[Federal Register Volume 63, Number 51 (Tuesday, March 17, 1998)]
[Proposed Rules]
[Pages 13028-13030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6771]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 980302051-8051-01; I.D. 021198B]
RIN 0648-AK78


Fisheries of the Northeastern United States; Fishery Management 
Plan for the Summer Flounder, Scup, and Black Sea Bass Fisheries; 
Recreational Measures for the 1998 Summer Flounder, Scup, and Black Sea 
Bass Fisheries

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 amend the regulations 
implementing the Fishery Management Plan for the Summer Flounder, Scup, 
and Black Sea Bass Fisheries (FMP). This rule proposes a possession 
limit of 8 fish per person and a minimum fish size of 15 inches (38 cm) 
for the 1998 summer flounder recreational fishery; a minimum fish size 
of 10 inches (25.4 cm) and an August 1 through August 15 seasonal 
closure for the 1998 black sea bass recreational fishery; and no change 
in the current regulations for the 1998 scup recreational fishery. The 
intent of this rule is to comply with the FMP implementing regulations 
that require NMFS to publish measures for the upcoming fishing year 
that will prevent overfishing of these resources.

DATES: Public comments must be received on or before April 16, 1998.

ADDRESSES: Copies of the Environmental Assessment prepared for the 1998 
summer flounder, scup, and black sea bass specifications and supporting 
documents used by the Monitoring Committees are available from: 
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, 
Federal Building, 300 S. New Street, Dover, DE 19901-6790. Comments on 
the proposed rule should be sent to: Andrew A. Rosenberg, Ph.D., 
Regional Administrator, Northeast Region, NMFS, One Blackburn Drive, 
Gloucester, MA 01930. Please mark the outside of the envelope 
``Comments on the 1998 Recreational Fishing Measures for Summer 
Flounder, Scup, and Black Sea Bass.''

FOR FURTHER INFORMATION CONTACT: David M. Gouveia, Fishery Management 
Specialist, (978) 281-9280.

SUPPLEMENTARY INFORMATION: The FMP was developed jointly by the 
Atlantic States Marine Fisheries Commission (Commission) and the Mid-
Atlantic Fishery Management Council (Council) in consultation with the 
New England and South Atlantic Fishery Management Councils. 
Implementing regulations for the fishery are found at 50 CFR part 648.
    Sections 648.100, 648.120, and 648.140 outline the process for 
determining annual commercial and recreational catch quotas and other 
restrictions for the summer flounder, scup, and black sea bass 
fisheries. Pursuant to the FMP, Monitoring Committees (Committee) have 
been established for each of the three fisheries. Each Committee is 
comprised of representatives from the Commission, NMFS, and the Mid-
Atlantic, New England, and South Atlantic Fishery Management Councils. 
The FMP requires each Committee to review, on an annual basis, 
scientific and other relevant information and to recommend harvest 
limits and other restrictions necessary to achieve the fishing 
mortality rates (F) of the summer flounder, scup, and black sea bass 
fisheries. For 1998, the FMP defines F as 0.24 for summer flounder; 
0.72 for scup; and 0.73 for black sea bass.
    Each Committee reviews the following information annually: (1) 
Commercial and recreational catch data; (2) current estimates of stock 
mortality; (3) stock status; (4) recent estimates of recruitment; (5) 
virtual population analysis (a method for analyzing fish stock 
abundance); (6) levels of regulatory noncompliance by fishermen or 
individual states; (7) impact of fish size and net mesh regulations; 
(8) impact of gear, other than otter trawls, on the mortality of summer 
flounder; and (9) other relevant information. Pursuant to 
Secs. 648.100, 648.120, and 648.140, after this review, each Committee 
recommends to the Council and Commission management measures to assure 
achievement of the appropriate fishing mortality rate for each fishery. 
The Council and Commission, in turn, make a recommendation to the 
Regional Administrator.
    Final specifications for the 1998 summer flounder, scup, and black 
sea bass fisheries were published on December 18, 1997 (62 FR 66304), 
including a coastwide recreational harvest limit of 7.41 million lb 
(3.36 million kg) for summer flounder; 1.553 million lb (0.70 million 
kg) for scup; and 3.148 million lb (1.43 million kg) for black sea 
bass. The recreational season, possession limit, and minimum size for 
1998 were not established as part of the final specifications because 
recreational catch data for 1997 were not available for the Committees' 
use in evaluating the effectiveness of the 1997 measures. Shortly after 
preliminary data became available, each Committee met to review the 
1997 data and to recommend measures for the 1998 recreational fisheries 
intended to complement the recreational harvest limits.

