec. 651.4  Vessel permits.

* * * * *
    (a) General. Any vessel of the United States, including a charter 
or party boat, must have been issued and have on board a valid Federal 
multispecies permit issued under this part to fish for, possess or land 
multispecies finfish in or from the EEZ. Recreational vessels and 
vessels fishing for multispecies exclusively in state waters are exempt 
from this requirement.
    (b) Limited access permits--(1) Eligibility--(i) Limited access 
multispecies permit. To be eligible for a multispecies limited access 
permit, specified in Sec. 651.22, in 1996 and thereafter, a vessel must 
have been issued a limited access multispecies permit for the preceding 
year, must be replacing a vessel that was issued a limited access 
multispecies permit for the preceding year, or must qualify for a 1996 
limited access multispecies permit under paragraph (b)(1)(ii) of this 
section.
    (ii) Limited access Hook-Gear permit. A vessel issued a 1995 open 
access Hook-Gear permit may apply for and obtain a 1996 limited access 
Hook-Gear permit provided it meets the criteria for eligibility 
described below. Vessels must apply for a limited access Hook-Gear 
permit before September 1, 1996, to receive an automatic mailing of an 
application to renew their permit in 1997 and to be ensured that their 
permit application will be processed within the 30 days allowed under 
paragraph (e) of this section. Vessels applying after December 31, 
1996, will be ineligible to apply for a 1997 limited access Hook-Gear 
permit. A vessel qualifying for a limited access Hook-Gear permit may 
not change its limited access permit category. The criteria for 
eligibility are as follows:
    (A) The vessel held a 1995 open access Hook-Gear permit and 
submitted to the Regional Director, no later than January 26, 1996, 
fishing log reports dated between June 1, 1994 and June 1, 1995, when 
fishing with hook gear under the open access Hook-Gear permit, 
documenting landings of at least 500 lb (226.8 kg) of multispecies 
finfish; or its equivalent in numbers of fish; or
    (B) The vessel is replacing a vessel that meets the criteria set 
forth in paragraph (b)(1)(ii)(A) of this section.
    (2) Qualification restriction. Unless the Regional Director 
determines to the contrary, no more than one vessel may qualify, at any 
one time, for a limited access multispecies permit based on that or 
another vessel's fishing and permit history. If more than one vessel 
owner claims eligibility for a limited access multispecies permit, 
based on one vessel's fishing and permit history, the Regional Director 
shall determine who is entitled to qualify for the limited access 
multispecies permit and the DAS

[[Page 27733]]

allocation according to paragraph (b)(3) of this section.
    (3) Change in ownership. The fishing and permit history of a vessel 
is presumed to transfer with the vessel whenever it is bought, sold, or 
otherwise transferred, unless there is a written agreement, signed by 
the transferor/seller and transferee/buyer, or other credible written 
evidence, verifying that the transferor/seller is retaining the 
vessel's fishing and permit history for purposes of replacing the 
vessel.
    (4) Replacement vessels. To be eligible for a limited access permit 
under this section, the replacement vessel must meet the following 
criteria and any applicable criteria under paragraph (b)(5) of this 
section:
    (i) The replacement vessel's horsepower may not exceed by more than 
20 percent the horsepower of the vessel that was initially issued a 
limited access multispecies permit as of the date the initial vessel 
applied for such permit.
    (ii) The replacement vessel's length, gross registered tonnage, and 
net tonnage may not exceed by more than 10 percent the length, gross 
registered tonnage, and net tonnage of the vessel that was initially 
issued a limited access multispecies permit as of the date the initial 
vessel applied for such permit. For purposes of this paragraph, a 
vessel not required to be documented under title 46, U.S.C. will be 
considered to be 5 net tons. For undocumented vessels, gross registered 
tonnage does not apply.
    (5) Upgraded vessel. To remain eligible to retain a valid limited 
access permit under this part, or to apply for or renew a limited 
access permit under this part, a vessel may be upgraded, whether 
through refitting or replacement, only if the upgrade complies with the 
following limitations:
    (i) The vessel's horsepower may be increased, whether through 
refitting or replacement, only once. Such an increase may not exceed 20 
percent of the horsepower of the vessel initially issued a limited 
access multispecies permit as of the date the initial vessel applied 
for such permit.
    (ii) The vessel's length, gross registered tonnage, and net tonnage 
may be upgraded, whether through refitting or replacement, only once. 
Such an increase shall not exceed 10 percent each of the length, gross 
registered tonnage, and net tonnage of the vessel initially issued a 
limited access multispecies permit as of the date the initial vessel 
applied for such permit. This limitation allows only one upgrade, at 
which time any or all three specifications of vessel size may be 
increased. This type of upgrade may be done separately from an engine 
horsepower upgrade.
    (6) Consolidation restriction. Limited access permits under this 
permit and DAS allocations may not be combined or consolidated.
    (7) Appeal of denial of limited access multispecies permit.
    (i) Any applicant eligible to apply for an initial limited access 
Hook-Gear permit who is denied such permit may appeal the denial to the 
Regional Director within 30 days of the notice of denial. Any such 
appeal must be based on one or more of the following grounds, must be 
in writing, and must state the grounds for the appeal:
    (A) The information used by the Regional Director was based on 
mistaken or incorrect data;
    (B) The applicant was prevented by circumstances beyond his/her 
control from meeting relevant criteria; or
    (C) The applicant has new or additional information.
    (ii) The Regional Director will appoint a designee who will make 
the initial decision on the appeal.
    (iii) The appellant may request a review of the initial decision by 
the Regional Director by so requesting in writing within 30 days of the 
notice of the initial decision. If the appellant does not request a 
review of the initial decision within 30 days, the initial decision 
shall become the final administrative action of the Department of 
Commerce.
    (iv) Upon receiving the findings and a recommendation, the Regional 
Director will issue a final decision on the appeal. The Regional 
Director's decision is the final administrative action of the 
Department of Commerce.
    (v) Status of vessels pending appeal of a limited access permit 
denial. A vessel denied a limited access Hook-Gear permit may fish 
under the limited access Hook-Gear category, provided that the denial 
has been appealed, the appeal is pending, and the vessel has on board a 
letter from the Regional Director authorizing the vessel to fish under 
the limited access Hook-Gear category. The Regional Director will issue 
such a letter for the pendency of any appeal. Any such decision is the 
final administrative action of the Department of Commerce on allowable 
fishing activity pending a final decision on the appeal. The 
authorizing letter must be carried on board the vessel. If the appeal 
is finally denied, the Regional Director shall send a notice of final 
denial to the vessel owner; the authorizing letter becomes invalid 5 
days after receipt of the notice of denial.
    (8) Limited access permit restrictions. (i) A vessel may be issued 
a limited access multispecies permit in only one category during a 
fishing year. Vessels are prohibited from changing limited access 
multispecies permit categories during the fishing year, except as 
provided in paragraph (f)(3) of this section. A vessel issued a limited 
access Hook-Gear permit may not change its limited access permit 
category at any time.
    (ii) With the exception of Combination Vessels, sea scallop dredge 
vessels are prohibited from being issued a limited access multispecies 
permits.
    (9) Confirmation of Permit History. Notwithstanding any other 
provisions of this part, a person who does not currently own a fishing 
vessel, but who has owned a qualifying vessel that has sunk, been 
destroyed, or transferred to another person, may apply for and receive 
a Confirmation of Permit History if the fishing and permit history of 
such vessel has been retained lawfully by the applicant. To be eligible 
to obtain a Confirmation of Permit History, the applicant must show 
that the qualifying vessel meets the eligibility requirements, as 
applicable, in this part. Issuance of a valid and current Confirmation 
of Permit History preserves the eligibility of the applicant to apply 
for or renew a limited access multispecies permit for a replacement 
vessel based on the qualifying vessel's fishing and permit history at a 
subsequent time, subject to the replacement provisions specified at 
Sec. 651.4. A Confirmation of Permit History must be applied for and 
received on an annual basis in order for the applicant to preserve the 
fishing rights and limited access eligibility of the qualifying vessel. 
If fishing privileges have been assigned or allocated previously under 
this part based on the qualifying vessel's fishing and permit history, 
the Confirmation of Permit History also preserves such fishing 
privileges. Any decision regarding the issuance of a Confirmation of 
Permit History for a qualifying vessel that has applied for or been 
issued previously a limited access permit under this part is a final 
agency action subject to judicial review under 5 U.S.C. 704. 
Applications for a Confirmation of Permit History must be received by 
the Regional Director by the beginning of the fishing year for which 
the Confirmation of Permit History is required. Information 
requirements for the Confirmation of Permit History application shall 
be the same as those for a limited access permit with any request for 
information about the vessel being applicable to the qualifying vessel

[[Page 27734]]

that has been sunk, destroyed or transferred. Vessel permit applicants 
who have been issued a Confirmation of Permit History and who wish to 
obtain a vessel permit for a replacement vessel based upon the previous 
vessel history may do so pursuant to paragraph (b)(4) of this section.
    (c) Open access permits. Subject to the restrictions in 
Sec. 651.33, a U. S. vessel that has not been issued a limited access 
multispecies permit may obtain an open access Handgear or Charter/party 
permit. Vessels that are issued a valid scallop limited access permit 
under Sec. 650.4 of this chapter and that have not been issued a 
limited access multispecies permit may obtain an open access Scallop 
Multispecies Possession Limit permit.
* * * * *
    (e) Vessel permit application. Applicants for a permit under this 
section must submit a completed application on an appropriate form 
obtained from the Regional Director. The application must be signed by 
the owner of the vessel, or the owner's authorized representative, and 
be submitted to the Regional Director at least 30 days before the date 
on which the applicant desires to have the permit made effective. The 
Regional Director will notify the applicant of any deficiency in the 
application pursuant to this section. Applicants for limited access 
multispecies permits shall provide information with the application 
sufficient for the Regional Director to determine whether the vessel 
meets the eligibility requirements specified.
    (f) Information requirements. (1) In addition to applicable 
information required to be provided by paragraph (e) of this section, 
an application for a permit must contain at least the following 
information, and any other information required by the Regional 
Director: Vessel name; owner name, mailing address, and telephone 
number; U.S. Coast Guard documentation number and a copy of the 
vessel's current U.S. Coast Guard documentation or, if undocumented, 
state registration number and a copy of the current state registration; 
party/charter boat license; home port and principal port of landing; 
length overall; gross tonnage; net tonnage; engine horsepower; year the 
vessel was built; type of construction; type of propulsion; approximate 
fish-hold capacity; type of fishing gear used by the vessel; number of 
crew; number of party or charter passengers licensed to carry (if 
applicable); permit category; if the owner is a corporation, a copy of 
the current Certificate of Incorporation, or other corporate papers 
showing incorporation and the names of the current officers in the 
Corporation, and the names and addresses of all shareholders owning 25 
percent or more of the corporation's shares; if the owner is a 
partnership, a copy of the current Partnership Agreement and the names 
and addresses of all partners; if there is more than one owner, names 
of all owners owning a 25 percent interest or more; and, name and 
signature of the owner or the owner's authorized representative.
    (2) Applications for an initial limited access Hook-Gear permit 
must also contain the following information:
    (i) If the engine horsepower was changed or a contract to change 
the engine horsepower had been entered into prior to May 1, 1996, such 
that it is different from that stated in the vessel's most recent 
application for a Federal Fisheries Permit before May 1, 1996, 
sufficient documentation to ascertain the different engine horsepower. 
However, the engine replacement must be completed within 1 year of the 
date of when the contract for the replacement engine was signed.
    (ii) If the length, gross tonnage, or net tonnage was changed or a 
contract to change the length, gross tonnage or net tonnage had been 
entered into prior to May 1, 1996, such that it is different from that 
stated in the vessel's most recent application for a Federal Fisheries 
Permit, sufficient documentation to ascertain the different length, 
gross tonnage or net tonnage. However, the upgrade must be completed 
within 1 year from the date when the contract for the upgrade was 
signed.
    (3) A vessel issued a limited access multispecies permit may 
request a change in permit category, unless otherwise restricted by 
paragraph (b)(8) of this section. In 1996, the vessel owner, or the 
owner's authorized representative, has one opportunity to request a 
change in permit category by submitting an application to the Regional 
Director by July 15, 1996. After this date, the vessel must fish only 
in the DAS program assigned for the remainder of the 1996 fishing year 
and must comply with the restrictions applicable to such category. Any 
DAS that a vessel uses prior to a change in permit category will be 
counted against its allocation received under any subsequent permit 
category. For 1997 and beyond, limited access multispecies vessels 
eligible to request a change in permit category must elect a category 
prior to the start of each fishing year and will have one opportunity 
to request a change in permit category by submitting an application to 
the Regional Director within 45 days of receipt of their permit. After 
this date, the vessel must fish only in the DAS program assigned for 
the remainder of the fishing year and must comply with the restrictions 
applicable to such category. Any DAS that a vessel uses prior to a 
change in permit category will be counted against its allocation 
received under any subsequent permit category. A vessel issued an open 
access permit may request a different open access permit category by 
submitting an application to the Regional Director at any time.
    (4) A vessel issued a limited access combination permit or an 
Individual DAS permit or a vessel applicant who elects to use a VTS 
unit, is required to submit a copy of the vendor installation receipt 
from a NMFS-certified VTS vendor as described in Sec. 651.28(a).
* * * * *
    (h) * * *
    (1) * * *
    (ii) The application was not received by the Regional Director by 
the deadlines set forth in paragraphs (b)(1)(ii), and (q) of this 
section; or
    (iii) The applicant and applicant's vessel failed to meet all 
eligibility requirements described in paragraph (b)(1) of this section; 
or
* * * * *
    (q) Limited access multispecies permit renewal. To renew or apply 
for a limited access multispecies permit a completed application must 
be received by the Regional Director by the first day of the fishing 
year for which the permit is required. Failure to renew a limited 
access multispecies permit in any year bars the renewal of the permit 
in subsequent years.
* * * * *
    4. Section 651.9 is revised to read as follows:


Sec. 651.9  Prohibitions.

