[Federal Register Volume 59, Number 92 (Friday, May 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11651]
[[Page Unknown]]
[Federal Register: May 13, 1994]
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DEPARTMENT OF COMMERCE
50 CFR Part 651
[Docket No. 940532-4132; I.D. 041994D]
Northeast Multispecies Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS issues this proposed rule to implement a revised part of
Amendment 5 to the Northeast Multispecies Fishery Management Plan (FMP)
for the winter flounder fishery (revised winter flounder exemption)
that was initially disapproved on September 30, 1993. The New England
Fishery Management Council (Council) has revised a provision that would
exempt fishermen from some regulations for the winter flounder fishery,
under certain conditions, if they are fishing only in state waters. The
intended effect is to ensure adequate protection for winter flounder
stocks, while minimizing the regulatory burden on fishermen.
DATES: Comments on this proposed rule must be received by June 4, 1994.
ADDRESSES: Send comments on the revised winter flounder exemption,
proposed rule or supporting documents to Allen E. Peterson, Acting
Regional Director, NMFS, 1 Blackburn Drive, Gloucester, MA 01930. Mark
the outside of the envelope ``Comments on Winter Flounder Exemption.''
Copies of the revised winter flounder exemption, including the
Environmental Assessment, are available upon request from Douglas G.
Marshall, Executive Director, New England Fishery Management Council, 5
Broadway (Route 1), Saugus, MA 01906.
FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, NMFS, Fishery Policy
Analyst, 508-281-9252.
SUPPLEMENTARY INFORMATION:
Background
The Council submitted Amendment 5 to the FMP on September 27, 1993.
Two measures in the amendment were disapproved on September 30, 1993--a
haddock possession limit, and the provisions for winter flounder
fishing in state waters. The remainder of Amendment 5 was approved on
January 3, 1994. Pursuant to section 304(b)(3)(A) of the Magnuson
Fishery Conservation and Management Act (Magnuson Act), the Council has
submitted the revised winter flounder exemption as described in this
proposed rule. The Council's submission of a revised haddock possession
limit is not contained in this action.
The disapproved measure for winter flounder established an
exemption to the minimum mesh size and minimum fish size regulations
when fishing for winter flounder in state waters, provided that a given
state's regulations conformed with the Atlantic States Marine Fisheries
Commission's (ASMFC) Winter Flounder Plan (ASMFC Plan). The original
submission for winter flounder was disapproved because this provision
was added to Amendment 5 without adequate analysis, was poorly defined,
and would likely have increased mortality of winter flounder and other
multispecies.
The revised winter flounder exemption, as described in this
proposed rule, lists a detailed set of criteria under which a vessel
holding a Federal Northeast multispecies permit may fish for winter
flounder with mesh smaller than the minimum mesh requirement in the
FMP, and retain winter flounder smaller than the minimum fish size for
that species in the FMP.
Currently, Federal regulations for winter flounder apply to all
federally permitted vessels whether they are fishing in state waters or
Federal waters. When a federally permitted vessel is fishing for winter
flounder in state waters, the more restrictive of either the state or
Federal regulations applies. Thus, even if an overall state management
program is more restrictive, an individual Federal regulation, such as
a minimum mesh size, applies if it is more restrictive than the
individual state regulation.
The regulations implementing Amendment 5 to the FMP (59 FR 9872,
March 1, 1994), increased the minimum mesh size for fishing for any of
the regulated multispecies finfish, including winter flounder, and
applied it throughout the range of the species. Prior to Amendment 5,
the minimum mesh size was 5\1/2\ inches (13.97 cm) in the Gulf of
Maine, on Georges Bank, and a part of Southern New England, while
elsewhere there was no minimum net mesh size. Under Amendment 5, the
minimum mesh size requirement is 6 inches (15.24 cm) throughout the net
in the Gulf of Maine and on Georges Bank, as of May 1, 1994. The
minimum mesh size requirement is 5\1/2\ inches (13.97 cm) throughout
the net in Southern New England in 1994, remaining 5\1/2\ inch (13.97
cm) diamond and increasing to 6-inch (15.24 cm) square in 1995, and
thereafter. In the mid-Atlantic, the minimum mesh size requirement is
5\1/2\ inches (13.97 cm) as described in the summer flounder
regulations under 50 CFR 625.24(a). Also under the amendment, the
minimum size for winter flounder was increased from 11 inches (27.9 cm)
to 12 inches (30.5 cm).
The ASMFC Plan was approved in May, 1992. The fishing mortality
objectives of the ASMFC Plan, a maximum spawning potential (MSP) target
of 30 percent by January 1, 1995, and an MSP target of 40 percent by
January 1, 1999, are more restrictive than in the FMP for federally
managed stocks (20 percent MSP). The ASMFC Plan allows individual
states to utilize different measures to achieve these objectives. State
plans must be reviewed by the ASMFC's Winter Flounder Technical
Committee and approved by the ASMFC Winter Flounder Management Board as
meeting the management objectives.