Summer Flounder

    Using available data and catch estimates for the final months of 
1997, the Council estimates that the summer flounder recreational 
sector exceeded its harvest limit by approximately 1.88 million lb 
(0.85 million kg). Since the 1998 specifications allocate the same 
recreational harvest level as in 1997 (7.41 million lb (3.36 million 
kg)), a 20.2 percent reduction in recreational landings from the 1997 
level is needed. To accomplish this reduction, the Committee 
recommended either increasing the recreational minimum fish size to 15 
inches (38 cm) and reducing the possession limit to 6 fish per person 
or maintain the minimum size at 14.5 inches (36.8 cm) and reduce the 
possession limit to 3 fish per person.
    The Council and Commission reviewed the Committee recommendation 
but felt it was more restrictive than necessary. Instead, to achieve 
the needed reduction, the Council and the Commission proposed two 
alternative options, and proposed to allow each state to select either 
of the two sets of measures for implementation. The first option 
recommended an increase in the recreational minimum fish size to 15 
inches (38 cm) and a reduction in the possession limit from 10 to 8 
fish per person. The second option would maintain the minimum size at 
14.5 inches (36.8 cm) and reduce the possession limit to six fish per 
person. Additionally, the second option included a closed season 
provision that would reduce the 1998 landings in a state by 8 percent 
from its 1997 landings level. The reduction attributed to each month 
would be calculated based on 1992-96 data.
    The request by the Council to implement two distinct management 
regimes for summer flounder triggered

[[Page 13029]]

lengthy discussion concerning the legality of submitting alternative 
proposals to NMFS for review. The Council noted that if it was not 
found to be a legal option, it recommended the 15-inch (38-cm) minimum 
size and eight fish per person possession limit. At the December 1997 
Council meeting, the Regional Attorney, Northeast Region, was asked for 
legal advice with respect to this issue. At that time, the Regional 
Attorney advised preliminarily that the underlying amendments 
(Amendment 2 for Summer Flounder and Amendment 9 for Black Sea Bass), 
did allow the setting of alternative possession limits and minimum 
sizes for summer flounder and black sea bass. The Regional Attorney 
also opined that the amendments did not allow a closure other than 
before and after a solitary continuous open season. After a more 
thorough review, the Regional Attorney advised that the amendments do 
not allow the Council to recommend alternative minimum sizes and 
possession limits or the states to adopt a minimum size or possession 
limit that differs from the measures specified by the Council. 
Therefore, NMFS is proposing to increase the recreational minimum fish 
size to 15 inches (38 cm) and to reduce the possession limit from 10 to 
8 fish per person.
    The Council believes that this combination of limits--the 15-inch 
(38-cm) minimum fish size and the eight fish possession limit--will 
constrain anglers to the 7.41 million lb (3.36 million kg) harvest 
limit in 1998. The possession limit is higher than that recommended by 
the Committee, which felt that it must be reduced to compensate for 
increased fish availability as the stock rebuilds. However, the eight 
fish per person limit is projected to reduce recreational landings by 
approximately 23 percent even if only 75 percent of the anglers comply 
with the proposed restrictions. Many Council members believe compliance 
is higher than 75 percent and the reduction in landings will be greater 
if that is true.
    NMFS concurs with the Council recommendation. The analysis 
indicates that the decrease in the possession limit and the increase in 
the minimum fish size is expected to constrain the harvest to the 
specified level. In addition to these measures, the Council and 
Commission took action to reduce discard mortality associated with the 
recreational fishery. This complements the action it took for the 
commercial fishery by requiring each state to establish a 15 percent 
commercial quota set aside for a bycatch fishery.
    During the 1998 fishery, the Council intended to recommend a 
recreational hook requirement to address discard mortality in the 
summer flounder recreational sector. Because there are so few studies 
available on which to base hook size requirements for summer flounder, 
the Council and Commission took action based on the limited studies 
available and the testimony from fishery participants. Accordingly, 
they intend to publicize their support for voluntary use of circle 
hooks greater than 2/0 in size when fishing for summer flounder. Given 
the absence of definitive data, NMFS believes this is a reasonable way 
to begin to address this issue for the recreational fishery.

