[Federal Register Volume 60, Number 187 (Wednesday, September 27, 1995)]
[Proposed Rules]
[Pages 49821-49823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23879]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 656

[Docket No. 950915230-5230-01; I.D. 062895A]
RIN 0648-AH57


Atlantic Striped Bass Fishery; Change in Regulations for 
Exclusive Economic Zone

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS requests public comments on a proposed rule which would 
remove a Federal moratorium on the harvest or possession of Atlantic 
striped bass in the exclusive economic zone (EEZ), 3-200 nautical miles 
(5.6-370.6 km) offshore from Maine to Florida, and impose a minimum 
size limit of 28 inches (71.1 cm) (total length), for Atlantic striped 
bass possessed in or harvested from the EEZ. State regulations would 
apply to any striped bass being transported into a state's jurisdiction 
from the EEZ.

DATES: Written comments must be received on or before October 27, 1995.

ADDRESSES: Send comments on this proposed rule or supporting documents 
to Richard H. Schaefer, Director, Office of Fisheries Conservation and 
Management, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910. Copies of the environmental assessment/
regulatory impact review are available from the same address.

FOR FURTHER INFORMATION CONTACT: William T. Hogarth, 301-713-2339.

SUPPLEMENTARY INFORMATION:

Background

    This proposed rule is promulgated under the Atlantic Striped Bass 
Conservation Act (Act), Public Law 100-589, reproduced at 16 U.S.C. 
1851 note. Section 6 of the Act requires the Secretary of Commerce 
(Secretary) to promulgate regulations on fishing for Atlantic striped 
bass in the EEZ that the Secretary determines to be consistent with the 
national standards in section 301 of the Magnuson Fishery Conservation 
and Management Act (Magnuson Act) (16 U.S.C. 1801 et seq.); and 
necessary and appropriate to (1) ensure the effectiveness of State 
regulations or a Federal moratorium on fishing for Atlantic striped 
bass within the coastal waters of a state; and (2) achieve conservation 
and management goals for the Atlantic striped bass resource. In 
developing the regulations, the Secretary is required to consult with 
the Atlantic States Marine Fisheries Commission (ASMFC), the 
appropriate Regional Fishery Management Councils (Councils), and each 
affected Federal, state and local government entity. The ASMFC, and the 
Mid Atlantic and New England Regional Fishery Management Councils have 
agreed that the moratorium should be removed.
    The Atlantic striped bass occurs predominantly in internal state 
waters and the territorial sea. Historically, only about 7 percent of 
commercial landings have been taken seaward of 3 miles (5.6 km) from 
the coastline. Management responsibility for Atlantic striped bass in 
coastal waters resides primarily with the coastal states through the 
ASMFC's Interstate Fisheries Management Plan for Striped Bass (Striped 
Bass Plan). The Striped Bass Plan was adopted in 1981 by the coastal 
states from Maine through North Carolina in response to a severe 
decline in commercial landings and a decline in juvenile production in 
Maryland.
    There have been five amendments to the Striped Bass Plan to respond 
to the changing condition of the stocks. Increasingly stricter state 
regulations were imposed by Amendments 1 through 3 to the Striped Bass 
Plan from 1981 through 1989. These regulations restricted further 
harvest of Atlantic striped bass by recreational and commercial 
fisheries and allowed rebuilding of the stocks. Amendment 4 to the 
Striped Bass Plan, approved by ASMFC in October 1989, allowed for a 
limited increase in harvest beginning in 1990. In November 1990, a 
moratorium on the harvest and possession of striped bass in the EEZ was 
implemented under the Act, to support the ASMFC Striped Bass Plan.
    Amendment 5, approved in March 1995, completely replaced the 
original Striped Bass Plan and all subsequent amendments and addenda. 
Even though the ASMFC declared the striped bass stocks restored as of 
January 1, 1995, with the exception of the Delaware river and the 
Roanoke/Albemarle sound stocks, Amendment 5 took a conservative 
approach and established a 2-year transition period during which the 
increase in harvest is limited to a fishing mortality (F) rate of 0.33, 
rather than a restored stock level of F = 0.40.
    The Federal ban on the harvest and possession of striped bass in 
the EEZ is being re-examined in view of the ASMFC's declaration that 
striped bass have been restored and the ASMFC's regulations 
implementing Amendment 5 to the Striped Bass Plan.

Relevant Activities Pursuant to Section 6

    In response to Section 6 of the Act, NMFS considered several 
regulatory options for the EEZ and consulted with the ASMFC, the New 
England and Mid-Atlantic Councils, and other affected Federal and state 
entities. There was no consensus view on what action NMFS should take. 
As a result, NMFS considered the following four options:
    Option 1 - Open the EEZ with no harvest or possession restrictions 
on Atlantic striped bass.
    Option 2 - Continue the prohibition on the harvest of Atlantic 
striped bass in the EEZ.
    Option 3 - Apply state regulations to fish caught in the EEZ.
    Option 4 - Promulgate specific Federal regulations on Atlantic 
striped bass fishing in the EEZ.

