[Federal Register Volume 63, Number 98 (Thursday, May 21, 1998)]
[Rules and Regulations]
[Pages 27866-27868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13595]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 09-302051-8119-02; I.D. 021198B]
RIN 0648-AK78


Fisheries of the Northeastern United States; Fishery Management 
Plan (FMP) 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: Final rule.

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SUMMARY: NMFS issues this final rule to amend the regulations 
implementing the FMP for the Summer Flounder, Scup, and Black Sea Bass 
Fisheries. This rule implements a possession limit of eight 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 regulations implementing the FMP for the 
fisheries that require NMFS to implement measures for the upcoming 
fishing year that will prevent overfishing of these resources.

DATES: Effective June 22, 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 Committee are available from: 
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, 
Federal Building, 300 S. New Street, Dover, DE 19901-6790.

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

SUPPLEMENTARY INFORMATION: The FMP was developed jointly by the Mid-
Atlantic Fishery Management Council (Council) and the Atlantic States 
Marine Fisheries Commission (Commission), 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 these sections, the Administrator, Northeast 
Region, NMFS, implements measures for the fishing year to ensure 
achievement of the fishing mortality rate specified in the FMP. This 
document announces the following measures pertaining to the 
recreational fishery, which are unchanged from the proposed measures 
that were published in the Federal Register on March 17, 1998 (63 FR 
13208): (1) An individual possession limit of eight fish per person and 
a minimum fish size of 15 inches (38 cm) for the 1998 summer flounder 
recreational fishery; (2) 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 (3) no-change in the current 
regulations for the 1998 scup recreational fishery (a minimum fish size 
of 7 inches (17.78 cm)). The preamble to the proposed rule provided 
background concerning the development of these measures and that 
information is not repeated here.
    In addition to these measures, the Council and Commission 
considered measures to reduce discard mortality associated with the 
recreational fishery. Discard mortality was addressed for the 
commercial fishery by requiring each state to establish a 15 percent 
commercial quota set aside for a bycatch fishery. The Council intended 
to recommend a recreational hook requirement to address discard 
mortality in that sector.
    However, Commission staff presented the results of a literature 
review that revealed few available studies available on which to base 
hook size requirements for summer flounder. Therefore, the Council and 
Commission took action based on the limited studies available and 
testimony from fishery participants. During the 1998 fishery,

[[Page 27867]]

the Council and Commission intend to publicize their support for the 
voluntary use of circle hooks greater than 2/0 in size when fishing for 
summer flounder. Given the absence of definitive data, this appears to 
be a reasonable way to begin to address this issue for the recreational 
fishery.

