[Federal Register Volume 59, Number 36 (Wednesday, February 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3962]
[[Page Unknown]]
[Federal Register: February 23, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 625
[Docket No. 940241-4041; I.D. 013194A]
RIN 0648-AG00
Summer Flounder Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule.
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SUMMARY: NMFS issues this proposed rule to implement Amendment 6 to the
Fishery Management Plan for the Summer Flounder Fishery (FMP). This
amendment would allow vessels with moratorium permits to carry on board
nets other than the minimum mesh size once the seasonal thresholds for
summer flounder are retained, modify the schedule for establishing the
annual management measures, provide for an experimental fishery to
gather data, prohibit the use of twisted mesh, prohibit interference
with any observers, and modify the dimensions of the fish box or tote.
The intended effect of this rule is to relieve the industry of a
regulatory restriction, use the best available data to assess the
fishery, establish conformity with other regulations in the same
fishing area, and protect observers.
DATES: Comments on the proposed rule must be received on or before
April 11, 1994.
ADDRESSES: Comments on the proposed rule, Amendment 6, or supporting
documents should be sent to the Director, National Marine Fisheries
Service, Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA
01930-2298. Mark the outside of the envelope ``Comments on Summer
Flounder Plan.''
Copies of Amendment 6, the environmental assessment, and the
regulatory impact review are available from David R. Keifer, Executive
Director, Mid-Atlantic Fishery Management Council, room 2115 Federal
Building, 300 S. New Street, Dover, DE 19901-6790.
FOR FURTHER INFORMATION CONTACT:
Myles Raizin, Resource Policy Analyst, 508-281-9104.
SUPPLEMENTARY INFORMATION:
Background
Amendment 6 was prepared by the Mid-Atlantic Fishery Management
Council (Council) in consultation with the Atlantic States Marine
Fisheries Commission and the New England and South Atlantic Fishery
Management Councils. A notice of availability for the proposed
amendment was published in the Federal Register on February 4, 1994 (59
FR 5384). Copies of the amendment are available from the Council upon
request [see ADDRESSES]. The amendment revises management of the summer
flounder (Paralichthys dentatus) fishery pursuant to the Magnuson
Fishery Conservation and Management Act, as amended (Magnuson Act).
The management unit continues to be summer flounder in U.S. waters
in the western Atlantic Ocean from North Carolina northward. The
objectives of the FMP as it would be amended continue to be: (1) Reduce
fishing mortality in the summer flounder fishery to assure that
overfishing does not occur; (2) reduce fishing mortality on immature
summer flounder to increase spawning stock biomass; (3) improve the
yield from the fishery; (4) promote compatible management regulations
between state and Federal jurisdictions; (5) promote uniform and
effective enforcement of regulations; and (6) minimize regulations to
achieve the management objectives stated above.
Amendment 1 to the FMP added a definition of overfishing. Amendment
2, which contained the large majority of the management measures
implemented by the current regulations, is discussed below. Amendment 3
revised the boundary of the exemption area in the Northeast and
increased the minimum mesh threshold to 200 pounds during the winter
fishery from November 1 to April 30. Amendment 4 modified the state-
specific percentage shares that allocate the coastwide annual
commercial quota to the States. Amendment 5 empowered States to combine
and transfer commercial quota with the approval of the Director,
Northeast Region, NMFS (Regional Director).
Amendment 2 to the FMP instituted a broad spectrum of measures to
stop overfishing and to allow the stock to rebuild. These measures are
to be revised, if necessary, each year to meet a mortality reduction
schedule. One of these measures is a minimum mesh requirement in the
cod end of an otter trawl net when certain amounts of summer flounder
are retained (i.e., 100 pounds or more from May through October and 200
pounds or more from November through April). Since the regulations
allow only nets that meet the minimum mesh size to be on board once the
threshold amounts of summer flounder are retained, vessel operators are
faced with several choices. The vessel may sail with only nets that
meet the minimum mesh requirement and gamble on catching species of a
certain size, including summer flounder, that are subject to capture
with the minimum mesh size. Vessel operators may put nets with
different size mesh on board and fish for several species of fish,
including those subject to capture with small mesh, on the same trip.
