[Federal Register Volume 64, Number 38 (Friday, February 26, 1999)]
[Rules and Regulations]
[Pages 9449-9451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4852]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 697
[Docket No. 990119023-9023-01; I.D. 111898B]
RIN 0648-AL38
Atlantic Sturgeon Fishery; Moratorium in Exclusive Economic Zone
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Direct final rule; request for comments.
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SUMMARY: NMFS issues this direct final rule prohibiting the possession
in, or harvest from, the exclusive economic zone (EEZ) of Atlantic
sturgeon from Maine through Florida. The intent of the rule is to
provide protection for the overfished stock of Atlantic sturgeon, to
ensure the effectiveness of state regulations, and to aid in the
rebuilding of the stock.
DATES: This rule is effective May 27, 1999 without further action,
unless an adverse comment or a notice of intent to submit an adverse
comment is received by March 29, 1999. If an adverse comment or a
notice of intent is received, the NMFS will publish a timely withdrawal
of the rule in the Federal Register.
ADDRESSES: Comments on the direct final rule should be sent to, and
copies of supporting documents, including an Environmental Assessment/
Regulatory Impact Review, are available from Richard H. Schaefer,
Chief, Staff Office for Intergovernmental and Recreational Fisheries,
National Marine Fisheries Service, 8484 Georgia Avenue, Suite 425,
Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Paul Perra, 301-427-2014.
SUPPLEMENTARY INFORMATION:
Background
Section 804(b) of the Atlantic Coastal Fisheries Cooperative
Management Act (ACFCMA), 16 U.S.C. 5101 et seq., states that, in the
absence of an approved and implemented Fishery Management Plan under
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) (16 U.S.C. 1801 et seq.) and after consultation with the
appropriate Fishery Management Council(s), the Secretary of Commerce
(Secretary) may implement regulations to govern fishing in the EEZ,
i.e., from 3 to 200 nautical miles. These regulations must be (1)
necessary to support the effective implementation of an Interstate
Fishery Management Plan (ISFMP) developed by the Atlantic States Marine
Fisheries Commission (Commission) and (2) consistent with the national
standards set forth in section 301 of the Magnuson-Stevens Act (16
U.S.C. 1851).
Historically, Atlantic sturgeon were managed by individual states
until 1989 when the Commission adopted an Atlantic Sturgeon ISFMP
(Atlantic Sturgeon Plan) in response to low levels of Atlantic
sturgeon. The Commission approved and implemented Amendment 1 to its
Atlantic Sturgeon Plan on June 11, 1998. Amendment 1 proposed to
restore Atlantic sturgeon spawning stocks to population levels that
will provide for sustainable fisheries. Its primary objective is to
establish 20 protected year classes in each and every spawning stock,
which should eventually allow for controlled commercial harvests on
self-sustaining spawning stocks. Amendment 1 mandates that all Atlantic
coastal jurisdictions close their Atlantic sturgeon fisheries,
implement a stock monitoring program, adhere to stocking and
aquaculture guidelines, and establish a means for tracking importation
of foreign Atlantic sturgeon products.
All Atlantic coastal marine fisheries jurisdictions closed their
Atlantic sturgeon fisheries prior to the passage of Amendment 1.
Amendment 1 mandates that these closures remain in place until the
Commission determines that the stocks have recovered. Because of the
species' life history (7 to 30 years for females to reach maturity) and
depletion of Atlantic sturgeon stocks, the Commission believes the
Atlantic sturgeon recovery will take about 41 years. Jurisdictions that
do not comply with Amendment 1 could face federally imposed closures on
their fisheries under section 807(c) of the ACFCMA. In addition,
Amendment 1 requests that the Secretary prohibit the possession of
Atlantic sturgeon in the EEZ, and monitor bycatch of Atlantic sturgeon
in the dogfish and monkfish fisheries and, if such bycatch is
excessive, implement measures to reduce the bycatch.
To support the Commission's Atlantic sturgeon conservation efforts
under Amendment 1, Federal regulations are needed in the EEZ to provide
protection for Atlantic sturgeon in Federal waters, and to close
loopholes in state landing laws that would exist without the Federal
regulations. No Federal regulations currently exist to control Atlantic
sturgeon fishing in the EEZ. Therefore, while no landing of the species
would be allowed in Atlantic coastal jurisdictions, it can be taken in
the EEZ, where it can be legally killed, consumed, or shipped to a non-
Atlantic coastal jurisdiction for sale. Atlantic sturgeon products,
especially eggs sold as caviar, bring a high price, i.e., about $50 per
pound, to fishermen. Therefore, law enforcement efforts to maintain
closed fisheries are a very important part of the management for this
species. A Federal regulation in the EEZ to prohibit possession of
Atlantic sturgeon will improve the ability of state law enforcement
agencies to enforce their own Atlantic sturgeon state closures.