Discussion

    The ASMFC has declared the Atlantic striped bass to be recovered 
and consequently increased the allowable harvest in Amendment 5. The 
allowable harvest is conservatively increased for the next 2 years 
(until 1997) as a precautionary measure to assure the continued 
rebuilding of the stocks. During this transitional fishery, an 
unrestricted harvest of Atlantic striped bass from the EEZ (option 1) 
would be contrary to the continued rebuilding of 

[[Page 49822]]
the stocks and could potentially damage the spawning stocks.
    Without restrictions on the harvest in the EEZ, as would be the 
case in option 1, there is potential for a major commercial harvest 
from the EEZ. Striped bass could be harvested in the EEZ and 
transported to a state without striped bass regulations. This could be 
detrimental to the continued health of the striped bass stocks.
    Fishermen have been patient during the moratorium in the EEZ. To 
continue the moratorium under option 2, after the ASMFC has declared 
the stock recovered, would not be a good management practice or support 
the ASMFC's actions under Amendment 5.
    Option 3 is unacceptable, because applying the variety of state 
regulations in the EEZ would be impractical and could possibly 
discriminate among residents of different states. This approach would 
require that current regulations in each state be reviewed and found 
consistent with the national standards, and again reviewed if a state 
changed its regulations. This option would also be impractical given 
the wide variety of regulatory measures that states have implemented.
    Option 4 is the most acceptable, because regulations in the EEZ can 
be developed to complement ASMFC's Striped Bass Plan. The management of 
Atlantic striped bass in state waters is primarily the responsibility 
of the coastal states, and is accomplished through the ASMFC's Striped 
Bass Plan. The ASMFC chose 28 inches (71.1 cm) as the minimum size a 
state may select as a baseline conservation measure without having to 
impose additional restrictions such as shorter seasons, smaller quotas, 
etc., to compensate for a state size limit lower than 28 inches (71.1 
cm). The ASMFC selected the 28-inch (71.1 cm) minimum size to allow a 
significant portion of the striped bass population to reproduce before 
reaching the harvest size. NMFS believes that a minimum size limit of 
28 inches (71.1 cm) for striped bass in the EEZ would best complement 
the ASMFC's Striped Bass Plan. The minimum size of 28 inches (71.1 cm) 
in the EEZ would prevent a fishery from developing on the 12-14 inch 
(30.5-35.6 cm) pan size fish that existed before the collapse of the 
striped bass stocks.
    In addition, NMFS does not intend to interfere with the enforcement 
of state regulations within state waters. NMFS has examined the 
individual state regulations, and has concluded that the state 
regulations are consistent with the objective of the proposed Federal 
regulation, and that application by states of their regulations to fish 
harvested in the EEZ (as long as no striped bass under 28 inches (71.1 
cm) are harvested or possessed in the EEZ) and transported into state 
waters is necessary for effective state enforcement. An example of how 
this would work is that in a state such as Massachusetts which has a 
34-inch (86.4 cm) minimum size limit for recreationally caught striped 
bass, a daily creel limit of one fish and a season that is open all 
year, a fisherman who had five fish that were 28 inches (71.1 cm) in 
length in the EEZ off Massachusetts would be fishing legally until he 
entered state waters, at which time the state requirements of one fish 
at a minimum size of 34 inches (86.4 cm) would be enforced by the 
state. The same is true for a commercial fisherman in Massachusetts. 
The minimum size limit is 34 inches (86.4 cm) and the season is from 1 
July until the quota is reached. When a commercial fisherman reaches 
the state waters of Massachusetts, the striped bass must be at least 34 
inches (86.4 cm) in length, the commercial season open, and the fish 
must meet any other state striped bass regulations. The bottom line is 
that striped bass taken in the EEZ must be at least 28 inches (71.1 
cm), but also, more importantly, must comply with the state striped 
bass regulations when the striped bass are transported into state 
waters. In addition, any striped bass taken in the EEZ and transported 
into state waters for sale, must meet the state's commercial sale 
regulations (proper state licenses, etc.) and the catch would be 
applied against the state's seasonal quota. The actual quota is the 
same whether the EEZ is open or not.
    Only two states will have a minimum size limit of less than 28 
inches (71.1 cm). These two states have a 24-inch (61.0 cm) minimum 
size limit and meet the ASMFC conservation requirements by implementing 
additional restrictions to compensate for the smaller size limit. The 
ASMFC has currently frozen state size limits during the 2 year 
transition period of the target mortality rate required by Amendment 5 
to the Striped Bass Plan. However, NMFS is concerned that the potential 
exists for every state to reduce its size limit below 22-24 inches 
(55.9-61.0 cm), which could have a negative impact on the rebuilding of 
spawning stocks. NMFS solicits comments on this issue. NMFS will 
continue working with the ASMFC to ensure striped bass stocks are 
protected.