To conduct this mixed trawl fishery, vessel operators have to discard
any amount of summer flounder that would result in the retention of the
threshold amounts triggering the minimum mesh requirement. If a vessel
operator pursuing a mixed trawl fishery wants to continue fishing for
summer flounder in excess of the threshold amounts, he/she has to
return the vessel to port to offload all nets that do not meet the
minimum mesh requirement and return to the fishing grounds to resume
fishing.
Certain industry members (industry) approached the Council and
claimed that the one-mesh-on-board provision is creating a hardship for
those in the mixed trawl fishery without the concomitant benefits to
those enforcing the minimum mesh requirement. Industry made a
convincing case that the minimum mesh requirement could easily be
frustrated by lining a legal size cod end with another legal size cod
end, which could be located anywhere on deck, or by cinching off the
net above the portion of the net with regulated mesh. As an
alternative, the industry proposed that the one-mesh on-board provision
be replaced with the net stowage provisions in the regulations
governing the Northeast Multispecies fishery, in which a number of
summer flounder fishermen participate.
The Council, after hearing industry testimony, reviewing public
hearing comments, and engaging in discussion, decided at its December
meeting to adopt Amendment 6 and replace the one-mesh-on-board
provision with the mesh stowage provision of the Northeast Multispecies
regulations. Amendment 6, if approved, would allow vessel operators to
carry several nets with different size mesh on board their vessels and
exceed the minimum mesh seasonal thresholds, as long as all nets that
do not meet the minimum mesh requirement are appropriately stowed once
the minimum mesh threshold amounts of summer flounder are retained.
Once stowed, these nets cannot be used for the remainder of the fishing
trip.
A regulation that would allow the Regional Director to authorize an
experimental fishery to collect management information in certain
circumstances was recommended by the Council for inclusion in this
proposed rule to give effect to section 9.4.2 of the FMP regarding
information and data needs. The Council is particularly interested in
having additional mesh studies conducted to augment the results of the
mesh studies done in New York and New Jersey. However, the Council was
firm in its intent that no experimental fishery should result in a
quota being exceeded. This restriction would maintain the integrity of
the mortality reduction schedule, the central feature of Amendment 2.
The Council also adopted for inclusion in this proposed rule a
prohibition on the use of twisted mesh. Nets constructed of twisted
mesh, when towed, do not conform to the minimum mesh requirement and
violate the prohibition found at 625.8(a)(6). The addition of this
prohibition would conform the summer flounder regulations with the
Multispecies regulations. Such conformity is desirable since
multispecies and summer flounder can be caught on the same fishing
trip. The Council adopted another provision to modify the dimensions of
the fish box or tote referred to in Sec. 625.25(d), to conform to those
used in the Northeast Multispecies regulations.
The prohibition found at Sec. 625.8(c)(9) would be revised to
prohibit interference with a sea sampler or observer on board a vessel
for any purpose, and not just for the activities under Sec. 625.26 and
Sec. 625.27, as currently expressed in this prohibition. Observers
placed on board a vessel engaged in an experimental fishery should have
the same protection afforded to other observers and sea samplers.
The annual fishing measures schedule found at Sec. 625.20(c) would
be modified by this proposed rule. The date on which a certain measure
is published in the Federal Register would be changed to a later time
to allow for more current data to be included in the assessment and
monitoring process. The total allowable removals from the stock,
translated into a coastwide commercial quota and a recreational harvest
limit, as well as additional measures for the commercial fishery must
be published on or before October 15 of each year. This is the latest
date that these measures can be set and allow states an opportunity to
implement them on January 1 of each year. Unlike the commercial
fishery, which operates year round, the recreational fishery ceases
from October until May. Marine recreational survey data, which allow
the recreational harvest limit to be converted into a possession limit
and a recreational fishing season, are not available until well after
the October 15 date. Sometimes, these data are not available until the
beginning of the following year. Thus, the date on which additional
measures for the recreational fishery must be published would be
changed to February 15 of each year.
Classification
Section 304(a)(1)(D)(ii) of the Magnuson Act requires the Secretary
of Commerce (Secretary) to publish regulations proposed by a Council
within 15 days of the receipt of the amendment and proposed
regulations. At this time, the Secretary has not determined that the
amendment these rules would implement is consistent with the national
standards, other provisions of the Magnuson Act, and other applicable
law. The Secretary, in making that determination, will take into
account the information, views, and comments received during the
comment period.