Furthermore, a Federal prohibition on possession should close any
``loopholes'' in state laws if persons take Atlantic sturgeon in the
EEZ and attempt to land them in states. This rule should deter poaching
of Atlantic sturgeon in the EEZ by imposing Federal penalties, which
are generally stricter than state penalties, on individuals who do not
comply with the EEZ closure.
The U.S. Department of Commerce's National Marine Fisheries Service
and U.S. Department of the Interior's Fish and Wildlife Service have
recently conducted an Endangered Species Status Review (Status Review)
of the
[[Page 9450]]
species in response to a Listing Petition received in 1997. The results
of that review have determined that the species does not warrant
listing as threatened or endangered under the Endangered Species Act at
this time.
Purpose
Atlantic sturgeon have been directly harvested utilizing various
gears including gill nets, traps, pound nets, otter trawls, harpoons,
trammel nets, weirs, stake row nets, and seines. The Commission's
Atlantic Sturgeon Plan stated that recreational hook-and-line fishing
in the United States is insignificant, but noted an emerging directed
sport fishery for Atlantic sturgeon in the Canadian Maritimes. However,
there is no evidence that a recreational fishery ever developed in the
United States for Atlantic sturgeon. Many authors have cited over-
harvesting as the single major cause of the precipitous decline in
abundance of Atlantic sturgeon.
Directed Harvest
At one time, fisheries for sturgeon were concentrated during the
spawning migration in every major coastal river along the Atlantic
Coast. By 1860, commercial fisheries were established coastwide in
Delaware, Georgia, Maryland, New Jersey, New York, North Carolina,
Pennsylvania, South Carolina, and Virginia. Records of landings were
first kept in 1880, when the U.S. Fisheries Commission started
compiling statistical information on commercial fishing landings.
Harvest in these early years was heavy, and approximately 3,350 mt (7.4
million lb) were landed in 1890. The majority of the fishery for a 50-
year time period (from 1870 to 1920) was conducted on the Delaware
River and in the Chesapeake Bay System, with New Jersey and Delaware
reporting the greatest landings. Landings reported until 1967 likely
included both Atlantic and shortnose sturgeon. Shortnose sturgeon were
granted Federal protection in 1967, and, therefore, harvest became
illegal in subsequent years. During the 1970's, the average catch was
approximately 68 mt (150,000 lb) per year, and, in the 1980's, the
average catch was approximately 56.7 mt (125,000 lb) per year. By the
1980's, the focus of fishing effort shifted to South Carolina, North
Carolina, and Georgia, which accounted for nearly 80 percent of the
total U.S. landings. Catch between 1990 and 1996 was centered in the
Hudson River and coastal New York and New Jersey. In 1990 and 1991, the
average catch was approximately 90.7 mt (200,000 lb) per year. Since
1991, the catch has declined yearly to a low of 0.38 mt (843 lb) in
1997.
In a March, 1998, Stock Status Review, the Commission indicated
that the Atlantic sturgeon spawning stocks of the entire Atlantic Coast
are severely overfished, that, in some cases, they may have been
extirpated (Connecticut River in New England and St. Johns River in
Florida), and that fishing mortality had significantly contributed to
the decline of the stocks. Little coast-wide information is available
on the populations and survival of young Atlantic sturgeon. However,
there are some spawning stocks in which reproduction appears to be
occurring (Hudson River, NY; Delaware River, DE and NJ; James and
possibly York Rivers, VA; Roanoke and Cape Fear Rivers, NC; Waccamaw,
Santee, Ashepoo, Combahee, Edisto, Savannah and possibly Cooper Rivers,
SC; and Savannah and Altamaha Rivers, GA). Also, a few south Atlantic
river systems, which have had closed Atlantic sturgeon fisheries for a
number of years, appear to be experiencing some rebuilding of juvenile
populations.
Bycatch
The Stock Status Review also found that the known bycatch of
Atlantic sturgeon is not a significant threat to the stocks. However,
because any mortality may slow the recovery period for the species,
each Atlantic coast state should carry out monitoring programs for
Atlantic sturgeon bycatch to insure that the magnitude and effects of
bycatch can be determined.