The Council proposes the winter flounder exemption on the basis
that, while the management objectives of the ASMFC Plan are more
conservative for winter flounder than those of Amendment 5, they may be
achieved by a different set of measures than those in the FMP. Without
the proposed exemption, a vessel would have to comply with the more
restrictive elements of both the state and Federal regulations. Under
these circumstances, compliance with both state and Federal rules
simultaneously might impose an unnecessary regulatory burden on
federally permitted vessels fishing in state waters for winter flounder
that exceeds that which applies to either state-permitted vessels
fishing exclusively in state waters or federally permitted vessels
fishing in Federal waters. The purpose of the proposed action is to
alleviate the cumulative impact of the regulations on fishermen, while
still achieving the FMP's objectives for winter flounder and other
regulated species of the FMP.
The proposed rule provides that a vessel holding a Federal
multispecies permit may fish for winter flounder with mesh smaller than
that specified in the regulations governing the multispecies fishery
(50 CFR part 651), may retain winter flounder smaller than the minimum
size allowed by those regulations, and may retain more than the
possession limit of winter flounder, if certain conditions are met.
These conditions are: (1) The fishing is conducted exclusively in the
waters of the state from which the exemption certificate was obtained;
(2) the vessel has on board a certificate issued by the state agency
authorizing the vessel's participation in the state's winter flounder
fishing program and is in compliance with the applicable state laws
pertaining to minimum mesh size and minimum fish size for winter
flounder; (3) the state's winter flounder plan has been approved by the
ASMFC as being in compliance with the ASMFC Plan; (4) the state elects
in writing to the Director, Northeast Region, NMFS (Regional Director),
to participate in the exemption program; (5) the amount of regulated
species, exclusive of winter flounder, on board a vessel issued a
limited access permit that is fishing under the days-at-sea (DAS)
program or under a DAS exemption program in Sec. 651.22(d), does not
exceed the possession limit; (6) the vessel does not enter or transit
the Exclusive Economic Zone (EEZ), unless the vessel is in a designated
transit zone established by the Regional Director at the request of the
coastal state; and (7) the vessel does not enter or transit the waters
of another state, unless such other state is participating in the
exemption program described by this section and the vessel is enrolled
in that state's program.
The exemption to Federal fishery regulations being proposed in this
action would apply to minimum fish lengths, minimum mesh size, and the
regulated species possession limit of winter flounder, in certain
cases. A vessel must still comply with all other applicable Federal
fisheries regulations while fishing for winter flounder under this
exemption.
The intent of this revised version of the winter flounder exemption
is to achieve conservation objectives under the FMP and the ASMFC Plan
for winter flounder, and to meet conservation objectives under the FMP
for other regulated species of groundfish as defined in the FMP, while
still providing for the winter flounder exemption in state waters. The
Council intends that any vessel holding a Federal multispecies permit
under the FMP subject to requirements of the DAS program in the FMP
will have its fishing activity in state waters for winter flounder
credited towards its individual DAS or fleet DAS. This requirement
should minimize the effect of fishing for winter flounder in state
waters on other regulated species of groundfish.
Vessels fishing in state waters under the winter flounder exemption
program would be subject to possession limits that would vary,
depending on the vessel's gear type and the category of the Federal
multispecies permit it holds. Vessels fishing with gillnets, vessels
less than 45 ft (13.7 m) in length, and vessels under the individual or
fleet DAS program may harvest an unlimited amount of winter flounder
and not more than 500 lbs (226.8 kg) of the remaining regulated species
other than winter flounder. Vessels using hook gear still would not be
subject to any possession limits on multispecies. Vessels fishing with
a possession limit only permit would be subject to the 500-lb (226.8-
kg) possession limit for regulated species.
Classification
The General Counsel of the Department of Commerce has certified to
the Small Business Administration that this action will not have a
significant impact on a substantial number of small entities. The
action proposed by this rule will provide an undetermined amount of
regulatory relief to affected fishing vessels, all of which are small
entities. It is unknown how many vessels will choose to fish
exclusively in state waters on a given trip if this rule is
implemented.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 651
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: May 6, 1994.
Rolland A. Schmitten,
Assistant Administrator for Fisheries National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 651 is
proposed to be amended as follows:
PART 651--NORTHEAST MULTISPECIES FISHERY
1. The authority citation for part 651 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 651.4, the last sentence of paragraph (d) is revised and
a new paragraph (t) is added to read as follows:
Sec. 651.4 Vessel permits.