Proposed Action

    The proposed action would (1) remove the current moratorium on the 
possession in or harvest from the EEZ of striped bass; and (2) prohibit 
the possession in or harvest from the EEZ of striped bass less than 28 
inches (71.1 cm) total length (measured from the tip of the snout to 
the tip of the tail fin). The possession in the EEZ of striped bass 
less than 28 inches (71.1 cm) total length, would be illegal, 
regardless of where the fish were caught.

Classification

    The Assistant Administrator for Fisheries has preliminarily 
determined that these actions are consistent with the national 
standards. The Secretary, before making the final determinations, will 
take into account the data, views, and comments received during the 
comment period.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. As a result, a regulatory flexibility analysis was not 
prepared.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.

List of Subjects in 50 CFR Part 656

    Fisheries, Fishing.

    Dated: September 21, 1995.
Henry A. Beasly,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR Part 656 is 
proposed to be revised to read as follows:

PART 656--ATLANTIC STRIPED BASS FISHERY

Sec.
656.1  Purpose and scope.
656.2  Relation to the Magnuson Act.
656.3  Definitions.
656.4  Civil procedures.
656.5  Specifically authorized activities.
656.6  Management measures.
656.7  Prohibitions.


    Authority: 16 U.S.C. 1851 note.


Sec. 656.1  Purpose and scope.

    This part implements section 6 of the Atlantic Striped Bass 
Conservation Act Appropriations Authorization, Public Law 100-589, and 
govern fishing for and possession of Atlantic striped bass on the 
Atlantic coast.


Sec. 656.2  Relation to the Magnuson Act.

    The provisions of sections 307 through 311 of the Magnuson Act, as 
amended, regarding prohibited acts, civil penalties, criminal offenses, 


[[Page 49823]]
forfeitures, and enforcement apply with respect to this part as if this 
part were issued under the Magnuson Act.


Sec. 656.3  Definitions.

    In addition to the definitions in the Magnuson Act and in 
Sec. 620.2 of this chapter, the terms used in this part have the 
following meanings:
    Act means the Atlantic Striped Bass Conservation Act Appropriations 
Authorization, Public Law 102-130, reproduced at 16 U.S.C. 1851 note.
    Atlantic striped bass means members of stocks or populations of the 
species Morone saxatilis, found in the waters of the Atlantic ocean 
north of Key West, FL.
    Land means to begin offloading fish, to offload fish, or to enter a 
port with fish.
    Total length measurement of fish from tip of snout to the tip of 
the tail fin.


Sec. 656.4  Civil procedures.

    The civil procedure regulations at 15 CFR part 904 apply to civil 
penalties, seizures, and forfeitures under the Act and the regulations 
of this part.


Sec. 656.5  Specifically authorized activities.

    NMFS may authorize, for the acquisition of information and data, 
activities that are otherwise prohibited by this part.


Sec. 656.6  Management measures.

    (a) Minimum size in EEZ. Except as provided in paragraph (b) of 
this section, the minimum allowable size for Atlantic striped bass 
possessed in or harvested from the EEZ, regardless of state 
regulations, is 28 inches (71.1 cm) total length (measured from tip of 
the snout to the tip of the tail fin); and
    (b) Regulations in state waters. Nothing in this part is intended 
to interfere with any state's enforcement of that state's regulations 
concerning Atlantic striped bass.


Sec. 656.7  Prohibitions.

    In addition to the prohibitions set forth in Sec. 620.7 of this 
chapter, the following prohibitions apply. It is unlawful for any 
person to do any of the following:
    (a) Possess in or harvest from the EEZ any Atlantic striped bass 
that is less than the minimum size specified in Sec. 656.6;
    (b) Catch, take, possess, or harvest and retain any Atlantic 
striped bass in the EEZ that is less than the minimum size specified in 
Sec. 656.6;
    (c) Fail to return to the water immediately, with the least 
possible injury, any Atlantic striped bass taken in the EEZ less than 
28 inches (71.1 cm) in total length;
    (d) Possess (on board a vessel) any Atlantic striped bass less than 
the minimum size specified in Sec. 656.6 while such vessel is in the 
EEZ; or
    (e) Make any false statement, oral or written, to an authorized 
officer concerning the taking, catching, harvesting, landing, shipping, 
transporting, selling, offering for sale, purchasing, importing or 
exporting, or transferring of any Atlantic striped bass.
[FR Doc. 95-23879 Filed 9-26-95; 8:45 am]
BILLING CODE 3510-22-F