Black Sea Bass

    The first year that the FMP requires specification of a 
recreational harvest level for black sea bass is 1998. In 1997, the 
only recreational measure was a minimum fish size of 9 inches (22.9 
cm). Because 70 percent of the landings occur from September through 
December and 1997 data are not available, the Council recommended that 
1996 data be used to estimate the effects of fish size and possession 
limits. Relative to the 1996 data, landings would have to be reduced 47 
percent to achieve the 1998 harvest limit of 3.148 million lb (1.43 
kg). To accomplish this reduction, the Council and the Commission 
proposed two alternative options and proposed to allow each state to 
select either of the two measures for implementation. The first option 
proposed to increase the recreational minimum fish size to 10 inches 
(25.4 cm), establish an August 1 through August 15 seasonal closure, 
and set no possession limit. The second option, proposed to increase 
the recreational minimum fish size to 10 inches (25.4 cm), impose a 20 
fish per person possession limit, and not to impose a seasonal closure.
    As discussed above for summer flounder, the proposal by the Council 
and Commission to allow states to choose between two distinct 
management regimes was found inconsistent with the FMP according to the 
Regional Attorney. Therefore, NMFS proposes to increase the 
recreational minimum fish size to 10 inches (25.4 cm), establish an 
August 1 through August 15 seasonal closure, and not to impose a 
possession limit. Based on the staff analysis presented at the Council 
meeting, this combination of measures is expected to constrain anglers 
to the 3.148 million lb (1.43 million kg) harvest limit in 1998.

Scup

    The only measure in place for the 1997 scup recreational fishery 
was a 7-inch (17.78-cm) minimum fish size. The Council used available 
data and catch estimates for the final months of the 1997 scup 
recreational fishery to project scup landings to be below the 1997 
harvest limit (1.947 million lb (0.88 million kg)) by approximately 17 
percent. The difference between the projected 1997 landings (1.616 
million lb (0.73 million kg)) and the 1998 target limit (1.553 million 
lb (0.70 million kg)) is small.
    The Council and Commission recommended no change in the current 
recreational regulations for scup in 1998. The Council believes that 
the 7-inch (17.78-cm) minimum fish size will constrain anglers to the 
1.553 million lb (0.70 million kg) harvest limit in 1998 because of the 
limited fish availability associated with low stock levels. NMFS 
concurs with the Council/Commission recommendation.

