[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