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

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.

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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]

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