    (a) In addition to the general prohibitions specified in Sec. 620.7 
of this chapter, it is unlawful for any person owning or operating a 
vessel issued a valid Federal multispecies vessel permit under this 
part, a permit under Sec. 651.5 or a letter under Sec. 651.4(b)(7)(v), 
to do any of the following:
    (1) Fail to report to the Regional Director within 15 days any 
change in the information contained in the permit application as 
required under Sec. 651.4(m) or Sec. 651.5(k).
    (2) Fish for, possess, or land multispecies finfish unless the 
operator of the vessel has been issued an operator's permit under 
Sec. 651.5, and a valid permit is on board the vessel.
    (3) Sell, barter, trade, or transfer, or attempt to sell, barter, 
trade, or

[[Page 27735]]

otherwise transfer, for a commercial purpose, other than transport, any 
multispecies, unless the dealer or transferee has a dealer permit 
issued under Sec. 651.6.
    (4) Fail to comply in an accurate and timely fashion with the log 
report, reporting, record retention, inspection, and other requirements 
of Sec. 651.7(b).
    (5) Fail to affix and maintain permanent markings as required by 
Sec. 651.8.
    (6) Enter, fail to remove gear from, or be in the areas described 
in Sec. 651.21(f)(1) through Sec. 651.21(h)(1) during the time period 
specified, except as provided in Sec. 651.21(d), (f)(2), (g)(2), and 
(h)(2).
    (7) Possess or land multispecies finfish smaller than the minimum 
sizes specified in Sec. 651.23 or Sec. 651.34, as appropriate.
    (8) Land, or possess on board a vessel, more than the possession 
limits specified in Sec. 651.27(a), or violate any of the other 
provisions of Sec. 651.27.
    (9) Land, offload, remove, or otherwise transfer, or attempt to 
land, offload, remove, or otherwise transfer fish from one vessel to 
another vessel or other floating conveyance unless authorized in 
writing by the Regional Director pursuant to Sec. 651.30(a).
    (10) Refuse or fail to carry an observer if requested to do so by 
the Regional Director.
    (11) Interfere with or bar by command, impediment, threat, 
coercion, or refusal of reasonable assistance, an observer conducting 
his or her duties aboard a vessel.
    (12) Fail to provide an observer with the required food, 
accommodations, access, and assistance, specified in Sec. 651.31.
    (b) In addition to the prohibitions specified in paragraph (a) of 
this section, it is unlawful for any person owning or operating a 
vessel issued a valid limited access multispecies permit under 
Sec. 651.4(b) or a letter under Sec. 651.4(b)(7)(v), to do any of the 
following:
    (1) Fish for, possess, or land multispecies finfish with or from a 
vessel that has had the horsepower of such vessel or its replacement 
upgraded or increased in excess of the limitations specified in 
Sec. 651.4(b)(4) or (b)(5).
    (2) Fish for, possess, or land multispecies finfish with or from a 
vessel that has had the length, gross registered tonnage, or net 
tonnage of such vessel or its replacement increased or upgraded in 
excess of limitations specified in Sec. 651.4(b)(4) or (b)(5).
    (3) Combine, transfer, or consolidate DAS allocations.
    (4) Fish for, possess at any time during a trip, or land per trip 
more than the possession limit of regulated species specified in 
Sec. 651.27(b) after using up the vessel's annual DAS allocation or 
when not participating under the DAS program pursuant to Sec. 651.22, 
unless otherwise exempted under Sec. 651.22(b)(3) or Sec. 651.34.
    (5) Possess or land per trip more than the possession limit 
specified under Sec. 651.22(b)(3)(i) if the vessel has been issued a 
limited access Small Vessel permit.
    (6) Fail to comply with the restrictions on fishing and gear 
specified in Sec. 651.22(b)(4) if the vessel has been issued a limited 
access Hook-Gear permit.
    (7) Fail to declare and be out of the multispecies fishery as 
required by Sec. 651.22(g), using the procedure described under 
Sec. 651.22(h), as applicable.
    (8) If required to have a VTS unit specified in Sec. 651.28(a) or 
Sec. 651.29(a):
    (i) Fail to have a certified, operational, and functioning VTS unit 
that meets the specifications of Sec. 651.28(a) on board the vessel at 
all times.
    (ii) Fail to comply with the notification, replacement, or any 
other requirements regarding VTS usage specified in Sec. 651.29(a).
    (9) Fail to comply with any requirement regarding the DAS 
notification specified in Sec. 651.29(a) or (b).
    (10) Fail to comply with other notification requirements, including 
a call-in system specified in Sec. 651.29(c), if required by the 
Regional Director.
    (11) Fail to provide notification of the beginning or ending of a 
trip, as required under Sec. 651.29(b) and (d).
    (c) In addition to the prohibitions specified in paragraph (a) of 
this section, it is unlawful for any person owning or operating a 
vessel issued a Handgear permit under Sec. 651.4(c) to do any of the 
following:
    (1) Possess at any time during a trip, or land per trip, more than 
the possession limit of regulated species specified in Sec. 651.33(a), 
unless the regulated species were harvested by a charter or party 
vessel.
    (2) Use, or possess on board, gear capable of harvesting 
multispecies finfish other than rod and reel or handline while in 
possession of, or fishing for, multispecies finfish.
    (3) Possess or land multispecies finfish during the time period 
specified in Sec. 651.33(a)(2).
    (4) Violate any of the provisions of Sec. 651.33(a).
    (d) In addition to the prohibitions specified in paragraph (a) of 
this section, it is unlawful for any person owning or operating a 
vessel issued a Scallop Multispecies Possession Limit permit under 
Sec. 651.4(c) to do any of the following:
    (1) Possess or land more than the possession limit of regulated 
species specified in Sec. 651.33(c).
    (2) Possess or land regulated species when not fishing under a 
scallop DAS.
    (3) Violate any of the provisions of Sec. 651.33(c).
    (e) In addition to the general prohibitions specified in Sec. 620.7 
of this chapter and the prohibitions specified in paragraphs (a) 
through (d) of this section, it is unlawful for any person to do any of 
the following:
    (1) Fish for, possess, or land multispecies finfish unless:
    (i) The multispecies finfish were being fished for or harvested by 
a vessel issued a valid Federal multispecies permit under this part, or 
a letter under Sec. 651.4(b)(7)(v), and the operator aboard such vessel 
was issued an operator's permit under Sec. 651.5 and a valid permit is 
on board the vessel;
    (ii) The multispecies finfish were harvested by a vessel not issued 
a Federal multispecies permit that fishes for and possesses 
multispecies finfish exclusively in state waters; or
    (iii) The multispecies finfish were harvested by a recreational 
fishing vessel.
    (2) Sell, barter, trade, or otherwise transfer, or attempt to sell, 
barter, trade, or otherwise transfer, for a commercial purpose, any 
multispecies finfish from a trip unless the vessel is issued a valid 
Federal multispecies permit under this part, or a letter under 
Sec. 651.4(b)(7)(v), and is not fishing under the charter/party 
restrictions specified in Sec. 651.34(d), or unless the multispecies 
finfish were harvested by a vessel that qualifies for the exception 
specified in paragraph (e)(1)(ii) of this section.
    (3) To be or act as an operator of a vessel fishing for or 
possessing multispecies finfish in or from the EEZ, or issued a Federal 
multispecies permit under this part, without having been issued and 
possessing a valid operator's permit issued under Sec. 651.5.
    (4) Purchase, possess, or receive for a commercial purpose, or 
attempt to purchase, possess, or receive for a commercial purpose in 
the capacity of a dealer, multispecies finfish taken from a fishing 
vessel, unless in possession of a valid dealer permit issued under 
Sec. 651.6; except that this prohibition does not apply to multispecies 
finfish taken from a vessel that qualifies for the exception specified 
in paragraph (e)(1)(ii) of this section.

[[Page 27736]]

    (5) Purchase, possess, or receive for a commercial purpose or 
attempt to purchase, possess, or receive multispecies finfish caught by 
a vessel other than one issued a valid Federal multispecies permit 
under this part, or a letter under Sec. 651.4(b)(7)(v), unless the 
multispecies finfish were harvested by a vessel that qualifies for the 
exception specified in paragraph (e)(1)(ii) of this section.
    (6) Land, offload, cause to be offloaded, sell, or transfer; or 
attempt to land, offload, cause to be offloaded, sell, or transfer 
multispecies finfish from a fishing vessel, whether on land or at sea, 
as an owner or operator without accurately preparing and submitting, in 
a timely fashion, the documents required by Sec. 651.7, unless the 
multispecies finfish were harvested by a vessel that qualifies for the 
exception specified in paragraph (e)(1)(ii) of this section.
    (7) Purchase or receive multispecies finfish, or attempt to 
purchase or receive multispecies finfish, whether on land or at sea, as 
a dealer without accurately preparing, submitting in a timely fashion, 
and retaining the documents required by Sec. 651.7.
    (8) Possess or land fish caught with nets of mesh smaller than the 
minimum size specified in Sec. 651.20 of this chapter, or with scallop 
dredge gear, unless said fish are caught, possessed or landed in 
accordance with Sec. 651.20, or unless the vessel qualifies for the 
exception specified in paragraph (e)(1)(ii) of this section.
    (9) Fish with, use, or have on board, within the area described in 
Sec. 651.20(a)(1) nets of mesh size smaller than the minimum mesh size 
specified in Sec. 651.20(a)(2), except as provided in Sec. 651.20 
(a)(3) through (a)(6), (a)(8), (a)(9), (e), (f), and (j), or unless the 
vessel qualifies for the exception specified in paragraph (e)(1)(ii) of 
this section.
    (10) Fish for, harvest, possess, or land in or from the EEZ 
northern shrimp, unless such shrimp were fished for or harvested by a 
vessel meeting the requirements specified in Sec. 651.20(a)(3).
    (11) Fish within the areas described in Sec. 651.20(a)(4) with nets 
of mesh smaller than the minimum size specified in Sec. 651.20(a)(2), 
unless the vessel is issued and possesses on board the vessel an 
authorizing letter issued under Sec. 651.20(a)(4)(i).
    (12) Violate any provisions of the Cultivator Shoals Whiting 
Fishery specified in Sec. 651.20(a)(4).
    (13) Fail to comply with the gear restrictions for the Stellwagen 
Bank/Jeffrey's Ledge juvenile protection areas specified in 
Sec. 651.20(a)(5).
    (14) Fail to comply with the gear restrictions and time periods 
specified for Small Mesh Area 1 and Small Mesh Area 2 in 
Sec. 651.20(a)(8).
    (15) Fail to comply with the requirements of the Nantucket Shoals 
dogfish exemption specified in Sec. 651.20(a)(9).
    (16) Fish with, use, or have available for immediate use within the 
area described in Sec. 651.20(c)(1) nets of mesh size smaller than the 
minimum size specified in Sec. 651.20(c)(2), except as provided in 
Sec. 651.20(c)(3), (e), (f), and (j), or unless the vessel qualifies 
for the exception specified in paragraph (e)(1)(ii) of this section.
    (17) Fish with, use, or have available for immediate use within the 
area described in Sec. 651.20(d)(1) nets of mesh size smaller than the 
minimum size specified in Sec. 651.20(d)(2), except as provided in 
Sec. 651.20 (e), (f), and (j), or unless the vessel qualifies for the 
exception specified in paragraph (e)(1)(ii) of this section.
    (18) Fish for the species specified in Sec. 651.20 (e) or (f) with 
a net of mesh size smaller than the applicable mesh size specified in 
Sec. 651.20(a)(2), (c)(2) or (d)(2), or possess or land such species, 
unless the vessel is in compliance with the requirements specified in 
Sec. 651.20(e) or (f), or unless the vessel qualifies for the exception 
specified in paragraph (e)(1)(ii) of this section.
    (19) Obstruct or constrict a net as described in Sec. 651.20 (h)(1) 
and (h)(2).
    (20) Fish for, land, or possess multispecies finfish harvested by 
means of pair trawling or with pair trawl gear, except under the 
provisions of Sec. 651.20(e), or unless the vessels that engaged in 
pair trawling qualify for the exception specified in paragraph 
(e)(1)(ii) of this section.
    (21) Violate any of the restrictions on fishing with scallop dredge 
gear specified in Sec. 651.20(i), or any of the other provisions of 
Sec. 651.20(i).
    (22) Violate any of the provisions of the state waters winder 
flounder exemption program specified in Sec. 651.20(j).
    (23) Enter or be in the area described in Sec. 651.21(a)(1) on a 
fishing vessel, except as provided in Sec. 651.21(a)(2) and (d).
    (24) Enter or be in the area described in Sec. 651.21(b)(1) on a 
fishing vessel, except as provided in Sec. 651.21(b)(2).
    (25) Enter or be in the area described in Sec. 651.21(c)(1), on a 
fishing vessel, except as provided in Sec. 651.21(c)(2) and (d).
    (26) Enter or be on a fishing vessel, or fail to remove gear from 
the EEZ portion of the areas described in Sec. 651.21(f)(1) through 
Sec. 651.21(h)(1), during the time period specified, except as provided 
in Sec. 651.21(d), (f)(2), (g)(2), and (h)(2).
    (27) Import, export, transfer, land, buy, sell or possess regulated 
species smaller than the minimum sizes specified in Sec. 651.23, or 
attempt to do any of the same, unless the regulated species were 
harvested from a vessel that qualifies for the exception specified in 
paragraph (e)(1)(ii) of this section.
    (28) Violate any terms of a letter authorizing experimental fishing 
pursuant to Sec. 651.24 or fail to keep such letter on board the vessel 
during the period of the experiment.
    (29) Fail to comply with the gear-marking requirements of 
Sec. 651.25.
    (30) Purchase, possess, or receive as a dealer, or in the capacity 
of a dealer, fish in excess of the possession limits specified for 
vessels issued a Federal multispecies permit.
    (31) Tamper with, damage, destroy, alter, or in any way distort, 
render useless, inoperative, ineffective, or inaccurate the VTS, VTS 
unit, or VTS signal required to be installed on or transmitted by 
vessel owners or operators required to use a VTS by this part.
    (32) Violate any provision of the DAS notification program as 
specified by Sec. 651.29.
    (33) Land, offload, remove, or otherwise transfer, or attempt to 
land, offload, remove or otherwise transfer multispecies finfish from 
one vessel to another vessel, unless both vessels qualify under the 
exception specified in paragraph (e)(1)(ii) of this section, or unless 
authorized in writing by the Regional Director pursuant to 
Sec. 651.30(a).
    (34) Assault, resist, oppose, impede, harass, intimidate, or 
interfere with a NMFS-approved observer aboard a vessel.
    (35) Make any false statement, oral or written, to an authorized 
officer or employee of NMFS, concerning the taking, catching, 
harvesting, landing, purchase, sale, or transfer of any multispecies 
finfish.
    (36) Make any false statement in connection with an application 
under Sec. 651.4 or Sec. 651.5 or on any report required to be 
submitted or maintained under Sec. 651.7.
    (37) Interfere with, obstruct, delay, or prevent by any means a 
lawful investigation or search relating to the enforcement of this 
part.
    (38) Fail to have on board the vessel at least one standard tote as 
specified under Sec. 651.20(i) and (j), Sec. 651.27, and Sec. 651.33(a) 
and (c).
    (f) In addition to the general prohibitions specified in Sec. 620.7 
of this chapter and the prohibitions specified