Comments and Responses

    Two comments were received immediately after the Council meeting in 
December 1997. One comment was received during the comment period for 
the proposed rule, which ended April 16, 1998.
    Comment 1: New Jersey Congressman Frank Pallone supports a 14.5-
inch (36.8-cm) minimum fish size, eight fish per person possession 
limit, and a May 15 to October 15 open season for summer flounder; and 
a 9.5-inch (24.1-cm) minimum fish size and a ``reasonable seasonal 
restriction'' for black sea bass. Congressman Pallone feels that the 
proposed summer flounder and black sea bass recreational specifications 
will have a greater negative impact on the New York and New Jersey area 
than on any other area in the Mid-Atlantic region.
    Response: NMFS notes that the FMP calls for substantial reductions 
in commercial and recreational harvests of both summer flounder and 
black sea bass coastwide in 1998. Summer flounder measures are intended 
to achieve a 20.2-percent reduction from 1997 catches. The Congressman 
proposed a less restrictive minimum fish size for summer flounder than 
those recommended by the Council and published in the proposed rule. 
The seasonal closure supported by the Congressman appears to be 
intended to provide the additional reductions in catch required for 
1998. NMFS notes that the Council had an extended discussion about 
including a closed season in the recreational measures for summer 
flounder for 1998. That discussion identified several concerns that are 
unresolved by the Congressman's proposal.
    First, the seasonal restriction would require the fishery to be 
closed from January 1 through May 14, as well as from October 16 
through December 31. However, this final rule will not be published 
until April or May. Therefore, the first portion of the Congressman's 
proposed closed season could not be implemented for 1998. Second, 
because summer flounder migrate seasonally, it is difficult to specify 
a closed season that will achieve a consistent reduction throughout the 
geographic range of the species. The Council discussed closed seasons 
at length and several Council members expressed concern that closures 
in either spring or fall would have disproportionate negative impacts 
upon such southern states as Virginia and North Carolina. There is no 
evidence that any particular state will be affected disproportionately.
    The 1998 black sea bass measures are intended to achieve landings 
that are a 47-percent reduction from those in 1996 (the last year for 
which complete landings are available). The Congressman supports a 9.5-
inch (24.1-cm) minimum fish size with a ``reasonable seasonal 
restriction.'' Since the minimum fish size supported by the Congressman 
is less restrictive than that adopted here, the seasonal restriction 
would have to be more restrictive in order to meet the reduction 
necessary. At the December 1997 Council meeting, Council members and 
the public in attendance focused on three potential management tools 
available for managing the black sea bass fishery: an individual 
possession limit, minimum fish size, and seasonal restrictions. In that 
discussion, as well as in the recommendations of the Monitoring 
Committee, of the Industry Advisors and, ultimately, of the Council, 
consensus was that an increase to a 10-inch (25.4-cm) minimum fish size 
and a 15-day closure was preferable to restrictive possession limits or 
additional seasonal restrictions. In fact, the Council's Industry 
Advisors noted that they had agreed that a 10-inch (25.4-cm) size limit 
would have fewer negative effects than any other potential management 
measures on all user groups. The Congressman did not explain why he 
preferred a 9.5-inch (24.1-cm) minimum fish size to a 10-inch (25.4-cm) 
minimum fish size or what he would consider a ``reasonable'' seasonal 
closure.
    Finally, the Congressman noted that the proposed measures will have 
a more severe impact upon fishery participants in New York and New 
Jersey than in any other states. NMFS recognizes that the recreational 
fishery is important to these states, but is not convinced that this 
conclusion is supported. In fact, during the Council discussion, 
several members noted concern that the increase in the summer flounder 
minimum fish size would be more restrictive in such southern states as 
Virginia and North Carolina than in the northern portions of the 
management area. NMFS concludes that specific measures may have 
somewhat different impacts geographically, but, overall, NMFS 
determined that the rule would not have a significant impact upon a 
substantial number of small entities, which would affect New York and 
New Jersey disproportionately (see Classification section).
    Comment 2: The State of Maryland Department of Natural Resources 
(DNR) commented in support of the initial Council proposal, which would 
allow states to implement a 14.5-inch (36.8-cm) minimum fish size and 
six fish per person possession limit, and closed season as long as it 
achieves the same conservation benefit as the 15-inch (38-cm) minimum 
fish size and the eight fish per person possession limit. DNR expressed 
serious concern that a minimum fish size of 15 inches (38 cm) would 
have the effect of denying Maryland harvesters the opportunity to catch 
legal summer flounder in Chesapeake Bay and, to some extent in other 
coastal bays.
    Response: The FMP does not allow the Council to specify alternative 
possession limits or minimum fish sizes. At the time the Council made 
its recommendation, the members specified that, if alternative measures 
were not allowed, the preferred measure would be the 15-inch (38-cm) 
minimum fish size and eight fish per person possession limit. It will 
be necessary to amend the FMP to establish a measure that will allow 
the Council to specify a set of alternative measures with equivalent 
conservation benefits from which states may select the set of measures 
that are most appropriate for their fisheries. NMFS understands that 
the Council intends to discuss this issue further as part of a future 
amendment to the FMP.
    Recreational survey data suggests that, while the percentage of 
fish greater than or equal to 15 inches (38 cm) in size in the 
Chesapeake Bay may be a lower percentage than that in the coast as a 
whole (60 percent), there are larger fish present in the Bay.
     Comment 3: One commenter supported raising the black sea bass 
minimum size limit to 10 inches (25.4 cm), but has expressed concern 
regarding the lack of a possession limit and the August 1 through 
August 15 seasonal closure. The commenter supports a possession limit 
of 30 fish per person for ``full day'' vessels and 20 fish per person 
for ``half day'' vessels in the Ocean City, Maryland, area. To 
accommodate the vessels that make trips longer than 12 hours, the 
commenter suggests a possession limit of 50 fish per person and a 
possession limit of 30 fish per person for private and charter vessels 
conducting trips longer than 12 hours. Additionally, the commenter 
feels the August closure would have a serious financial impact on the 
owners and crews of vessels from the Ocean City, Maryland, area and