* * * * *
(d) * * * Except as provided for in Secs. 651.20(i) and 651.23(f),
if a requirement of this part and a management measure required by a
state or local law differ, any vessel owner permitted to fish in the
EEZ must comply with the more restrictive requirement.
* * * * *
(t) Certificate for winter flounder fishing in state waters. A
vessel permitted under this part and fishing for winter flounder in
state waters under the minimum mesh size and minimum fish size
exemptions described in Secs. 651.20(i) and 651.23(f), respectively,
must have on board a certificate issued by the state agency authorizing
the vessel's participation in the state waters winter flounder fishing
program.
3. In Sec. 651.9, paragraphs (a)(1), (b)(1), (d), (e)(2)
introductory text, (e)(14), (e)(16), (e)(17), (e)(23), and (g) are
revised to read as follows:
Sec. 651.9 Prohibitions.
(a) * * *
(1) Possess or land multispecies finfish smaller than the minimum
size as specified in Sec. 651.23, unless exempted under Sec. 651.23(f).
* * * * *
(b) * * *
(1) Possess or land more than the possession limit of regulated
species per trip as specified under Sec. 651.27, after accruing the
vessel's annual DAS allocation or when not participating under the DAS
program pursuant to Sec. 651.22.
* * * * *
(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 possession limit only permit under Sec. 651.4(c) to
possess or land, per trip, more than 500 lbs (226.8 kg) of regulated
species.
* * * * *
(e) * * *
(2) Possess or land regulated species in excess of the possession
limit, per trip, as specified in Sec. 651.27, unless:
* * * * *
(14) Fish with or possess within the areas described in
Sec. 651.20(a)(1) nets of mesh smaller than the minimum size specified
in Sec. 651.20(a)(2), unless the vessel is exempted under
Sec. 651.20(a)(3), (a)(4), or (i), or unless the vessel qualifies for
the exemption specified in paragraph (e)(1)(ii) of this section.
* * * * *
(16) Fish with or possess within the area described in
Sec. 651.20(c)(1), nets of mesh smaller than the minimum size specified
in Sec. 651.20(c)(2), unless the vessel is exempted under
Sec. 651.20(i), the vessel possesses no more regulated species than the
possession limit specified in Sec. 651.27(a), the nonconforming mesh is
stowed in accordance with Sec. 651.20(c)(4), or the vessel qualifies
for the exemption specified in paragraph (e)(1)(ii) of this section.
(17) Fish with or possess, within the area described in
Sec. 651.20(d)(1), nets of mesh smaller than the minimum size specified
in Sec. 651.20(d)(2), unless the vessel is exempted under
Sec. 651.20(i), possesses no more regulated species than the possession
limit specified in Sec. 651.27(a), the nonconforming mesh is stowed in
accordance with Sec. 651.20(c)(4), or the vessel qualifies for the
exemption specified in paragraph (e)(1)(ii) of this section.
* * * * *
(23) Import, export, transfer, land, or possess regulated species
that are smaller than the minimum sizes specified in Sec. 651.23,
unless the regulated species were harvested from a vessel that
qualifies for the exemption specified in paragraph (e)(1)(ii) of this
section or the exemption specified in Sec. 651.23(f).
* * * * *
(g) Presumption. The possession for sale of regulated species that
do not meet the minimum sizes 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 or under the exemption specified in Sec. 651.23(f)
will be sufficient to rebut the presumption. This presumption does not
apply to fish being sorted on deck.
4. In Sec. 651.20, the first sentences of paragraphs (a)(2),
(c)(2)(i), and (c)(2)(ii) are revised; paragraph (d)(2) is revised; and
paragraph (i) is added, to read as follows:
Sec. 651.20 Regulated mesh areas and restrictions on gear and methods
of fishing.
* * * * *
(a) * * *
(2) Mesh-size restrictions. Except as provided in paragraphs (a)
(3) through (5), (e), (f), and (i) of this section, the minimum mesh
size for any trawl net, sink gillnet, Scottish seine, or midwater
trawl, on a vessel, or used by a vessel fishing in the GOM/GB regulated
mesh area, shall be 6 inches (15.24 cm) diamond or square mesh
throughout the entire net. * * *
* * * * *
(c) * * *
(2) Mesh-size restrictions. (i) For 1994, except as provided in
paragraphs (e), (f) and (i) of this section, the minimum mesh size for
any trawl net, sink gillnet, Scottish seine, or midwater trawl, in use,
or available for use as described under paragraph (c)(4) of this
section, by a vessel fishing in the Southern New England regulated mesh
area, shall be 5\1/2\ inches (13.97 cm) diamond or square mesh
throughout the net. * * *
(ii) For 1995 and thereafter, except as provided in paragraphs (e),
(f) and (i) of this section, the minimum mesh size for any trawl net,
sink gillnet, Scottish seine, or midwater trawl, in use, or available
for use as described under paragraph (c)(4) of this section, by a
vessel fishing in the Southern New England regulated mesh area, shall
be 5\1/2\ inches (13.97 cm) diamond or 6 inches (15.24 cm) square mesh
throughout the net. * * *
* * * * *
(d)* * *
(2) Mesh-size restrictions. Except as provided in paragraphs (e),
(f) and (i) of this section, the minimum mesh size for any trawl net,
sink gillnet, Scottish seine, or midwater trawl, in use, or available
for use as described under paragraph (c)(4) of this section, by a
vessel fishing in the Mid-Atlantic regulated mesh area shall be that
specified in the summer flounder regulations at Sec. 625.24(a) of this
chapter.
