[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