[[Page 27737]]

in paragraphs (a) through (e) of this section, it is unlawful for the 
owner or operator of a charter or party boat issued a permit under 
Sec. 651.4, or of a recreational vessel, as applicable, to:
    (1) Fish with gear in violation of the restrictions specified in 
Sec. 651.34(a).
    (2) Possess regulated species smaller than the minimum sizes 
specified in Sec. 651.34(b).
    (3) Possess cod and haddock in excess of the possession limits 
specified in Sec. 651.34(c).
    (4) Sell, trade, barter, or otherwise transfer, or attempt to sell, 
trade, barter or otherwise transfer, multispecies finfish for a 
commercial purpose as specified in Sec. 651.34(d).
    (g) It is unlawful to violate any other provision of this part, the 
Magnuson Act, or any regulation, permit or other authorization issued 
under the Magnuson Act.
    (h) Presumption. The possession for sale of regulated species that 
do not meet the minimum sizes as specified in Sec. 651.23 will be prima 
facie evidence that such regulated species were taken or imported in 
violation of these regulations. Evidence that such fish were harvested 
by a vessel not issued a permit under this part and fishing exclusively 
within state waters will be sufficient to rebut the presumption. This 
presumption does not apply to fish being sorted on deck.
    5. Section 651.10 is revised to read as follows:


Sec. 651.10   Facilitation of enforcement.

    (a) Radio hails. Permit holders, while underway, must be alert for 
communications conveying enforcement instructions and immediately 
answer via VHF-FM radio, channel 16, when hailed by an authorized 
officer. Vessels not required to have VHF-FM radios by the Coast Guard 
are exempt from this requirement.
    (b) Also see Sec. 620.8 of this chapter.
    6. In Sec. 651.20, paragraph (a)(9) is added and paragraphs (a)(2), 
(a)(3)(i)(B), (a)(4)(i)(E), (a)(5), (a)(6)(iii)(C), (a)(7), paragraph 
(a)(8) introductory text preceding the table, paragraphs (a)(8)(i), 
(a)(8)(iii)(B), (c)(1), (c)(2), (c)(3)(ii), (c)(5), (d), (e)(2), 
(f)(2), (g)(1), (g)(2), (i), (j) introductory text, and (j)(7) are 
revised to read as follows:


Sec. 651.20  Regulated mesh areas and restrictions on gear and methods 
of fishing.

* * * * *
    (a) * * *
    (2) Gear restrictions. (i) Except as provided in paragraphs 
(a)(2)(iii) and (j) of this section, and unless otherwise restricted 
under paragraphs (a)(2)(ii) and (a)(5) of this section, the minimum 
mesh size for any trawl net, sink gillnet, Scottish seine, mid-water 
trawl, or purse seine, on a vessel, or used by a vessel fishing under a 
DAS in the multispecies DAS program in the GOM/GB regulated mesh area, 
shall be 6 inches (15.24 cm) square or diamond mesh throughout the 
entire net. This restriction does not apply to nets or pieces of nets 
smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft (0.81 m \2\)), or 
to vessels that have not been issued a Federal multispecies permit 
under Sec. 651.4 and that are fishing exclusively in state waters.
    (ii) Large Mesh vessels. When fishing in the GOM/GB regulated mesh 
area, the minimum mesh size for any sink gillnet on a vessel, or used 
by a vessel, fishing under a DAS in the Large Mesh DAS programs 
specified in Sec. 651.22(b)(6) and (7) shall be 7 inch (17.78-cm) 
diamond mesh throughout the entire net. The minimum mesh size for any 
trawl net on a vessel, or used by a vessel, fishing under a DAS in the 
Large Mesh DAS program shall be 8-inch (20.32-cm) diamond mesh 
throughout the entire net. This restriction does not apply to nets or 
pieces of nets smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft 
(0.81 m \2\)), or to vessels that have not been issued a Federal 
multispecies permit under Sec. 651.4 and that are fishing exclusively 
in state waters.
    (iii) Other gear and mesh exemptions. The minimum mesh size for any 
trawl net, sink gillnet, Scottish seine, mid-water trawl, or purse 
seine, on a vessel, or used by a vessel, when not fishing under the 
multispecies DAS program and when fishing in the GOM/GB regulated mesh 
area, is provided for under the exemptions specified in paragraphs 
(a)(3), (a)(4), (a)(6), (a)(8), (a)(9), (e), (f), (i), and (j) of this 
section. Vessels that are not fishing in one of these exemption 
programs, or with exempted gear (as defined under this part), or under 
the Scallop state waters exemption program specified in Sec. 650.27 of 
this chapter, or under a multispecies DAS are prohibited from fishing 
in the GOM/GB regulated mesh area.
    (3) * * *
    (i) * * *
    (B) The following may be retained, with the restrictions noted, as 
allowable bycatch species in the northern shrimp fishery as described 
in this section: Longhorn sculpin; up to two standard totes of silver 
hake (whiting); monkfish and monkfish parts up to 10 percent by weight 
of all other species on board; and American lobster up to 10 percent by 
weight of all other species on board or 200 lobsters, whichever is 
less.
* * * * *
    (4) * * *
    (i) * * *
    (E) The following may be retained, with the restrictions noted, as 
allowable bycatch species in the Cultivator Shoal whiting fishery 
exemption area as described in this section: Longhorn sculpin; monkfish 
and monkfish parts up to 10 percent by weight of all other species on 
board; and American lobster up to 10 percent by weight of all other 
species on board or 200 lobsters, whichever is less.
* * * * *
    (5) Stellwagen Bank/Jeffreys Ledge (SB/JL) juvenile protection 
area. Except as provided in paragraphs (a)(3), (a)(6), (e), (f), and 
(j) of this section, unless otherwise restricted in paragraph 
(a)(2)(ii) of this section, the minimum mesh size for any trawl net, 
Scottish seine, purse seine, or midwater trawl in use, or available for 
immediate use as described under paragraph (c)(4) of this section, by a 
vessel fishing in the following area shall be 6 inches (15.24 cm) 
square mesh in the last 50 bars of the codend and extension piece for 
vessels 45 ft (13.7 m) in length and less, and in the last 100 bars of 
the codend and extension piece for vessels greater than 45 ft (13.7 cm) 
in length.
    (6) * * *
    (iii) * * *
    (C) Vessels may not fish for, possess on board, or land any species 
of fish except when fishing in the areas specified in paragraphs 
(a)(4), (a)(9), (c), and (d) of this section. Vessels may retain 
exempted small mesh species as provided in paragraphs (a)(4)(i), 
(a)(9)(i), (c)(3), and (d)(3) of this section.
    (7) Addition or deletion of exemptions. (i) An exemption may be 
added in an existing fishery for which there is sufficient data or 
information to ascertain the amount of regulated species bycatch, if 
the Regional Director, after consultation with the Council, determines 
that the percentage of regulated species caught as bycatch is, or can 
be reduced to, less than 5 percent by weight of total catch and that 
such exemption will not jeopardize fishing mortality objectives. In 
determining whether exempting a fishery may jeopardize meeting fishing 
mortality objectives, the Regional Director may take into consideration 
factors such as, but not limited to, juvenile mortality. A fishery can 
be defined, restricted or allowed by area, gear, season, or other means 
determined to be appropriate to reduce bycatch of regulated species. An 
existing exemption may be deleted or modified if the Regional Director 
determines that the catch of regulated species is equal to or greater 
than 5

[[Page 27738]]

percent by weight of total catch, or that continuing the exemption may 
jeopardize meeting fishing mortality objectives. Notification of 
additions, deletions or modifications will be made through publication 
of a rule in the Federal Register.
    (ii) The Council may recommend to the Regional Director, through 
the framework procedure specified in Sec. 651.40(b), additions or 
deletions to exemptions for fisheries either existing or proposed for 
which there may be insufficient data or information for the Regional 
Director to determine, without public comment, percentage catch of 
regulated species.
    (iii) The Regional Director may, using the process described in 
either paragraphs (a)(7)(i) or (ii) of this section, authorize an 
exemption to fish for, possess and land white hake by vessels using 
regulated mesh or hook gear. Determination of the percentage of 
regulated species caught in such fishery shall not include white hake.
    (iv) Exempted fisheries authorized under this paragraph are 
subject, at minimum, to the following restrictions:
    (A) With the exception of fisheries authorized under paragraph 
(a)(7)(iii) of this section, possession of regulated species will be 
prohibited.
    (B) Possession of monkfish or monkfish parts will be limited to 10 
percent by weight of all other species on board.
    (C) Possession of lobsters will be limited to 10 percent by weight 
of all other species on board or 200 lobsters, whichever is less.
    (D) Possession of skate or skate parts in the SNE regulated mesh 
area will be limited to 10 percent by weight of all other species on 
board.
    (8) Small Mesh Area 1/Small Mesh Area 2. Fisheries using nets of 
mesh smaller than the minimum size specified in paragraph (a)(2) of 
this section in subareas described as Small Mesh Area 1 and Small Mesh 
Area 2 of the Small Mesh Exemption Area as specified under paragraph 
(a)(3) of this section, and defined in this paragraph (a)(8), have been 
found to meet the exemption qualification requirements specified in 
paragraph (a)(7) of this section. Therefore, vessels subject to the 
mesh restrictions specified in paragraph (a)(2) of this section may 
fish with or possess nets of mesh smaller than the minimum size 
specified in paragraph (a)(2) of this section in these areas, if the 
vessel complies with the restrictions specified in paragraphs (a)(8)(i) 
through (iii) of this section. These subareas are defined by straight 
lines connecting the following points in the order stated (see Figure 4 
to part 651):
* * * * *
    (i) The fishing season is from July 15 through October 31 when 
fishing under the exemption in Small Mesh Area 1.
* * * * *
    (iii) * * *
    (B) Allowable bycatch. Vessels fishing for the exempted species 
identified in paragraph (a)(8)(iii)(A) of this section may also possess 
and land the following species, with the restrictions noted, as 
allowable bycatch species: Longhorn sculpin; monkfish and monkfish 
parts up to 10 percent by weight of all other species on board; and 
American lobster up to 10 percent by weight of all other species on 
board or 200 lobsters, whichever is less.
    (9) Nantucket Shoals dogfish fishery exemption area. The Nantucket 
Shoals dogfish fishery as defined in this part has been found to meet 
the exemption qualification requirements specified in paragraph (a)(7) 
of this section. Therefore, vessels subject to the mesh restrictions 
specified in paragraph (a)(2) of this section may fish with, use, or 
possess nets of mesh smaller than the minimum size specified in 
paragraph (a)(2) of this section in the Nantucket Shoals dogfish 
fishery exemption area, if the vessel complies with the requirements 
specified in paragraph (a)(9)(i) of this section. The Nantucket Shoals 
dogfish fishery exemption area is defined by straight lines connecting 
the following points in the order stated (see Figure 4 to part 651):

