Summer Flounder Fishery

DEPARTMENT OF COMMERCE

50 CFR Part 625

[Docket No. 940241-4155; I.D. 013194A]

RIN 0648-AG00

Summer Flounder Fishery

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 implement Amendment 6 to the

Fishery Management Plan for the Summer Flounder Fishery (FMP). This

amendment modifies the minimum mesh-size requirement, the schedule for

establishing the annual recreational fishery management measures, and

the dimensions of the fish box or tote; provides for an experimental

fishery; and prohibits the use of twisted mesh and interference with

observers and sea samplers. The intended effects are to minimize the

effects of regulatory restrictions on industry, and to use the best

available data to assess the fishery, without compromising the FMP

objective to rebuild the stocks of summer flounder.

DATES: Sections 625.8(a)(6) and (a)(7), the removal of paragraph (c) of

Sec. 625.24, the redesignation of paragraphs (d) and (e) of Sec. 625.24

as paragraphs (c) and (d), Sec. 625.24(f), and Sec. 625.25(d) are

effective May 31, 1994. Sections 625.8(c)(9) and (e), 625.20(c),

625.24(e), and 625.28 are effective July 5, 1994.

ADDRESSES: Copies of Amendment 6, the environmental assessment, the

regulatory impact review (RIR), and initial regulatory flexibility

analysis (IRFA) 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 proposed rule to implement the amendment was

published in the Federal Register on February 23, 1994 (59 FR 8592).

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).

Background concerning the development of the management measures

contained in Amendment 6 and the reasons they were adopted by the

Council were provided in the preamble of the proposed rule and are not

repeated here.

NMFS approved Amendment 6, which allows vessel operators to: (1)

Carry nets with different size mesh on board their vessels; and (2)

exceed the minimum-mesh seasonal summer flounder threshold amounts, as

long as all nets that do not meet the minimum-mesh requirement are

appropriately stowed once the threshold amounts of summer flounder are

retained. Once stowed, these nets cannot be used for the remainder of

the fishing trip.

NMFS is also implementing a regulation that allows the Director,

Northeast Region, NMFS (Regional Director), to authorize an

experimental fishery to collect management information in certain

circumstances 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 maintains the integrity of the

mortality reduction schedule for summer flounder, the main objective of

Amendment 2.

This rule also implements 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

Sec. 625.8(a)(6). The addition of this prohibition conforms the summer

flounder regulations with the Northeast multispecies regulations found

at 50 CFR part 651. Such conformity is desirable since multispecies and

summer flounder can be caught on the same fishing trip. The Council

adopted another provision that is also implemented in this final rule

which modifies 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.

This rule revises the prohibition found at Sec. 625.8(c)(9) to

prohibit interference with a sea sampler or observer on board a vessel

for any purpose, and not just for the activities under Secs. 625.26 and

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.

NMFS is also modifying the annual fishing measures schedule found

at Sec. 625.20(c). The date on which recreational fishing measures are

to be published in the Federal Register is changed to February 15 to

allow recreational fishery data from the previous year to be included

in the assessment and monitoring process. The total allowable removals

from the stock, which are 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 announced

in the form of a proposed rule or a proposed specification and still

allow the states an opportunity to implement them on January 1 of each

year. 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 late each calendar

year.

Comments and Responses

One comment in support of Amendment 6 was received during the

public comment period. The commenter believed that the amendment is a

vital part of the preservation of the mixed trawl fishery and will

contribute to the overall safety of vessels participating in the

fishery. NMFS agrees with these comments.

No negative comments were received during the public comment

period.

Classification

This final rule has been determined to be not significant for

purposes of E.O. 12866.

When this rule was proposed, the General Counsel of the Department

of Commerce certified to the Small Business Administration that this

rule, if adopted as proposed, would not have a significant economic

impact on a substantial number of small entities for the reasons set

forth in the RIR prepared by the Council. A copy of the RIR may be

obtained from the Council (see ADDRESSES). As a result, an IRFA was not

prepared.

Sections 625.8(a)(6) and (a)(7), the removal of paragraph (c) of

Sec. 625.24, redesignation of paragaphs (d) and (e) of 625.24 as

paragraphs (c) and (d), Sec. 625.24(f), and Sec. 625.25(d) are

effective immediately. Sections 625.8(a)(6) and (a)(7), the removal of

paragraph (c) of Sec. 625.24, Sec. 625.24(f), and Sec. 625.25(d)

relieve restrictions on the fishery by allowing more than one net on

board, if properly stowed, or allow varying amounts of summer flounder

on board, or both, and under section 553(d)(1) of the Administrative

Procedure Act (APA), are not subject to a 30-day delay in effective

date. The redesignation of paragraphs (d) and (e) to paragraphs (c) and

(d) in Sec. 625.24 is not substantive and under section 553(d) is not

subject to a 30-day delay in effective date.

List of Subjects in 50 CFR Part 625

Fisheries, Reporting and recordkeeping requirements.

Dated: May 27, 1994.

Charles Karnella,

Acting Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR Part 625 is 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 to 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 section 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 by

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 by

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, which

obstructs the meshes of the net in any manner.

(2) No person on any vessel may possess or fish with 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 lb (45.3 kg)

or more of summer flounder from May 1 through October 31 or 200 lb

(90.6 kg) or more of summer flounder from November 1 through April 30

that are subject to the minimum mesh size may not have ``available for

immediate use'' any net, or any piece of net, not meeting the minimum

mesh size requirement, or any net, or any piece of net, with 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 and operators of otter trawl vessels issued a permit

under Sec. 625.4, that fish with, or possess nets or pieces of net on

board, that do not meet the minimum mesh requirements and that are not

stowed in accordance with Sec. 625.24(f), may not retain 100 lb (45.3

kg) or more of summer flounder from May 1 through October 31, or 200 lb

(90.6 kg) or more of summer flounder from November 1 through April 30.

Summer flounder on board these vessels must be stored, so as to be

readily available for inspection, in standard 100-lb (45.3 kg) totes or

fish boxes having 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).

* * * * *

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. 94-13518 Filed 5-31-94; 1:57 pm]

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