* * * * *
(i) State waters winter flounder exemption. Notwithstanding the
provisions of paragraphs (a)(2), (c)(2), and (d)(2) of this section, a
vessel holding a Federal multispecies permit under this part may fish
for winter flounder in state waters with mesh size smaller than the
minimum size required under this section, provided that: (1) The
fishing is conducted exclusively in the waters of the state from which
the exemption certificate was obtained;
(2) The vessel has on board a certificate issued by the state
agency authorizing the vessel's participation in the state's winter
flounder fishing program and is in compliance with the applicable state
laws pertaining to minimum mesh size and minimum fish size for winter
flounder;
(3) The state's winter flounder plan has been approved by the
Atlantic States Marine Fisheries Commission (ASMFC) as being in
compliance with the ASMFC Winter Flounder Fishery Management Plan;
(4) The state elects, in writing, to the Regional Director to
participate in the exemption program described by this section;
(5) The amount of regulated species on board a vessel issued a
limited access permit that is fishing under the days-at-sea (DAS)
program or under a DAS exemption program in Sec. 651.22(d), exclusive
of winter flounder, does not exceed the possession limit specified in
Sec. 651.27(a);
(6) The vessel does not enter or transit the EEZ unless the vessel
is in a designated transit zone established by the Regional Director at
the request of the coastal state; and
(7) The vessel does not enter or transit the waters of another
state unless such other state is participating in the exemption program
described by this section and the vessel is enrolled in that state's
program.
5. In Sec. 651.23, the introductory text of paragraph (a) is
revised, and paragraph (f) is added, to read as follows:
Sec. 651.23 Minimum fish size.
(a) Except as provided in paragraph (f) of this section, the
minimum fish sizes (total length) for the following species are as
follows:* * *
* * * * *
(f) State waters winter flounder exemption. Notwithstanding the
provisions of paragraph (a) of this section, a vessel holding a Federal
multispecies permit under this part and fishing in state waters may
retain winter flounder smaller than the minimum size allowed under
paragraph (a) of this section, provided that:
(1) The fishing is conducted exclusively in the waters of the state
from which the exemption certificate was obtained;
(2) The vessel has on board a certificate issued by the state
agency authorizing the vessel's participation in the state's winter
flounder fishing program and is in compliance with the applicable state
laws pertaining to minimum mesh size and minimum fish size for winter
flounder;
(3) The state's winter flounder plan has been approved by the ASMFC
as being in compliance with the ASMFC Winter Flounder Fishery
Management Plan;
(4) The state elects, in writing, to the Regional Director to
participate in the exemption program described by this section;
(5) The amount of regulated species on board vessels issued a
limited access permit that is fishing under the DAS program, or under a
DAS exemption program in Sec. 651.22(d), exclusive of winter flounder,
does not exceed the possession limit specified in Sec. 651.27(a);
(6) The vessel does not enter or transit the EEZ unless the vessel
is in a designated transit zone established by the Regional Director at
the request of the coastal state; and
(7) The vessel does not enter or transit the waters of another
state unless such other state is participating in the exemption program
described by this section and the vessel is enrolled in that state's
program.
6. In Sec. 651.27, paragraph (a)(5) is added to read as follows:
Sec. 651.27 Possession limits.
(a)* * *
(5) Exemption. Notwithstanding paragraph (a)(1) of this section, a
vessel issued a limited access permit under this part that is fishing
under the DAS program or under a DAS exemption program in
Sec. 651.22(d), and under the state waters winter flounder exemption
specified in Sec. 651.20(i) and Sec. 651.23(f), is not subject to the
possession limit for winter flounder, but is prohibited from possessing
on a vessel, or landing per trip, more than 500 lbs (226.8 kg) of
regulated species, exclusive of the winter flounder. This exemption
does not apply when a limited access vessel's owner or authorized
representative declares the vessel out of the multispecies fishery
specified in Sec. 651.29(a)(1), or when a vessel fishing under the
Individual DAS program has used up its DAS allocation.
* * * * *
[FR Doc. 94-11651 Filed 5-10-94; 4:11 pm]
BILLING CODE 3510-22-P