                 Nantucket Shoals Dogfish Exemption Area                
------------------------------------------------------------------------
             Point                     Latitude            Longitude    
------------------------------------------------------------------------
NS1............................  41 deg.45' N         70 deg.00' W.     
NS2............................  41 deg.45' N.        69 deg.20' W.     
NS3............................  41 deg.30' N.        69 deg.20' W.     
Cl1............................  41 deg.30' N.        69 deg.23' W.     
NS5............................  41 deg.26.5' N.      69 deg.20' W.     
NS6............................  40 deg.50' W.        69 deg.20' N.     
NS7............................  40 deg.50' W.        70 deg.00' N.     
NS1............................  41 deg.45' N         70 deg.00' W.     
------------------------------------------------------------------------

    (i) Requirements. Vessels authorized to fish in this fishery must 
have on board an authorizing letter issued by the Regional Director. 
Vessels are subject to the following conditions:
    (A) Authorized vessels may not fish for, possess on board or land 
any species of fish other than dogfish except as provided under 
paragraph (a)(9)(i)(D) of this section.
    (B) Authorized vessels may fish under this exemption during the 
season of June 1 through October 15.
    (C) When transiting the GOM/GB regulated mesh area as specified 
under paragraph (a)(1) of this section, any nets of mesh smaller than 
the regulated mesh size specified in paragraph (a)(2) of this section, 
must be stowed according to the provisions of paragraph (c)(4) of this 
section.
    (D) The following may be retained, with the restrictions noted, as 
allowable bycatch species in the Nantucket Shoals dogfish fishery 
exemption area as described in this section: Longhorn sculpin, up to 
two standard totes of silver hake (whiting); monkfish and monkfish 
parts up to 10 percent by weight of all other species on board; 
American lobster up to 10 percent by weight of all other species on 
board or 200 lobsters, whichever is less; and skate or skate parts up 
to 10 percent by weight of all other species on board.
    (E) Authorized vessels must comply with any additional gear 
restrictions specified in the authorization letter issued by the 
Regional Director.
    (ii) Sea Sampling. The Regional Director may conduct periodic sea 
sampling to determine if there is a need to change the area or season 
designation, and to evaluate the bycatch of regulated species.
* * * * *
    (c) Southern New England regulated mesh area. (1) Area definition. 
The Southern New England regulated mesh area is that area bounded on 
the east by straight lines connecting the following points in the order 
stated (see Figure 1 part 651):

                Southern New England Regulated Mesh Area                
------------------------------------------------------------------------
             Point                     Latitude            Longitude    
------------------------------------------------------------------------
G5.............................  41 deg.18.6' N.      66 deg.24.8' W.   
G6.............................  40 deg.55.5' N.      66 deg.38' W.     
G7.............................  40 deg.45.5' N.      68 deg.00' W.     
G8.............................  40 deg.37' N.        68 deg.00' W.     
G9.............................  40 deg.30.5' N.      69 deg.00' W.     
NL3............................  40 deg..7' N.        69 deg.00' W.     
NL2............................  40 deg.18.7' N.      69 deg.40' W.     
NL1............................  40 deg.50' N.        69 deg.40' W.     
G11............................  40 deg.50' N.        70 deg.00' W.     
G12............................  ...................  70 deg.00' W.\1\  
------------------------------------------------------------------------
\1\ Northward to its intersection with the shoreline of mainland        
  Massachusetts; and on the west by the eastern boundary of the Mid-    
  Atlantic regulated mesh area.                                         

    (2) Gear restrictions. (i) Minimum mesh restrictions. Except as 
provided in paragraphs (c)(2) (iii) and (j) of this section, and unless 
otherwise restricted under paragraph (c)(2)(ii) of this section, the 
minimum mesh size for any trawl net, sink gillnet, Scottish seine, 
purse seine or mid-water trawl, in use, or available for immediate use 
as described under paragraph (c)(4) of this section, by a vessel 
fishing under a DAS in the

[[Page 27739]]

multispecies DAS program in the Southern New England (SNE) regulated 
mesh area, shall be 6 inches (15.24 cm) square or diamond mesh 
throughout the entire net. This restriction does not apply to vessels 
that have not been issued a Federal multispecies permit under 
Sec. 651.4 and that are fishing exclusively in state waters.
    (ii) Large Mesh vessels. When fishing in the SNE regulated mesh 
area, the minimum mesh size for any sink gillnet on a vessel, or used 
by a vessel, fishing under a DAS in the Large Mesh DAS program 
specified in Sec. 651.22(b)(6) and (7) shall be 7 inch (17.78-cm) 
diamond mesh throughout the entire net. The minimum mesh size for any 
trawl net on a vessel, or used by a vessel, fishing under a DAS in the 
Large Mesh DAS program shall be 8 inch (20.32-cm) diamond mesh 
throughout the entire net. This restriction does not apply to nets or 
pieces of nets smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft 
(0.81 m \2\)), or to vessels that have not been issued a Federal 
multispecies permit under Sec. 651.4 and that are fishing exclusively 
in state waters.
    (iii) Other gear and mesh exemptions. The minimum mesh size for any 
trawl net, sink gillnet, Scottish seine, mid-water trawl, or purse 
seine, in use, or available for immediate use as described under 
paragraph (c)(4) of this section, by a vessel when not fishing under 
the multispecies DAS program and when fishing in the SNE regulated mesh 
area, is provided for under the exemptions specified in paragraphs 
(c)(3), (e), (f), (i), and (j) of this section. Vessels that are not 
fishing in one of these exemption programs, with exempted gear (as 
defined under this part), or under the Scallop state waters exemption 
program specified in Sec. 650.27 of this chapter, or under a 
multispecies DAS are prohibited from fishing in the SNE regulated mesh 
area.
    (3) * * *
    (ii) Possession and net stowage requirements. Vessels may possess 
regulated species while in possession of nets with mesh smaller than 
the minimum size specified in paragraph (c)(2)(i) of this section, 
provided that the nets are stowed and are not available for immediate 
use in accordance with paragraph (c)(4) of this section, and provided 
that regulated species were not harvested by nets of mesh size smaller 
than the minimum mesh size specified in paragraph (c)(2)(i) of this 
section. Vessels fishing for the exempted species identified in 
paragraph (c)(3)(i) of this section may also possess and retain the 
following species, with the restrictions noted, as incidental take to 
these exempted fisheries: Conger eels; searobins; black sea bass; red 
hake; tautog (blackfish); blowfish (puffer); cunner; John Dory; mullet; 
bluefish; tilefish; longhorn sculpin; fourspot flounder; alewife; 
hickory shad; American shad; blueback herring; sea ravens; Atlantic 
croaker; spot; swordfish; monkfish and monkfish parts up to 10 percent 
by weight of all other species on board; American lobster up to 10 
percent by weight of all other species on board or 200 lobsters, 
whichever is less; and skate and skate parts up to 10 percent by weight 
of all other species on board.
* * * * *
    (5) Addition or deletion of exemptions. An exemption may be added, 
deleted or modified pursuant to the procedure described in paragraph 
(a)(7) of this section.
    (d) Mid-Atlantic regulated mesh area. (1) Area definition. The Mid-
Atlantic (RMA) regulated mesh area is that area bounded on the east by 
a line running from the Rhode Island shoreline at 41 deg.18.2' N. and 
71 deg.51.5' W. (Watch Hill, RI) southwesterly through Fishers Island, 
NY, to Race Point, Fishers Island, NY, and from Race Point, Fishers 
Island, NY, southeasterly to the intersection of the 3 nautical mile 
line east of Montauk Point, southwesterly along the 3 nautical mile 
line to the intersection of 72 deg.30# W. Longitude and south along 
that line to the intersection of the outer boundary of the EEZ. (see 
Figure 1 to part 651).
    (2) Gear restrictions. (i) Mesh size restrictions. Except as 
provided in paragraph (j) of this section, and unless otherwise 
restricted under paragraph (d)(2)(ii) of this section, the minimum mesh 
size for any trawl net, sink gillnet, Scottish seine, purse seine or 
mid-water trawl, in use, or available for immediate use as described 
under paragraph (c)(4) of this section, by a vessel fishing under a DAS 
in the multispecies DAS program in the MA regulated mesh area shall be 
that specified in the summer flounder regulations at Sec. 625.24(a) of 
this chapter. This restriction does not apply to vessels that have not 
been issued a Federal multispecies permit under Sec. 651.4 and that are 
fishing exclusively in state waters.
    (ii) Large mesh vessels. When fishing in the MA regulated mesh 
area, the minimum mesh size for any sink gillnet on a vessel, or used 
by a vessel, fishing under a DAS in the Large Mesh DAS program 
specified in Sec. 651.22(b)(6) and (b)(7) shall be 7 inch (17.78 cm) 
diamond mesh throughout the entire net. The minimum mesh size for any 
trawl net on a vessel, or used by a vessel, fishing under a DAS in the 
Large Mesh DAS program shall be 8 inch (20.32 cm) diamond mesh 
throughout the net. This restriction does not apply to nets or pieces 
of nets smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft (0.81 m 
\2\)), or to vessels that have not been issued a Federal multispecies 
permit under Sec. 651.4 and that are fishing exclusively in state 
waters.
    (iii) Net stowage exemption. Vessels may possess regulated species 
while in possession of nets with mesh smaller than the minimum size 
specified in paragraph (d)(2)(i) of this section, provided that the 
nets are stowed and are not available for immediate use in accordance 
with paragraph (c)(4) of this section, and provided that regulated 
species were not harvested by nets of mesh size smaller than the 
minimum mesh size specified in paragraph (d)(2)(i) of this section.
    (3) Additional Exemptions. The Regional Director may, using the 
process described in either (a)(7)(i) or (a)(7)(ii), authorize an 
exemption to fish for, possess, or land white hake by vessels using 
regulated mesh or hook gear. Determination of the percentage of 
regulated species caught in such a fishery shall not include white 
hake.
    (e) * * *
    (2) When fishing under this exemption in the GOM/GB Regulated Mesh 
Area vessels must have on board an authorizing letter issued by the 
Regional Director;
* * * * *
    (f) * * *
    (2) When fishing under this exemption in the GOM/GB Regulated Mesh 
Area vessels must have on board an authorizing letter issued by the 
Regional Director;
* * * * *
    (g) Mesh measurements--(1) Gillnets. Beginning October 15, 1996, 
mesh size of gillnet gear shall be measured by lining up 5 consecutive 
knots perpendicular to the float line and, with a ruler or tape 
measure, measuring 10 consecutive stretched meshes on the diamond, 
inside knot to inside knot. The mesh size shall be the average of the 
measurements of the 10 consecutive meshes.
    (2) All other nets. With the exception of gillnets, mesh size shall 
be measured by a wedge-shaped gauge having a taper of 2 cm in 8 cm and 
a thickness of 2.3 mm, inserted into the meshes under a pressure or 
pull of 5 kg.
    (i) Square-mesh measurement. Square mesh in the regulated portion 
of the net shall be measured by placing the net gauge along the 
diagonal line that connects the largest opening between opposite 
corners of the square. The

[[Page 27740]]

square mesh size shall be the average of the measurements of 20 
consecutive adjacent meshes from the terminus forward along the long 
axis of the net. The square mesh shall be measured at least five meshes 
away from the lacings of the net.
    (ii) Diamond-mesh measurement. Diamond mesh in the regulated 
portion of the net shall be measured running parallel to the long axis 
of the net. The mesh size shall be the average of the measurements of 
any series of 20 consecutive meshes. The mesh shall be measured at 
least five meshes away from the lacings of the net.
* * * * *
    (i) Scallop vessels. (1) Except as provided in paragraph (i)(2) of 
this section, scallop vessels that possess a valid limited access 
permit under Sec. 650.4 of this chapter, and that a scallop 
multispecies possession limit permit under Sec. 650.4(c), and that are 
fishing under the scallop DAS program described in Sec. 650.24, may 
possess and land up to 300 lb (136.1 kg) of regulated species, unless 
otherwise restricted pursuant to Sec. 651.27(a)(2). Vessels subject to 
this possession limit shall have at least one standard tote on board.
    (2) Combination vessels, and scallop vessels not equipped with or 
fishing with dredge gear, fishing lawfully under a multispecies DAS are 
subject to the gear restrictions specified in Sec. 651.20 and may 
possess and land unlimited amounts of regulated species. Such vessels 
may simultaneously fish under a scallop DAS.
    (j) State waters winter flounder exemption. Any vessel issued a 
Federal limited access multispecies permit under this part may fish 
for, possess, or land winter flounder while fishing with nets of mesh 
smaller than the minimum size specified in paragraphs (a)(2), (c)(2), 
and (d)(2) of this section provided that:
* * * * *
    (7) The vessel, when not fishing under the DAS program, does not 
fish for, possess, or land more than 500 lb (226.8 kg) of winter 
flounder and, when subject to this possession limit, has at least one 
standard tote on board;
* * * * *
    7. In Sec. 651.21, paragraphs (a)(2)(i), (b)(2)(i), (c)(2)(i), (d) 
and (e) introductory text are revised, and paragraphs (f), (g), and (h) 
are added to read as follows:


Sec. 651.21  Closed areas.