The direct final rule would prohibit the harvest (catch and
retention) of Atlantic sturgeon from the Atlantic coast EEZ. The rule
provides the strongest possible conservation measure under the ACFCMA,
is easy to understand and enforce, and is in the best long-term
economic interests of both commercial and recreational fishermen. It
eliminates any claim that Atlantic sturgeon were caught in the EEZ,
when fishermen might otherwise have caught fish illegally in state
waters. Enforcement of the prohibition is straightforward because
possession of Atlantic sturgeon on board a vessel in the EEZ would be a
violation of the regulation. The prohibition also includes possession
of Atlantic sturgeon taken as incidental catch (bycatch) while fishing
for other species, since such bycatch must be released to the water as
soon as possible. It allows for the development of a stock rebuilding
program and, therefore, for the resumption of the fishery in the
future.
NMFS believes that this direct final rule is compatible with the
Commission's efforts to protect Atlantic sturgeon in state waters.
Under Amendment 1 to the Atlantic Sturgeon Plan, Atlantic sturgeon may
not be landed in any of the Atlantic Coastal states, and the Commission
anticipates a 41-year rebuilding program. This direct final rule would
prohibit the possession in or the harvest from the EEZ of Atlantic
sturgeon from Maine through Florida.
Classification
This rule is consistent with section 5103b of the Atlantic Coastal
Fisheries Cooperative Management Act.
Under the authority of 5 U.S.C. 553(b)(B), NMFS is waiving the
requirement to provide prior notice and an opportunity for public
comment as these procedures are unnecessary. All Atlantic Coastal
states through the Commission's Amendment 1 to the Atlantic Sturgeon
Plan have closed their Atlantic sturgeon fisheries as of June 11, 1998,
and anticipate a 41-year closure. Therefore, the Assistant
Administrator for Fisheries, NOAA, finds good cause for waiving prior
notice and an opportunity for public comment. NMFS believes this action
is non-controversial and does not expect to receive any comments.
However, should NMFS receive an adverse comment or a notice of intent
to submit an adverse comment, NMFS will withdraw this rule and issue a
proposed rule with an opportunity for public comment.
Because prior notice and opportunity for public comment are not
required for this rule by 5 U.S.C. 553, or any other law, the
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
et seq., are inapplicable.
The direct final rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 697
Fisheries, Fishing, Intergovernmental relations.
Dated: February 22, 1998.
Andrew A. Rosenberg, Ph.D.,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR Chapter VI, part
697, is amended as follows:
PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT
1. The authority citation for 50 CFR part 697 continues to read as
follows:
Authority: 16 U.S.C. 1851 note; 16 U.S.C. 5101 et seq. 2. In
Sec. 697.2, the definition for ``Directed fishery'' is removed, the
definition for ``Retain'' is revised, and the definitions
[[Page 9451]]
for ``Atlantic sturgeon,'' ``Natural Atlantic sturgeon,'' and
``Stocked Atlantic sturgeon,'' are added in alphabetical order to
read as follows:
Sec. 697.2 Definitions.
* * * * *
Atlantic sturgeon means members of stocks or populations of the
species Acipenser oxyrhynchus.
* * * * *
Natural Atlantic sturgeon means any Atlantic sturgeon that is not
the result of a commercial aquaculture operation, and includes any
naturally occurring Atlantic sturgeon (those Atlantic sturgeon
naturally spawned and grown in rivers and ocean waters of the Atlantic
Coast).
* * * * *
Retain means to fail to return any species specified under
Sec. 697.7 of this chapter to the sea immediately after the hook has
been removed or after the species has otherwise been released from the
capture gear.
* * * * *
Stocked Atlantic sturgeon means any Atlantic sturgeon cultured in a
hatchery that is placed in rivers and ocean waters of the Atlantic
Coast to enhance the Atlantic sturgeon spawning stocks.
* * * * *
3. In Sec. 697.7, paragraph (d) is added to read as follows:
Sec. 697.7 Prohibitions.
* * * * *
(d) Atlantic sturgeon fishery. In addition to the prohibitions set
forth in Sec. 600.725, the following prohibitions apply. It is unlawful
for any person to do any of the following:
(1) Fish for Atlantic sturgeon in the EEZ.
(2) Harvest any Atlantic sturgeon from the EEZ.
(3) Possess any natural or stocked Atlantic sturgeon in or from the
EEZ.
(4) Retain any Atlantic sturgeon taken in or from the EEZ.
(5) Possess any natural Atlantic sturgeon parts, including Atlantic
sturgeon eggs, in the EEZ.
[FR Doc. 99-4852 Filed 2-25-99; 8:45 am]
BILLING CODE 3510-22-F