The General Counsel of the Department of Commerce certified to the
Small Business Administration that this proposed rule, if adopted, will
not have a significant economic impact on a substantial number of small
entities for the reasons set forth in the regulatory impact review
prepared by the Council, a copy of which may be obtained from the
Council at the address listed above. As a result, a regulatory
flexibility analysis was not prepared. The replacement of the one-mesh-
on-board restriction with the mesh stowage provision alleviates a
regulatory burden on the industry, enabling the industry to operate
with greater economic efficiency. The amendment's conformance to the
Northeast Multispecies regulations will also standardize certain
regulatory requirements imposed on the industry and can be reviewed as
relieving a restriction. Revising the schedule for publication of
management measures will enable the Council and ASMFC to use the best
available data as the basis of their deliberations. This should aid in
rebuilding the stock for the benefit of industry. The experimental
fishing provision should also aid in assessing the validity of certain
measures which, in turn, should assist in rebuilding the stock.
This rule is not subject to review under E.O. 12866.
List of Subjects in 50 CFR Part 625
Fisheries, Reporting and recordkeeping requirements.
Dated: February 16, 1994.
Charles Karnella,
Acting Deputy Assistant Administrator for Fisheries, National Marine
Fisheries Service.
For the reasons set forth in the preamble, 50 CFR part 625 is
proposed to be amended to read as follows:
PART 625--SUMMER FLOUNDER FISHERY
1. The authority citation for part 625 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. Section 625.8, paragraphs (a)(6), (a)(7), and (c)(9) are revised
and a new paragraph (e) is added to read as follows:
Sec. 625.8 Prohibitions.
(a) * * *
(6) fish with or possess nets or netting that do not meet the
minimum mesh requirement, or that are modified, obstructed or
constricted, if subject to the minimum mesh requirement specified in
Sec. 625.24, unless the nets or netting are stowed in accordance with
Sec. 625.24(f);
(7) fish with or possess nets or netting that do not meet the
minimum mesh requirement, or that are modified, obstructed or
constricted, if fishing with an exempted net described in Sec. 625.24,
unless the nets or netting are stowed in accordance with
Sec. 625.24(f);
* * * * *
(c) * * *
(9) Assault, resist, oppose, impede, harass, intimidate, or
interfere with or bar by command, impediment, threat, coercion or
refusal of reasonable assistance of an observer or sea sampler
conducting his or her duties aboard a vessel; or
* * * * *
(e) It is unlawful for any person to violate any terms of a letter
authorizing experimental fishing pursuant to Sec. 625.28 or to fail to
keep such letter aboard the vessel during the time period of the
experimental fishing.
3. Section 625.20, paragraph (c) is revised to read as follows:
Sec. 625.20 Catch quotas and other restrictions.
* * * * *
(c) Annual fishing measures. The Demersal Species Committee shall
review the recommendations of the Summer Flounder Monitoring Committee.
Based on these recommendations and any public comment, the Demersal
Species Committee shall make its recommendations to the Council with
respect to the measures necessary to assure that the applicable fishing
mortality rate specified in paragraph (a) of this sectio is not
exceeded. The Council shall review these recommendations. Based on
these recommendations, and any public comment, the Council shall make
recommendations to the Regional Director with respect to the measures
necessary to assure that the fishing mortality rates specified in
paragraph (a) of this section are not exceeded. Included in the
recommendation will be supporting documents as appropriate, concerning
the environmental and economic impacts of the proposed action. The
Regional Director will review these recommendations and any
recommendations of the Commission. After such review, the Regional
Director will publish in the Federal Register a proposed rule on or
before October 15 to implement a coastwide commercial quota and
recreational harvest limit and additional management measures for the
commercial fishery, and will publish in the Federal Register a proposed
rule on or before February 15 to implement additional management
measures for the recreational fishery, if he determines that these
measures are necessary to assure that the fishing mortality rates
specified in paragraph (a) of this section are not exceeded. After
considering public comment on a proposed rule, the Regional Director
will publish a final rule in the Federal Register to implement the
measures necessary to assure that the fishing mortality rates specified
in paragraph (a) of this section are not exceeded.