    (a) * * *
    (2) * * *
    (i) Fishing with or using pot gear designed or used to take 
lobsters, or pot gear designed or used to take hagfish, and that have 
no other gear on board capable of catching multispecies finfish; and
* * * * *
    (b) * * *
    (2) * * *
    (i) Fishing with or using pot gear designed or used to take 
lobsters, or pot gear designed or used to take hagfish, and that have 
no other gear on board capable of catching multispecies finfish;
* * * * *
    (c) * * *
    (2) * * *
    (i) Fishing with or using pot gear designed and used to take 
lobsters, or pot gear designed and used to take hagfish, and that have 
no other gear on board capable of catching multispecies finfish;
* * * * *
    (d) Transiting. Vessels may transit Closed Area I, the Nantucket 
Lightship Closed Area, the Northeast Closure Area, the Mid-coast 
Closure Area, and the Massachusetts Bay Closure Area, as defined in 
paragraphs (a)(1), (c)(1), (f)(1), (g)(1), and (h)(1), respectively, of 
this section, provided that their gear is stowed in accordance with the 
provisions of paragraph (e) of this section.
    (e) Gear stowage requirements. Vessels transiting the closed areas 
must stow their gear as follows:
* * * * *
    (f) Northeast Closure Area. (1) During the period August 15 through 
September 13, no fishing vessel or person on a fishing vessel may 
enter, fish, or be, and no fishing gear capable of catching 
multispecies finfish, unless otherwise allowed in this part may be, in 
the area known as the Northeast Closure Area (Figure 3 to part 651), as 
defined by straight lines connecting the following points in the order 
stated, except as specified in paragraphs (d) and (f)(2) of this 
section:

------------------------------------------------------------------------
            Point                     Latitude             Longitude    
------------------------------------------------------------------------
NE1..........................  Maine shoreline.......  68 deg.55.0' W.  
NE2..........................  43 deg.29.6' N........  68 deg.55.0' W.  
NE3..........................  44 deg.04.4' N........  67 deg.48.7' W.  
NE4..........................  44 deg.06.9' N........  67 deg.52.8' W.  
NE5..........................  44 deg.31.2' N........  67 deg.02.7' W.  
NE6..........................  Maine shoreline.......  67 deg.02.7' W.  
------------------------------------------------------------------------

    (2) Exceptions. Paragraph (f)(1) of this section does not apply to 
persons on fishing vessels or fishing vessels:
    (i) That have not been issued a Federal multispecies permit under 
Sec. 651.4 and that are fishing exclusively in state waters.
    (ii) Fishing with or using exempted gear as defined under this 
part, excluding mid-water trawl gear, provided that there is no other 
gear on board capable of catching multispecies finfish. (iii) 
Classified as charter, party, or recreational.
    (g) Mid-coast Closure Area. (1) During the period November 1 
through December 31, no fishing vessel or person on a fishing vessel 
may enter, fish, or be, and no fishing gear capable of catching 
multispecies finfish unless otherwise allowed in this part may be, in 
the area known as the Mid-coast Closure Area (Figure 3 to part 651), as 
defined by straight lines connecting the following points in the order 
stated, except as specified in paragraphs (d) and (g)(2) of this 
section:

------------------------------------------------------------------------
            Point                     Latitude             Longitude    
------------------------------------------------------------------------
MC1..........................  42 deg.30' N..........  Massachusetts    
                                                        shoreline.      
MC2..........................  42 deg.30' N..........  70 deg.15' W.    
MC3..........................  42 deg.40' N..........  70 deg.15' W.    
MC4..........................  42 deg.40' N..........  70 deg.00' W.    
MC5..........................  43 deg.00' N..........  70 deg.00' W.    
MC6..........................  43 deg.00' N..........  69 deg.30' W.    
MC7..........................  43 deg.15' N..........  69 deg.30' W.    
MC8..........................  43 deg.15' N..........  69 deg.00' W.    
MC9..........................  Maine shoreline.......  69 deg.00' W.    
------------------------------------------------------------------------

    (2) Exceptions. Paragraph (g)(1) of this section does not apply to 
persons on fishing vessels or fishing vessels:
    (i) That have not been issued a Federal multispecies permit under 
Sec. 651.4 and that are fishing exclusively in state waters.
    (ii) Fishing with or using exempted gear as defined under this 
part, excluding mid-water trawl gear, provided that there is no other 
gear on board capable of catching multispecies finfish. (iii) 
Classified as charter, party, or recreational.
    (h) Massachusetts Bay Closure Area. (1) During the period March 1 
through March 30, no fishing vessel or person on a fishing vessel may 
enter, fish, or be, and no fishing gear capable of catching 
multispecies finfish, unless otherwise allowed in this part may be, in 
the area known as the Massachusetts Bay Closure Area (Figure 3 to part 
651), as defined by straight lines connecting the following points in 
the order stated, except as specified in paragraphs (d) and (h)(2) of 
this section:

------------------------------------------------------------------------
              Point latitude                          Longitude         
------------------------------------------------------------------------
MB1 42 deg.30' N..........................  Massachusetts shoreline.    
MB2 42 deg.30' N..........................  70 deg.30' W.               
MB3 42 deg.12' N..........................  70 deg.30' W.               
MB4 42 deg.12' N..........................  70 deg.00' W.               
MB5 Cape Cod shoreline....................  70 deg.00' W.               
MB6 42 deg.00' N..........................  Cape Cod shoreline.         

[[Page 27741]]

                                                                        
MB7 42 deg.00' N..........................  Massachusetts shoreline.    
------------------------------------------------------------------------



    (2) Exceptions. Paragraph (h)(1) of this section does not apply to 
persons on fishing vessels or fishing vessels:
    (i) That have not been issued a Federal multispecies permit under 
Sec. 651.4 and that are fishing exclusively in state waters.
    (ii) Fishing with or using exempted gear as defined under this 
part, excluding mid-water trawl gear, provided that there is no other 
gear on board capable of catching multispecies finfish.
    (iii) Classified as charter, party, or recreational.
    8. Section 651.22 is revised to read as follows:


Sec. 651.22  Effort-control program for limited access vessels.

    (a) A vessel issued a limited access multispecies permit under 
Sec. 651.4(b) may not fish for, possess or land regulated species 
except during a DAS as allocated under and in accordance with the 
applicable DAS program described below, unless otherwise provided in 
these regulations.
    (b) DAS program--Permit categories, allocations and initial 
assignments to categories. For the remainder of the 1996 fishing year, 
all limited access multispecies permit holders shall be assigned to one 
of the following DAS permit categories according to the criteria 
specified. Permit holders may request a change in permit category for 
the remainder of the 1996 fishing year and all fishing years thereafter 
as specified in Sec. 651.4(f)(3). Each fishing year shall begin on May 
1 and extend through April 30 of the following year.
    (1) Individual DAS Category--(i) DAS allocation. Vessels assigned 
to the Individual DAS category shall be allocated 65 percent of their 
initial 1994 allocation baseline determined by regulations implementing 
Amendment 5 to the FMP for the 1996 fishing year multiplied by the 
proration factor equal to 0.83 and 50 percent of the vessel's initial 
allocation baseline for the 1997 fishing year and beyond, as calculated 
under paragraph (d)(1) of this section.
    (ii) Initial assignment. All vessels issued valid Individual DAS 
limited access multispecies permits, with the exception of vessels that 
have also been issued limited access multispecies Gillnet category 
permits, as of the effective date of the final rule for Amendment 7, 
shall be initially assigned to this category.
    (2) Fleet DAS Category--(i) DAS allocation. Vessels assigned to the 
Fleet DAS category shall be allocated 139 DAS for the 1996 fishing year 
multiplied by the proration factor equal to 0.83 for a total of 115 
DAS, and 88 DAS for the 1997 fishing year and beyond.
    (ii) Initial assignment. As of the effective date of the final rule 
for Amendment 7, vessels issued valid permits in one of the following 
categories shall be initially assigned to this category: Fleet DAS 
permit holders; limited access multispecies Hook-Gear permit holders; 
limited access multispecies Gillnet permit holders; limited access 
multispecies 45 ft (13.7 m) category permit holders that are larger 
than 20 ft (6.1 m) in length as determined by the most recent permit 
application. determined by the most recent permit application.
    (3) Small vessel category--(i) DAS allocation. Vessels qualified 
and electing to fish under the Small Vessel category may retain cod, 
haddock, and yellowtail flounder, combined up to 300 lb (136.1 kg) per 
trip without being subject to DAS restrictions. These vessels are not 
subject to a possession limit for the other multispecies finfish.
    (ii) Initial assignment. All vessels issued a valid limited access 
multispecies permit and fishing under the small boat exemption (less 
than or equal to 45 ft (13.7 m)) permit as of the effective date of the 
final rule for Amendment 7, and that are 20 ft (6.1 m) or less in 
length as determined by the vessel's last application for a permit 
shall be initially assigned to this category. Other vessels may elect 
to change into this category as provided for in Sec. 651.4(f)(3) if 
such vessel meets or complies with the following:
    (A) The vessel is 30 ft (9.1 m) or less in length overall as 
determined by measuring along a horizontal line drawn from a 
perpendicular raised from the outside of the most forward portion of 
the stem of the vessel to a perpendicular raised from the after most 
portion of the stern.
    (B) Vessels for which construction was begun after May 1, 1994, 
must be constructed such that the quotient of the overall length 
divided by the beam will not be less than 2.5.
    (C) Acceptable verification for vessels 20 ft (6.1 m) or less in 
length shall be U.S. Guard documentation or state registration papers. 
For vessels over 20 ft (6.1 m) in length, the measurement of length 
must be verified in writing by a qualified marine surveyor, or the 
builder, based on the boat's construction plans, or by other means 
determined acceptable by the Regional Director. A copy of the 
verification must accompany an application for a Federal multispecies 
permit issued under Sec. 651.4.
    (D) Adjustments to the small-boat category requirements, including 
changes to the length requirement, if required to meet fishing 
mortality goals, may be made following a reappraisal and analysis under 
the framework provisions specified in subpart C.
    (4) Hook-Gear Category--(i) DAS allocation. Vessels issued a valid 
limited access multispecies Hook-Gear permit shall be allocated 139 DAS 
multiplied by the proration factor equal to 0.83 for a total of 115 DAS 
for the 1996 fishing year and 88 DAS for the 1997 fishing year and 
beyond. A vessel fishing in this permit category under the DAS program 
must meet or comply with the following while fishing for, in possession 
of, or landing, regulated species:
    (A) Vessels, and persons on such vessels, are prohibited from 
possessing gear other than hook gear on board the vessel.
    (B) Vessels, and persons on such vessels, are prohibited from 
fishing, setting, or hauling back, per day, or possessing on board the 
vessel, more than 4,500 rigged hooks. An unbaited hook and gangion that 
has not been secured to the ground line of the trawl on board a vessel 
is deemed to be a replacement hook and is not counted toward the 4,500 
hook limit. A ``snap-on'' hook is deemed to be a replacement hook if it 
is not rigged or baited.
    (ii) Initial assignment. No vessel shall be initially assigned to 
the Hook-Gear category. Any vessel that meets the qualifications 
specified in Sec. 651.4(b)(1) may apply for and obtain a permit to fish 
under this category.
    (5) Combination Vessel Category--(i) DAS allocation. Vessels 
assigned to the Combination Vessel category shall be allocated 65 
percent of their initial 1994 allocation as determined by regulations 
implementing Amendment 5 to the FMP multiplied by the proration factor 
equal to 0.83 for the 1996 fishing year and 50 percent of the vessel's 
initial allocation baseline for the 1997 fishing year and beyond, as 
calculated under paragraph (d)(1) of this section.
    (ii) Initial assignment. All vessels issued a valid limited access 
multispecies permit qualified to fish as a Combination Vessel as of the 
effective date of the final rule for Amendment 7 shall be assigned to 
this category.
    (6) Large Mesh Individual DAS Category--(i) DAS allocation. Vessels 
fishing under the Large Mesh Individual DAS category shall be allocated 
a DAS increase that is equivalent to a 12 percent increase in DAS in 
year 1 and a 36 percent increase in DAS in year 2