[[Page 27868]]

would ``simply allow for a great September.''
    Response: Possession limits were discussed at the December 1997 
Council meeting. Marine Recreation Statistical Survey data showed that 
the average number of black sea bass landed per successful trip was 5.4 
in 1996. Council analysis showed that imposing a 10-inch (25.4-cm) 
minimum size limit and a possession limit as low as seven fish per 
person would achieve the necessary reduction in recreational black sea 
bass landings and, on average, allow an additional three fish per 
person possession. However, at the December 1997 meeting, public 
comment of those industry members in support of possession limit 
restrictions strongly supported a greater than 20 fish per person 
possession limit. As a result of these discussions, the Council and 
Commission proposed two alternative options that would allow each state 
to choose either of the two options, one of which did contain a 20 fish 
per person possession limit. However, the FMP does not allow the 
Council to specify alternative measures or to adopt measures that 
differ from those specified by the Council. NMFS did not recommend the 
20 fish per person possession limit because the seasonal restriction 
appears to be more widely accepted based on comments from the December 
1997 Council meeting and the comment period for the proposed rule. This 
is the only comment in opposition.
    The commenter's suggestion of ``half day'' versus ``full day'' 
possession limits is not feasible at this time. To implement this type 
of measure, a method to track vessel departures and arrivals would have 
to be developed. Any such system for the recreational sector would be 
burdensome and not cost effective for the industry. Regarding the 
commenter's suggestion of allowing an unlimited possession of black sea 
bass is ``hardly good science,'' Council analysis of the best data 
available shows that the seasonal closure and minimum fish size 
implemented in 1998 are expected to constrain anglers by the needed 47 
percent in 1998.
    The commenter provided no indication of support for seasonal 
closures in general. While the commenter notes that the proposed 
seasonal closure will likely have a serious financial impact on owners 
and crews in the Ocean City, Maryland area, he admits that croaker may 
replace black sea bass during the August 1 through August 15 closure 
and that the respite provided by the closure will result in a ``great 
September.'' As noted in an earlier response, NMFS concludes that 
specific measures may have somewhat different impacts geographically, 
but, overall, NMFS determined that the rule would not have a 
significant impact upon recreational fishermen in this sector. It is 
likely that recreational anglers will target other species that are 
relatively more abundant (such as striped bass) when faced with 
potential reductions in the amount of summer flounder and black sea 
bass they are allowed to catch due to decreases in the respective 
recreational harvest limits.

Classification

    This action is authorized by 50 CFR part 648.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    When this rule was proposed, 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. Because no comments 
were received regarding this certification and the basis for it remains 
unchanged, a regulatory flexibility analysis was not prepared.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 15, 1998.
Gary C. Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 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 
boats holding a moratorium permit if fishing with passengers for hire 
or carrying more than five crew members, or charter boats holding a 
moratorium permit if fishing with more than three crew members.
* * * * *
    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 redesignated 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 
boats holding a moratorium permit if fishing with passengers for hire 
or carrying more than five crew members, or charter boats, holding a 
moratorium permit if fishing with more than three crew members. The 
minimum size may be adjusted for recreational vessels pursuant to the 
procedures in Sec. 648.140.
* * * * *
[FR Doc. 98-13595 Filed 5-20-98; 8:45 am]
BILLING CODE 3510-22-F