Classification

    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation, 
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 follows:

    It is unlikely that the measures that would be implemented by 
this action would decrease ex-vessel revenues by more than 5 percent 
for more than 20 percent of the small entities engaged in the summer 
flounder, scup, and black sea bass fisheries. It is not expected 
that any small entities in these recreational fisheries will cease 
operations as a result of this action. The impacts were evaluated 
when the recreational coastwide harvest levels were analyzed as part 
of the proposed and final 1998 specifications. The review examined 
the impact the final 1998 specifications would have on all vessels 
that landed any of these three species in 1996. Impacts were 
examined by presuming a 23-percent reduction in summer flounder 
landings, a 47-percent reduction in black sea bass, and no reduction 
in scup landings. While it is possible that the recreational harvest 
limit for 1998 could cause some concern for recreational fishermen, 
there is no indication that it will lead to a decline in the demand 
for recreational trips. Within recreational fishing there are 
numerous alternative target species, and the number of trips 
targeting a given species in any given year is quite variable. For 
example, recreational fishing trips upon which summer flounder were 
landed have fluctuated over the past 4-5 years without

[[Page 13030]]

any discernible trend. Trips for black sea bass have similarly 
fluctuated. By contrast, scup targeted trips have been declining in 
recent years, and those declining years correspond to dramatic 
increases in trips taken where striped bass was the target species. 
However, little information is available to draw any causal 
inferences linking management regulations to switching behavior 
among the myriad of species available to recreational anglers. In 
the aggregate, the total number of recreational trips in the Mid-
Atlantic region have remained relatively stable with a slight upward 
trend since 1993. It is likely that recreational anglers will target 
other species that are relatively more abundant (such as black sea 
bass) when faced with potential reductions in the amount of summer 
flounder and black sea bass that they are allowed to catch due to 
decreases in the respective recreational harvest limits. Since the 
proposed measures for each of these fisheries do not significantly 
change measures previously adopted, they are not expected to alter 
participation in the fishery. Therefore, this rule most likely would 
not have a significant impact on a substantial number of small 
entities.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: March 11, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec. 648.103, paragraph (b) is revised to read as follows:


Sec. 648.103  Minimum fish sizes.

* * * * *
    (b) The minimum size for summer flounder is 15 inches (38 cm) TL 
for all vessels that do not qualify for a moratorium permit, and party 
and charter boats holding moratorium permits, but fishing with 
passengers for hire or carrying more than three crew members, if a 
charter boat, or more than five crew members, if a party boat.
* * * * *
    3. In Sec. 648.105, the first sentence of paragraph (a) is revised 
to read as follows:


Sec. 648.105  Possession restrictions.

    (a) No person shall possess more than eight summer flounder in, or 
harvested from, the EEZ unless that person is the owner or operator of 
a fishing vessel issued a summer flounder moratorium permit or is 
issued a summer flounder dealer permit. * * *
* * * * *
    4. Section 648.142 is revised to read as follows:


Sec. 648.142  Time restrictions.

    Vessels that are not eligible for a moratorium permit under 
Sec. 648.4(a)(6) and fishermen subject to the possession limit may not 
fish for black sea bass from August 1 through August 15. This time 
period may be adjusted pursuant to the procedures in Sec. 648.140.
* * * * *
    5. In Sec. 648.143, paragraph (a) is revised, existing paragraph 
(b) is redesigned as paragraph (c), and new paragraph (b) is added to 
read as follows:


Sec. 648.143  Minimum fish sizes.

    (a) The minimum size for black sea bass is 10 inches (25.4 cm) 
total length for all vessels issued a moratorium permit under 
Sec. 648.4(a)(7) that fish for or retain black sea bass in or from U.S. 
waters of the western Atlantic Ocean from 35 deg.15.3' N. Lat., the 
latitude of Cape Hatteras Light, North Carolina, northward to the U.S.-
Canada border. The minimum size may be adjusted for commercial vessels 
pursuant to the procedures in Sec. 648.140.
    (b) The minimum size for black sea bass is 10 inches (25.4 cm) TL 
for all vessels that do not qualify for a moratorium permit, and party 
and charter boats holding moratorium permits, but fishing with 
passengers for hire or carrying more than three crew members, if a 
charter boat, or more than five crew members, if a party boat. The 
minimum size may be adjusted for recreational vessels pursuant to the 
procedures in Sec. 648.140.
* * * * *
[FR Doc. 98-6771 Filed 3-12-98; 11:20 am]

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