[[Page 27742]]

beyond the DAS allocations specified in (b)(1)(i) of this section, 
which includes the proration factor for 1996. To be eligible to fish 
under the Large Mesh Individual DAS permit category a vessel while 
fishing under the DAS program, must fish with gillnet gear with a 
minimum mesh net of 7 inch (17.78 cm) diamond or trawl gear with a 
minimum mesh size of 8 inch (20.32 cm) diamond, for the entire fishing 
year, as described under Sec. 651.20 (a)(2)(ii), (c)(2)(ii), and 
(d)(2)(ii).
    (ii) Initial assignment. No vessel shall be initially assigned to 
the Large Mesh Individual DAS category. Any vessel that is initially 
assigned to the Individual DAS, Fleet DAS, or Small Vessel permit 
category may request and be granted a change in category into this 
category as specified in Sec. 651.4(f)(3).
    (7) Large Mesh Fleet DAS Category--(i) DAS allocation. Vessels 
fishing under the Large Mesh Fleet DAS category shall be allocated 155 
DAS multiplied by the proration factor equal to 0.83 for the 1996 
fishing year, and 120 DAS for the 1997 fishing year and beyond. To be 
eligible to fish under the Large Mesh Fleet DAS permit category a 
vessel must fish with gillnet gear with a minimum mesh net of 7 inch 
(17.78 cm) diamond or trawl gear with a minimum mesh size of 8 inch 
(20.32 cm) diamond, as described under Sec. 651.20(a)(2)(ii), 
(c)(2)(ii), and (d)(2)(ii).
    (ii) Initial assignment. No vessel shall be initially assigned to 
the Large Mesh Fleet DAS category. Any vessel that is initially 
assigned to the Individual DAS, Fleet DAS, or Small Vessel permit 
category may request and be granted a change in category into this 
category as specified in Sec. 651.4(f)(3).
    (c) The 1996 DAS appeals. (1) Previously exempted vessels. A vessel 
that was issued a valid 1995 limited access multispecies permit, and 
has been fishing under the Small boat exemption (less than or equal to 
45 ft (13.7 m)), Hook-Gear or Gillnet permit categories, that elects to 
fish under the Individual DAS category, and has not previously been 
allocated Individual DAS, is eligible to appeal its allocation of DAS 
if it has not previously done so, as described under paragraph (d)(2) 
of this section. Each of these vessel's initial allocation of 
Individual DAS will be considered to be 176 for purposes of this appeal 
(that is, the Fleet DAS category baseline prior to the 1996-97 
reductions).
    (2) Exempted gillnet vessels that held an Individual DAS permit. A 
vessel that was issued a valid 1995 limited access multispecies permit 
and fishing under the Gillnet permit category and the Individual DAS 
permit category, that elects to fish under the Individual DAS category, 
is eligible to appeal its allocation of gillnet DAS, as described under 
paragraph (d)(2) of this section. Each of these vessels' initial 
allocation of Individual DAS will be considered to be 176 for purposes 
of this appeal (that is, the Fleet DAS category baseline prior to the 
1996-97 reductions).
    (d) Individual DAS allocations--(1) Calculation of a vessel's 
Individual DAS. The DAS assigned to a vessel for purposes of 
determining that vessel's annual allocation under the Individual DAS 
Program shall be calculated as follows:
    (i) Calculate the total number of the vessel's multispecies DAS for 
the years 1988, 1989, and 1990. Multispecies DAS are deemed to be the 
total number of days the vessel was absent from port for a trip where 
greater than 10 percent of the vessel's total landings were comprised 
of regulated species, minus any days for such trips in which a scallop 
dredge was used.
    (ii) Exclude the year of least multispecies DAS.
    (iii) If 2 years of multispecies DAS are remaining, average those 
years' DAS, or, if only 1 year remains, use that year's DAS.
    (2) Appeal of DAS allocation--(i) Initial allocations of Individual 
DAS to those vessels authorized to appeal under paragraph (c) of this 
section may be appealed to the Regional Director if a request to appeal 
is received by the Regional Director no later than August 31, 1996, or 
30 days after the initial allocation is made, whichever is later. Any 
such appeal must be in writing and be based on one or more of the 
following grounds:
    (A) The information used by the Regional Director was based on 
mistaken or incorrect data;
    (B) The applicant was prevented by circumstances beyond his/her 
control from meeting relevant criteria; or
    (C) The applicant has new or additional information.
    (ii) The Regional Director will appoint a designee who will make an 
initial decision on the written appeal.
    (iii) If the applicant is not satisfied with the initial decision, 
the applicant may request that the appeal be presented at a hearing 
before an officer appointed by the Regional Director.
    (iv) The hearing officer shall present his/her findings to the 
Regional Director and the Regional Director will make a decision on the 
appeal. The Regional Director's decision on this appeal is the final 
administrative decision of the Department of Commerce.
    (3) Status of vessels pending appeal of DAS allocations. Vessels, 
while their Individual DAS allocation is under appeal, may fish under 
the Fleet DAS category until the Regional Director has made a final 
determination on the appeal. Any DAS spent fishing for regulated 
species by a vessel while that vessel's initial DAS allocation is under 
appeal, shall be counted against any DAS allocation that the vessel may 
ultimately receive.
    (e) Accrual of DAS. DAS shall accrue in hourly increments, with all 
partial hours counted as full hours.
    (f) Good Samaritan credit. Limited access vessels fishing under the 
DAS program and that spend time at sea for one of the following 
reasons, and that can document the occurrence through the U.S. Coast 
Guard, will be credited for the time documented:
    (1) Time spent assisting in a U.S. Coast Guard search and rescue 
operation; or
    (2) Time spent assisting the U.S. Coast Guard in towing a disabled 
vessel.
    (g) Spawning season restrictions. Vessels issued a valid Small 
Vessel category permit under paragraph (b)(3) of this section may not 
fish for, possess, or land regulated species between March 1 and March 
20 of each year. All other vessels issued limited access permits must 
declare out and be out of the regulated multispecies finfish fishery 
for a 20-day period between March 1 and May 31 of each calendar year 
using the notification requirements specified under Sec. 651.29. If a 
vessel owner has not declared, or taken, the period of time required 
between March 1 and May 31 of each fishing year on or before May 12 of 
each such year, the vessel is prohibited from fishing for, possessing 
or landing any regulated species during the period May 12 through May 
31, inclusive. If a vessel has taken a spawning season 20-day block out 
of the multispecies fishery during May, 1996, it shall not be required 
to take a 20-day block out of the multispecies fishery in 1997. 
Beginning January 1, 1998, any such vessel must comply with the 
spawning season restriction as specified in this part.
    (h) Declaring DAS and 20-day blocks. A vessel's owner or authorized 
representative shall notify the Regional Director of a vessel's 
participation in the DAS program and declaration of its 20-day spawning 
period out of the multispecies fishery using the notification 
requirements specified under Sec. 651.29.
    (i) Adjustments in annual DAS allocations. Adjustments in annual 
DAS allocations, if required to meet fishing mortality goals, may be 
made following

[[Page 27743]]

a reappraisal and analysis as specified in subpart C.
    9. In Sec. 651.23, paragraph (a) introductory text, and paragraphs 
(d) and (e) are revised to read as follows:


Sec. 651.23  Minimum fish size.

    (a) Minimum fish sizes for recreational vessels and charter/party 
vessels that are not fishing under a multispecies DAS are specified in 
Sec. 651.34. All other vessels are subject to minimum fish sizes (total 
length) as follows:
* * * * *
    (d) Exception. Each person aboard a vessel issued a limited access 
permit and fishing under the DAS program may possess up to 25 lb (11.3 
kg) of fillets that measure less than the minimum size, if such fillets 
are from legal-sized fish and are not offered or intended for sale, 
trade, or barter.
    (e) Adjustments of minimum size. (1) At anytime when information is 
available, the Council will review the best available mesh selectivity 
information to determine the appropriate minimum size for the species 
listed in paragraph (a) of this section, except winter flounder, 
according to the length at which 25 percent of the regulated species 
would be retained by the applicable minimum mesh size.
    (2) Upon determination of the appropriate minimum sizes, the 
Council shall propose the minimum fish sizes to be implemented 
following the procedures specified in subpart C.
    (3) Additional adjustments or changes to the minimum fish sizes 
specified in paragraphs (a) and (b) of this section, and exemptions as 
specified in paragraphs (a) and (b) of this section, and exemptions as 
specified in paragraph (c) of this section, may be made at any time 
after implementation of the final rule as specified under subpart C.
    10. Section 651.27 is revised to read as follows:


Sec. 651.27  Additional haddock possession restrictions.

    (a) Haddock--(1) Multispecies DAS vessels. A vessel issued a 
limited access multispecies permit under this part that is fishing 
under a multispecies DAS may land, or possess on board, up to 1000 lb 
(453.6 kg) of haddock. Haddock on board a vessel subject to this 
possession limit must be separated from other species of fish and 
stored so as to be readily available for inspection. Vessels subject to 
this possession limit shall have on board the vessel at least one 
standard tote.
    (2) Scallop dredge vessels--(i) No person owning or operating a 
scallop dredge vessel issued a permit under this part may land haddock 
from, or possess haddock on board, a scallop dredge vessel, from 
January 1 through June 30.
    (ii) No person owning or operating a scallop dredge vessel without 
a permit under this part may possess haddock in, or harvested from, the 
EEZ, from January 1 through June 30.
    (iii) From July 1 through December 31, no scallop dredge vessel or 
persons owning or operating a scallop dredge vessel, that is fishing 
under the scallop DAS program as described in Sec. 651.20(i), may land, 
or possess on board, more than 300 lb (136.1 kg) of haddock. Haddock on 
board a vessel subject to this possession limit must be separated from 
other species of fish and stored so as to be readily available for 
inspection. Vessels subject to this possession limit shall have on 
board the vessel at least one standard tote.
    (b) Vessels are subject to any other applicable possession limit 
restrictions of this part.
    11. In Sec. 651.28, paragraph (c) is removed, the heading and the 
first sentence of paragraph (a), and paragraph (b) are revised to read 
as follows:


Sec. 651.28  Monitoring requirements.

    (a) Individual DAS limited access multispecies vessels. Unless 
otherwise authorized or required by the Regional Director under 
Sec. 651.29(b), vessel owners fishing under the Individual DAS program 
and Combination Vessels must have installed on board an operational VTS 
unit that meets the minimum performance criteria specified in paragraph 
(a)(2) of this section, or as modified annually as specified in 
paragraph (a)(1) of this section. * * *
    (b) Fleet DAS and other limited access multispecies vessels. 
Vessels issued limited access multispecies permits who are 
participating in a DAS program and who are not required to provide 
notification using a VTS shall be subject to the call-in requirements 
specified in Sec. 651.29(b).
    12. Section 651.29 is revised to read as follows:


Sec. 651.29  DAS notification program.

    (a) VTS notification. Unless otherwise authorized by the Regional 
Director as specified in paragraph (c) of this section, owners of 
vessels issued limited access multispecies permits that have elected to 
or are required to use a VTS system shall be subject to the following 
requirements:
    (1) Vessels that are issued limited access multispecies permits, 
that have crossed the demarcation line specified under paragraph (d) of 
this section, are deemed to be fishing under the DAS program unless the 
vessel's owner or authorized representative declares the vessel out of 
the multispecies fishery, by notifying the Regional Director through 
the VTS. The owner or authorized representative of any vessel that has 
been declared out of the multispecies fishery must notify the Regional 
Director through the VTS prior to leaving port on the vessel's next 
trip under the DAS program.
    (2) If the VTS is not available, or not functional, and if 
authorized by the Regional Director, a vessel owner must comply with 
the call-in notification requirements specified in paragraph (b) of 
this section.
    (3) Notification that the vessel is not under the DAS program must 
be received prior to the vessel leaving port. A change in status of a 
vessel cannot be made after the vessel leaves port or before it returns 
to port on any fishing trip.
    (b) Call-in notification. Vessel owners authorized or required to 
provide notification using the call-in system shall be subject to the 
following requirements:
    (1) The vessel owner or authorized representative shall notify the 
Regional Director, prior to leaving port, that the vessel will be 
participating in the applicable DAS program by calling 1-800-260-8204 
or 508-281-9335, and providing the following information: Vessel name 
and permit number, owner and caller name and phone number, the type of 
trip to be taken, the port of departure, and that the vessel is 
beginning a trip.
    (2) A multispecies DAS begins once the call has been received and 
confirmation given by the Regional Director.
    (3) The vessel's confirmation numbers for the current and 
immediately prior multispecies fishing trip must be maintained on board 
the vessel and provided to an authorized officer upon request.
    (4) Upon returning to port, at the end of a fishing trip as defined 
in paragraph (d) of this section, the vessel owner or owner's 
representative shall notify the Regional Director that the trip has 
ended by calling 1-800-260-8204 or 508-281-9335, and providing the 
following information: Vessel name and permit number, owner and caller 
name and telephone number, port landed, confirmation number, and that 
the fishing trip has ended.
    (5) A DAS ends when the call has been received and confirmation 
given by the Regional Director.