* * * * *
4. Section 625.24, is amended by removing paragraph (c), by
redesignating paragraphs (d) and (e) as paragraphs (c) and (d), and by
adding new paragraphs (e) and (f) to read as follows:
Sec. 625.24 Gear restrictions.
* * * * *
(e) Mesh obstruction or constriction. (1) A fishing vessel may not
use any mesh configuration, mesh construction, or other means on or in
the top of the net, as defined in paragraph (d) of this section, if it
obstructs the meshes of the net in any manner.
(2) No vessel may use a net capable of catching summer flounder in
which the bars entering or exiting the knots twist around each other.
(f) Stowage of nets. Otter trawl vessels retaining 100 pounds or
more of summer flounder between May 1 and October 31 or 200 pounds or
more of summer flounder between November 1 and April 30 and subject to
the minimum mesh requirement may not have available for immediate use
any net, or any piece of net, not meeting the minimum mesh size
requirement, or mesh that is rigged in a manner that is inconsistent
with the minimum mesh size. A net that conforms to one of the following
specifications and that can be shown not to have been in recent use is
considered not to be ``available for immediate use'':
(1) A net stowed below deck, provided:
(i) It is located below the main working deck from which the net is
deployed and retrieved;
(ii) The towing wires, including the ``leg'' wires, are detached
from the net;
(iii) It is fan-folded (flaked) and bound around its circumference.
(2) A net stowed and lashed down on deck, provided:
(i) It is fan-folded (flaked) and bound around its circumference.
(ii) It is securely fastened to the deck or rail of the vessel; and
(iii) The towing wires, including the leg wires, are detached from
the net.
(3) A net that is on a reel and is covered and secured, provided:
(i) The entire surface of the net is covered with canvas or other
similar material that is securely bound;
(ii) The towing wires, including the leg wires, are detached from
the net; and
(iii) The codend is removed from the net and stored below deck.
(4) Nets that are secured in a manner approved by the Regional
Director, provided that the Regional Director has reviewed the
alternative manner of securing nets and has published that alternative
in the Federal Register.
* * * * *
5. Section 625.25, paragraph (d) is revised to read as follows:
Sec. 625.25 Possession limit.
* * * * *
(d) Owners or operators of otter trawlers issued a permit
(including a moratorium permit) under Sec. 625.4, and fishing with, or
possessing on board, nets or pieces of net that do not meet the minimum
mesh requirements and that are not stowed in accordance with
Sec. 625.24(f), may not retain 100 pounds (45.3 kg) or more of summer
flounder between May 1 and October 31, or 200 pounds (90.6 kg) or more
of summer flounder between November 1 and April 30. Summer flounder on
board these vessels shall be stored in a standard 100-pound (45.3 kg)
tote that has a liquid capacity of 18.2 gallons (70 liters), or a
volume of not more than 4,320 cubic inches (2.5 cubic feet or 70.79
cubic cm), and that is readily available for inspection.
6. Section 625.28 is added to read as follows:
Sec. 625.28 Experimental fishery.
(a) The Regional Director, in consultation with the Executive
Director of the Council, may exempt any person or vessel from the
requirements of this part for the conduct of experimental fishing
beneficial to the management of the summer flounder resource or
fishery.
(b) The Regional Director may not grant such exemption unless he/
she determines that the purpose, design, and administration of the
exemption is consistent with the objectives of the FMP, the provisions
of the Magnuson Act, and other applicable law, and that granting the
exemption will not:
(1) Have a detrimental effect on the summer flounder resource and
fishery; or
(2) Cause any quota to be exceeded; or
(3) Create significant enforcement problems.
(c) Each vessel participating in any exempted experimental fishing
activity is subject to all provisions of this FMP except those
necessarily relating to the purpose and nature of the exemption. The
exemption will be specified in a letter issued by the Regional Director
to each vessel participating in the exempted activity. This letter must
be carried aboard the vessel seeking the benefit of such exemption.
[FR Doc. 94-3962 Filed 2-17-94; 8:45 am]
BILLING CODE 3510-22-M