[[Page 27744]]

    (6) Any vessel issued a limited access multispecies permit subject 
to the DAS program and call-in requirement, that possess or lands 
regulated species, except as provided in Sec. 651.34, shall be deemed 
in the DAS program for purposes of counting DAS, regardless of whether 
or not the vessel's owner or authorized representative provided 
adequate notification as required by this part.
    (7) Any change in status of a vessel cannot be done after leaving 
port on any fishing trip.
    (c) Temporary authorization for use of the call-in system. The 
Regional Director may authorize or require, on a temporary basis, the 
use of an alternative call-in system of notification. If the call-in 
system is authorized or required, the Regional Director shall notify 
affected permit holders through a letter, notification in the Federal 
Register, or other appropriate means. Vessel owners authorized or 
required by the Regional Director to provide notification by a call-in 
system under this paragraph shall be subject to the requirements 
specified in paragraph (b) of this section.
    (d) Counting of DAS for vessels fishing under the VTS system. (1) 
DAS for vessels that are under the VTS monitoring system described in 
Sec. 651.29(a) are counted beginning with the first hourly location 
signal received showing that the vessel crossed the Vessel Tracking 
System Demarcation Line leaving port. A trip concludes and accrual of 
DAS ends with the first hourly location signal received showing that 
the vessel crossed the Vessel Tracking System Demarcation Line upon its 
return to port.
    (2) Vessel Tracking System Demarcation Line. The VTS Demarcation 
Line is defined as straight lines connecting the following points in 
the order stated (see Figures 6 and 7 to part 651):

                                     Vessel Tracking System Demarcation Line                                    
----------------------------------------------------------------------------------------------------------------
                    Description                                Longitude                      Latitude          
----------------------------------------------------------------------------------------------------------------
1. Northern terminus point (Canada land mass)......  45 deg.03' N.                  66 deg.47' W.               
2. A point east of West Quoddy Head Light..........  44 deg.48.9' N.                66 deg.56.1' W.             
3. A point east of Little River Light..............  44 deg.39.0' N.                67 deg.10.5' W.             
4. Whistle Buoy ``8BI'' (SSE of Baker Island)......  44 deg.13.6' N.                68 deg.10.8' W.             
5. Isle au Haut Light..............................  44 deg.03.9' N.                68 deg.39.1' W.             
6. Pemaquid Point Light............................  43 deg.50.2' N.                69 deg.30.4' W.             
7. A point west of Halfway Rock....................  43 deg.38.0' N.                70 deg.05.0' W.             
8. A point east of Cape Neddick Light..............  43 deg.09.9' N.                70 deg.34.5' W.             
9. Merrimack River Entrance ``MR'' Whistle Buoy....  42 deg.48.6' N.                70 deg.47.1' W.             
10. Halibut Point Gong Buoy ``1AHP''...............  42 deg.42.0' N.                70 deg.37.5' W.             
11. Connecting reference point.....................  42 deg.40' N.                  70 deg.30' W.               
12. Whistle Buoy ``2'' off Eastern Point...........  42 deg.34.3' N.                70 deg.39.8' W.             
13. The Graves Light (Boston)......................  42 deg.21.9' N.                70 deg.52.2' W.             
14. Minots Ledge Light.............................  42 deg.16.2' N.                70 deg.45.6' W.             
15. Farnham Rock Lighted Bell Buoy.................  42 deg.05.6' N.                70 deg.36.5' W.             
16. Cape Cod Canal Bell Buoy ``CC''................  41 deg.48.9' N.                70 deg.27.7' W.             
17. A point inside Cape Cod Bay....................  41 deg.48.9' N.                70 deg.05' W.               
18. Race Point Lighted Bell Buoy ``RP''............  42 deg.04.9' N.                70 deg.16.8' W.             
19. Peaked Hill Bar Whistle Buoy ``2PH''...........  42 deg.07.0' N.                70 deg.06.2' W.             
20. Connecting point, off Nauset Light.............  41 deg.50' N.                  69 deg.53' W.               
21. A point south of Chatham ``C'' Whistle Buoy....  41 deg.38' N.                  69 deg.55.2' W.             
22. A point in eastern Vineyard Sound..............  41 deg.30' N.                  70 deg.33' W.               
23. A point east of Martha's Vineyard..............  41 deg.22.2' N.                70 deg.24.6' W.             
24. A point east of Great Pt. Light, Nantucket.....  41 deg.23.4' N.                69 deg.57' W.               
25. A point SE of Sankaty Head, Nantucket..........  41 deg.13' N.                  69 deg.57' W.               
26. A point west of Nantucket......................  41 deg.15.6' N.                70 deg.25.2' W.             
27. Squibnocket Lighted Bell Buoy ``1''............  41 deg.15.7' N.                70 deg.46.3' W.             
28. Wilbur Point (on Sconticut Neck)...............  41 deg.35.2' N.                70 deg.51.2' W.             
29. Mishaum Point (on Smith Neck)..................  41 deg.31.0' N.                70 deg.57.2' W.             
30. Sakonnet Entrance Lighted Whistle Buoy ``SR''..  41 deg.25.7' N.                71 deg.13.4' W.             
31. Point Judith Lighted Whistle Buoy ``2''........  41 deg.19.3' N.                71 deg.28.6' W.             
32. A point off Block Island Southeast Light.......  41 deg.08.2' N                 71 deg.32.1' W.             
33. Shinnecock Inlet Lighted Whistle Buoy ``SH''...  40 deg.49.0' N.                72 deg.28.6' W.             
34. Scotland Horn Buoy ``S'', off Sandy Hook (NJ)..  40 deg.26.5' N.                73 deg.55.0' W.             
35. Barnegat Lighted Gong Buoy ``2''...............  39 deg.45.5' N.                73 deg.59.5' W.             
36. A point east of Atlantic City Light............  39 deg.21.9' N.                74 deg.22.7' W.             
37. A point east of Hereford Inlet Light...........  39 deg.00.4' N.                74 deg.46' W.               
38. A point east of Cape Henlopen Light............  38 deg.47' N.                  75 deg.04' W.               
39. A point east of Fenwick Island Light...........  38 deg.27.1' N.                75 deg.02' W.               
40. A point NE of Assateague Island (VA)...........  38 deg.00' N.                  75 deg.13' W.               
41. Wachapreague Inlet Lighted Whistle Buoy ``A''..  37 deg.35.0' N.                75 deg.33.7' W.             
42. A point NE of Cape Henry.......................  36 deg.55.6' N.                75 deg.58.5' W.             
43. A point east of Currituck Beach Light..........  36 deg.22.6' N.                75 deg.48' W.               
44. Oregon Inlet (NC) Whistle Buoy.................  35 deg.48.5' N.                75 deg.30' W.               
45. Wimble Shoals, east of Chicamacomico...........  35 deg.36' N.                  75 deg.26' W.               
46. A point SE of Cape Hatteras Light..............  35 deg.12.5' N.                75 deg.30' W.               
47. Hatteras Inlet Entrance Buoy ``HI''............  35 deg.10' N.                  75 deg.46' W.               
48. Ocracoke Inlet Whistle Buoy ``OC''.............  35 deg.01.5' N.                76 deg.00.5' W.             
49. A point east of Cape Lookout Light.............  34 deg.36.5' N.                76 deg.30' W.               
50. Southern terminus point........................  34 deg.45' N.                  76 deg.41' W.               
----------------------------------------------------------------------------------------------------------------


[[Page 27745]]


    (e) Call-in for 20 day blocks. With the exception of vessels issued 
a valid Small Vessel category permit, vessels subject to the spawning 
season restriction described in Sec. 651.22 must notify the Regional 
Director of the commencement date of their 20-day period out of the 
multispecies fishery through either the VTS system or by calling 1-800-
260-8204 or 508-281-9335 and providing the following information: 
Vessel name and permit number, owner and caller name and phone number, 
and the commencement date of the 20 day period.
    13. In Sec. 651.31, paragraph (d) is added to read as follows:


Sec. 651.31  At-sea observer coverage.

* * * * *
    (d) Industry funded observer coverage. NMFS may accept observer 
coverage funded by sources outside the U.S. Government provided the 
following requirements are met:
    (1) All coverage conducted by such observers is determined by NMFS 
to be in compliance with NMFS' observer guidelines and procedures.
    (2) The owner or operator of the vessel complies with all other 
provisions of this part.
    (3) The observer is approved by the Regional Director.
    14. Section 651.32 is revised to read as follows:


Sec. 651.32  Sink gillnet requirements to reduce harbor porpoise takes.

    (a) Areas closed to sink gillnets. (1) Harbor porpoise take 
restrictions. The closed area restrictions prohibiting sink gillnets in 
the areas and times specified in Sec. 651.21(f) through (h) are 
implemented in order to reduce the takes of harbor porpoise consistent 
with the harbor porpoise mortality reduction goals.
    (2) Additional harbor porpoise area closures. All persons owning or 
operating vessels must remove all of their sink gillnet gear from, and 
may not use, set, haul back, fish with, or possess on board, unless 
stowed in accordance with Sec. 651.21(e)(4), a sink gillnet in the EEZ 
portion of the areas and for the times specified in paragraphs 
(a)(2)(i) and (ii) of this section; and, all persons owning or 
operating vessels issued a Federal multispecies limited access permit 
must remove all of their sink gillnet gear from, and may not use, set, 
haul back, fish with, or possess on board a vessel, unless stowed in 
accordance with Sec. 651.21(e)(4), a sink gillnet in the areas, and for 
the times specified, in paragraphs (a)(2)(i) and (ii) of this section.
    (i) Mid-coast Closure Area. During the period March 25 through 
April 25 of each fishing year, the restrictions and requirements 
specified under paragraph (a)(2) of this section shall apply to the 
Mid-coast Closure Area, as defined under Sec. 651.21(g)(1).
    (ii) Cape Cod South Area Closure. During the period March 1 through 
March 30 of each fishing year, the restrictions and requirements 
specified under paragraph (a)(2) of this section shall apply to an area 
known as the Cape Cod South Area Closure which is an area bounded by 
straight lines connecting the following points in the order stated (see 
Figure 9 of this part).

                       Cape Cod South Closure Area                      
------------------------------------------------------------------------
             Point                     Latitude             Longitude   
------------------------------------------------------------------------
CCS1..........................  RI shoreline..........  71 deg.45' W.   
CCS2..........................  40 deg.40' N..........  71 deg.45' W.   
CCS3..........................  40 deg.40' N..........  70 deg.30' W.   
CCS4..........................  MA shoreline..........  70 deg.30' W.   
------------------------------------------------------------------------

    (b) Framework adjustment. (1) At least annually the Regional 
Director will provide the Council with the best available information 
on the status of Gulf of Maine harbor porpoise including estimates of 
abundance and estimates of bycatch in the sink gillnet fishery. Within 
60 days of receipt of that information, the Council's Harbor Porpoise 
Review Team shall complete a review of the data, assess the adequacy of 
existing regulations, evaluate the impacts of other measures that 
reduce harbor porpoise take and, if necessary, recommend additional 
measures in light of the Council's harbor porpoise mortality reduction 
goals. In addition, the HPRT shall make a determination on whether 
other conservation issues exist that require a management response to 
meet the goals and objectives outlined in the FMP. The HPRT shall 
report its findings and recommendations to the Council.
    (2) After receiving and reviewing the HPRT's findings and 
recommendations, the Council shall determine whether adjustments or 
additional management measures are necessary to meet the goals and 
objectives of the FMP. If the Council determines that adjustments or 
additional management measures are necessary, or at any other time in 
consultation with the HPRT, it shall develop and analyze appropriate 
management actions over the span of at least two Council meetings.
    (3) The Council may request at any time that the HPRT review and 
make recommendations on any harbor porpoise take reduction measures or 
develop additional take reduction proposals.
    (4) The Council shall provide the public with advance notice of the 
availability of the proposals, appropriate rationale, economic and 
biological analyses, and opportunity to comment on them prior to and at 
the second Council meeting. The Council's recommendation on adjustments 
or additions to management measures must come from one or more of the 
categories specified under Sec. 651.40(b)(1).
    (5) If the Council recommends that the management measures should 
be published as a final rule, the Council must consider at least the 
factors specified in Sec. 651.40(b)(2).
    (6) The Regional Director may accept, reject, or with Council 
approval, modify the Council's recommendation, including the Council's 
recommendation to publish a final rule, as specified under 
Sec. 651.40(b)(3).
    14. Section 651.33 is revised to read as follows:


Sec. 651.33  Open access permit restrictions.

    (a) Handgear permit. A vessel issued a valid open access Handgear 
permit issued under Sec. 651.4(c) is subject to the following 
restrictions:
    (1) The vessel may possess and land up to 300 lb (136.1 kg) of cod, 
haddock, and yellowtail flounder, combined, per trip, and unlimited 
amounts of the other multispecies finfish provided that it does not 
use, or possess on board, gear other than rod and reel or handlines 
while in possession of, fishing for, or landing multispecies finfish. 
Vessels subject to this possession limit shall have at least one 
standard tote on board.
    (2) A vessel may not fish for, possess, or land regulated species 
between March 1 and March 20 of each year.
    (b) Charter/party permit. A vessel that has been issued a valid 
open access Charter/party permit under Sec. 651.4(c), and has declared 
into the charter/party fishery, is subject to the restrictions on gear, 
recreational minimum fish sizes and prohibitions on sale specified in 
Sec. 651.34, and any other applicable provisions of this part.
    (c) Scallop Multispecies Possession Limit Permit. A vessel that has 
been issued a valid open access Scallop Multispecies Possession Limit 
permit under Sec. 651.4(c) may possess and land up to 300 lb (136.1 kg) 
of regulated species when fishing under a scallop DAS as described 
under Sec. 651.20(i), provided the vessel does not fish for, possess or 
land haddock during January 1 through June 30 as specified under 
Sec. 651.27(a)(2)(i). Vessels subject to this possession limit shall 
have at least one standard tote on board.

[[Page 27746]]

    15. Section 651.34 is added to subpart B to read as follows:


Sec. 651.34  Recreational and charter/party vessel restrictions.

    (a) Recreational gear restrictions. Persons aboard charter or party 
vessels permitted under this part and not fishing under the DAS 
program, and recreational fishing vessels in the EEZ, are prohibited 
from fishing with more than two hooks per line and one line per angler 
and must stow all other fishing gear on board the vessel as specified 
under Secs. 651.20(c)(4) and 651.21(e)(2), 651.21(e)(3) and 
651.21(e)(4).
    (b) Recreational minimum fish sizes. (1) Persons aboard charter or 
party vessels permitted under this part and not fishing under the DAS 
program, and recreational fishing vessels in the EEZ, are subject to 
minimum fish sizes (total length) as follows:

                                                  Recreational                                                  
----------------------------------------------------------------------------------------------------------------
                                                                               Inches                           
                      Species                      -------------------------------------------------------------
                                                                 1996                          1997+            
----------------------------------------------------------------------------------------------------------------
Cod...............................................  20(50.8 cm)..................  21 (53.3 cm)                 
Haddock...........................................  20 (50.8 cm).................  21 (53.3 cm)                 
Pollock...........................................  19 (48.3 cm).................  19 (48.3 cm)                 
Witch flounder (gray sole)........................  14 (35.6 cm).................  14 (35.6 cm)                 
Yellowtail flounder...............................  13 (33.0 cm).................  13 (33.0 cm)                 
American plaice (dab).............................  14 (35.6 cm).................  14 (35.6 cm)                 
Winter flounder (blackback).......................  12 (30.5 cm).................  12 (30.5 cm)                 
Redfish...........................................    9 (22.9 cm)................    9 (22.9 cm)                
----------------------------------------------------------------------------------------------------------------

    (2) Exception. Persons aboard charter or party vessels permitted 
under this part and not fishing under the DAS program, and recreational 
fishing vessels in the EEZ, may possess fillets less than the minimum 
size specified, if the fillets are taken from legal-sized fish and are 
not offered or intended for sale, trade or barter.
    (c) Possession restrictions. Each person on a recreational vessel 
may not possess more than 10 cod and/or haddock, combined, in or 
harvested from the EEZ:
    (1) For purposes of counting fish, fillets will be converted to 
whole fish at the place of landing by dividing fillet number by two. If 
fish are filleted into a single (butterfly) fillet, such fillet shall 
be deemed to be from one whole fish.
    (2) Cod and haddock harvested by recreational vessels with more 
than one person aboard may be pooled in one or more containers. 
Compliance with the possession limit will be determined by dividing the 
number of fish on board by the number of persons aboard. 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.
    (3) Cod and haddock must be stored, so as to be readily available 
for inspection.
    (d) Restrictions on sale. It is unlawful to sell, barter, trade, or 
otherwise transfer for a commercial purpose, or to attempt to sell, 
barter, trade, or otherwise transfer for a commercial purpose, 
multispecies finfish caught or landed by charter or party vessels 
permitted under this part not fishing under a DAS or a recreational 
fishing vessels fishing in the EEZ.
    16. Section 651.40 is revised to read as follows:


Sec. 651.40  Framework Specifications.

    (a) Annual review. The Multispecies Monitoring Committee (MSMC) 
shall meet on or before November 15 of each year to develop target TACs 
for the upcoming fishing year and options for Council consideration on 
any changes, adjustment or additions to DAS allocations, closed areas 
or other measures necessary to achieve the FMP goals and objectives.
    (1) The MSMC must review available data pertaining to the 
following:
    (i) Catch and landings.
    (ii) DAS and other measures of fishing effort.
    (iii) Survey results.
    (iv) Stock status.
    (v) Current estimates of fishing mortality.
    (vi) Any other relevant information.
    (2) Based on this review, the MSMC shall recommend target TACs and 
develop options necessary to achieve the FMP goals and objectives, 
which may include a preferred option. The MSMC must demonstrate through 
analysis and documentation that the options it develops are expected to 
meet the FMP goals and objectives. The MSMC may review the performance 
of different user groups or fleet sectors in developing options. The 
range of options developed by the MSMC may include any of the 
management measures in the FMP including, but not limited to:
    (i) The annual target TACs which must be based on the projected 
fishing mortality levels required to meet the goals and objectives 
outlined in the FMP for the 10 regulated species.
    (ii) DAS changes.
    (iii) Possession limits.
    (iv) Gear restrictions.
    (v) Closed areas.
    (vi) Permitting restrictions.
    (vii) Minimum fish sizes.
    (viii) Recreational fishing measures.
    (ix) Any other management measures currently included in the FMP.
    (3) The Council shall review the recommended target TACs and all of 
the options developed by the MSMC, other relevant information, consider 
public comment, and develop a recommendation to meet the FMP objective 
that is consistent with other applicable law. If the Council does not 
submit a recommendation that meets the FMP objectives and is consistent 
with other applicable law, the Regional Director may adopt any option 
developed by the MSMC, unless rejected by the Council, as specified in 
(a)(6) of this section, provided that the option meets the FMP 
objective and is consistent with other applicable law.
    (4) Based on this review, the Council shall submit a recommendation 
to the Regional Director of any changes, adjustments or additions to 
DAS allocations, closed areas or other measures necessary to achieve 
the FMP's goals and objectives. Included in the Council's 
recommendation will be supporting documents, as appropriate, concerning 
the environmental and economic impacts of the proposed action and the 
other options considered by the Council.
    (5) If the Council submits, on or before January 7, a 
recommendation to the Regional Director after one Council meeting, and 
the Regional Director concurs with the recommendation, the Regional 
Director shall publish the

[[Page 27747]]

Council's recommendation in the Federal Register as a proposed rule. 
The Federal Register notification of proposed action will provide for a 
30-day public comment period. The Council may instead submit its 
recommendation on or before February 1 if it chooses to follow the 
framework process outlined in paragraph (b) of this section and 
requests that the Regional Director publish the recommendation as a 
final rule. If the Regional Director concurs that the Council's 
recommendation meets the FMP objectives and is consistent with other 
applicable law and determines that the recommended management measures 
be published as a final rule, the action will be published as a final 
rule in the Federal Register. If the Regional Director concurs that the 
recommendation meets the FMP objectives and is consistent with other 
applicable law and determines that a proposed rule is warranted, and as 
a result the effective date of a final rule falls after the start of 
the fishing year on May 1, fishing may continue. However, DAS used by a 
vessel on or after May 1 will be counted against any DAS allocation the 
vessel ultimately receives for that year.
    (6) If the Regional Director concurs in the Council's 
recommendation, a final rule shall be published in the Federal Register 
on or about April 1 of each year, with the exception noted in paragraph 
(a)(5) of this section. If the Council fails to submit a recommendation 
to the Regional Director by February 1 that meets the FMP goals and 
objectives, the Regional Director may publish as a proposed rule one of 
the options reviewed and not rejected by the Council, provided that the 
option meets the FMP objective and is consistent with other applicable 
law. If, after considering public comment, the Regional Director 
decides to approve the option published as a proposed rule, the action 
will be published as a final rule in the Federal Register.
    (b) Within season management action. The Council may, at any time, 
initiate action to add or adjust management measures if it finds that 
action is necessary to meet or be consistent with the goals and 
objectives of the FMP.
    (1) Adjustment process. After a management action has been 
initiated, the Council shall develop and analyze appropriate management 
actions over the span of at least two Council meetings. The Council 
shall provide the public with advance notice of the availability of 
both the proposals and the analysis, and opportunity to comment on them 
prior to and at the second Council meeting. The Council's 
recommendation on adjustments or additions to management measures must 
come from one or more of the following categories:
    (i) DAS changes.
    (ii) Effort monitoring.
    (iii) Data reporting.
    (iv) Possession limits.
    (v) Gear restrictions.
    (vi) Closed areas.
    (vii) Permitting restrictions.
    (viii) Crew limits.
    (ix) Minimum fish sizes.
    (x) Onboard observers.
    (xi) Minimum hook size and hook style.
    (xii) The use of crucifiers in the hook fishery.
    (xiii) Fleet sector shares.
    (xiv) Recreational fishing measures.
    (xv) Area closures and other appropriate measures to mitigate 
marine mammal entanglements and interactions.
    (xvi) Any other management measures currently included in the FMP.
    (2) Council recommendation. After developing management actions and 
receiving public testimony, the Council shall make a recommendation to 
the Regional Director. The Council's recommendation must include 
supporting rationale, and, if management measures are recommended, an 
analysis of impacts, and a recommendation to the Regional Director on 
whether to publish the management measures as a final rule. If the 
Council recommends that the management measures should be published as 
a final rule, the Council must consider at least the following factors 
and provide support and analysis for each factor considered:
    (i) Whether the availability of data on which the recommended 
management measures are based allows for adequate time to publish a 
proposed rule, and whether regulations have to be in place for an 
entire harvest/fishing season.
    (ii) Whether there has been adequate notice and opportunity for 
participation by the public and members of the affected industry in the 
development of the Council's recommended management measures.
    (iii) Whether there is an immediate need to protect the resource.
    (iv) Whether there will be a continuing evaluation of management 
measures adopted following their implementation as a final rule.
    (3) Regional Director action. If the Council's recommendation 
includes adjustments or additions to management measures, and if after 
reviewing the Council's recommendation and supporting information:
    (i) The Regional Director concurs with the Council's recommended 
management measures and determines that the recommended management 
measures may be published as a final rule based on the factors 
specified in paragraph (b)(2) of this section, the action will be 
published in the Federal Register as a final rule; or
    (ii) The Regional Director concurs with the Council's 
recommendation and determines that the recommended management measures 
should be published first as a proposed rule, the action will be 
published as a proposed rule in the Federal Register. After additional 
public comment, if the Regional Director concurs with the Council 
recommendation, the action will be published as a final rule in the 
Federal Register; or
    (iii) The Regional Director does not concur, the Council will be 
notified, in writing, of the reasons for the non-concurrence.
    (c) Nothing in this section is meant to derogate from the authority 
of the Secretary of Commerce to take emergency action under section 
305(e) of the Magnuson Act.
    17. Figure 5 to part 651 is removed and reserved, and Figures 1, 3, 
and 4 to part 651 are revised to read as follows:

BILLING CODE 3510-22-W

[[Page 27748]]

[GRAPHIC] [TIFF OMITTED] TR31MY96.117



Figure 1 to Part 651--Regulated Mesh Area

[[Page 27749]]

[GRAPHIC] [TIFF OMITTED] TR31MY96.118



Figure 3 to Part 651--Closed Areas

[[Page 27750]]

[GRAPHIC] [TIFF OMITTED] TR31MY96.119



Figure 4 to Part 651--Exemption Areas

[FR Doc. 96-13707 Filed 5-30-96; 8:45 am]
BILLING CODE 3510-22-W