Fisheries of the Northeastern United States; Fishery Management Plan for the Summer Flounder, Scup, and Black Sea Bass Fisheries (FMP); Recreational Measures for the 1997 Summer Flounder Fishery

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 970318057-7158-02; I.D. 022097C]

RIN 0648-AJ42

Fisheries of the Northeastern United States; Fishery Management

Plan for the Summer Flounder, Scup, and Black Sea Bass Fisheries (FMP);

Recreational Measures for the 1997 Summer Flounder Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule and correction.

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SUMMARY: NMFS issues this rule to amend the regulations implementing

the

[[Page 37155]]

Fishery Management Plan for the Summer Flounder, Scup, and Black Sea

Bass Fisheries (FMP) in order to implement management measures for the

1997 summer flounder recreational fishery. The measures include no

closed season, a possession limit of ten fish per person, and a minimum

fish size of 14.5 inches (36.8 cm). The intent of this rule is to

comply with implementing regulations for the fishery that require NMFS

to publish measures for the current fishing year that will prevent

overfishing of the resource. This rule also makes minor technical

changes to 50 CFR part 648 that are unrelated to implementing these

management measures.

DATES: Effective July 8, 1997.

ADDRESSES: Copies of the Environmental Assessment 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: Regina L. Spallone, Fishery Policy

Analyst, (508) 281-9221.

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.

Section 648.100 outlines the process for determining annual

commercial and recreational catch quotas and other restrictions for the

summer flounder fishery. Pursuant to Sec. 648.100, 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 April 8, 1997 (62 FR

16753): (1) No closed season, (2) a possession limit of ten fish per

person, and (3) a minimum fish size of 14.5 inches (36.8 cm).

Comments and Responses

One comment from North Carolina concerning the proposed measures

was received during the public comment period, which ended May 8, 1997.

Comment: North Carolina does not support the 14.5 inch (36.8 cm)

minimum fish size for three reasons: It is incompatible with the size

requirements in its summer flounder commercial fishery and its southern

flounder fishery; the larger size limit discriminates against southern

states, where the size limit has more of an impact than the bag limit;

and the increase of 0.5 inch (1.3 cm) in minimum size creates

enforcement problems.

Response: NMFS disagrees that the size limit for the commercial and

recreational fishery must be the same. Management measures such as bag

limits and fish sizes are established to achieve a harvest limit for a

segment of the fishery. Since each segment (commercial and

recreational) has differing harvest limits, different management

measures were found to be appropriate for each.

The comment states that the size limit has a greater impact than

the bag limit for the southern states. NMFS agrees with this statement.

The size limit should have a greater impact (in reaching the required

reduction in harvest) than the bag limit in the northern states as

well. The Council and Commission, in making their recommendation to

NMFS, noted that, due to the projected overage of the harvest limit in

1996, some reductions in recreational catch are necessary to reach the

1997 harvest limit, which is the same as the 1996 limit. Since the

recreational sector was not constrained by the bag limit in 1996, the

Council and Commission decided to meet the reduction by increasing the

size limit. The bag limit has been increased to prevent a decrease in

participation in the recreational fishery.

The comment letter indicates that an enforcement officer could not

easily issue a citation for a fish between 14.0 (35.6 cm) and 14.5

inches (36.8 cm). NMFS does not believe that an enforcement officer

would have any difficulty in making such a measurement.

Changes from the Proposed Rule

This rule also makes minor technical changes to 50 CFR part 648,

Fisheries of the Northeastern United States, that are unrelated to

implementing the above management measures. These technical changes

were not included in the proposed rule. These revisions merely correct

omissions and errors that occurred in making earlier revisions to the

consolidated Northeast fisheries regulations.

In Sec. 648.12, paragraphs (a) through (c) are added, as they were

inadvertently deleted during the publication of the final rule

implementing management measures for the black sea bass fishery.

In Sec. 648.14, paragraph (a)(103) was omitted during the

consolidation of the regulations of the Fisheries of the Northeastern

United States and is added.

In Sec. 648.14, paragraph (c)(1), an error was made in the

reference to Sec. 648.86(c) and is corrected. Also in paragraph (c),

paragraphs (11), (12), (13), (15), (18) and (19), the references to

Sec. 648.82(j) are incorrect, because this final rule redesignate

Sec. 648.82(j) to (k). These references are corrected to reflect that

redesignation.

In Sec. 648.52, paragraph (a), a spelling error is corrected.

In Sec. 648.73, paragraphs (a)(2) and (3), errors were made in the

notation of coordinates and are corrected.

In Sec. 648.82, a second paragraph (j) was added, inadvertently

overwriting an original paragraph (j). Paragraph (j) is redesignated as

(k) and the original (j) is added. In paragraph (k), references to (j)

are revised to reflect its redesignation.

In Sec. 648.86, paragraph (b) and (d) are duplicates. Paragraph (b)

is deleted and paragraphs (c) and (d) are redesignated as (b) and (c).

Classification

This rule implements management measures for the recreational

summer flounder fishery that will enhance the effectiveness of the FMP.

The measures contained in this rule have already been implemented

by the applicable states under the Atlantic Coastal Fishery Cooperative

Management Act. Consequently, Federal permit holders are already

subject to the measures. Since all affected entities are already

subject to the measures, it is unnecessary under 5 U.S.C. 553(d)(3) to

delay the effective date of this rule for 30 days. Accordingly, since

the fishery has already started, the rule is being made effective upon

the date of filing for public inspection at the Office of the Federal

Register.

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 of the Department of Commerce certified to

the Chief Counsel for Advocacy of the Small Business Administration

that this action would not have a significant economic impact on a

substantial number of small entities, such as the charter boats and

head boats that participate in the recreational fishery. The reasons

were published in the proposed rule and are not repeated here. No

comments were received concerning

[[Page 37156]]

this determination. As a result, no regulatory flexibility analysis was

prepared.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: July 3, 1997.

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 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. 648.12, paragraphs (a) through (c) are added to read as

follows:

Sec. 648.12 Experimental fishing.

* * * * *

(a) The Regional Administrator may not grant such an exemption

unless he/she determines that the purpose, design, and administration

of the exemption is consistent with the management objectives of the

respective FMP, the provisions of the Magnuson-Stevens Act, and other

applicable law, and that granting the exemption will not:

(1) Have a detrimental effect on the respective resources and

fishery;

(2) Cause any quota to be exceeded; or

(3) Create significant enforcement problems.

(b) Each vessel participating in any exempted experimental fishing

activity is subject to all provisions of the respective 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

Administrator to each vessel participating in the exempted activity.

This letter must be carried on board the vessel seeking the benefit of

such exemption.

(c) Experimental fishing for surf clams or ocean quahogs will not

require an allocation permit.

3. In Sec. 648.14, paragraph (a)(103) is added, and paragraphs

(c)(1), (11), (12), (13), (15), (18), and (19) are revised to read as

follows:

Sec. 648.14 Prohibitions.

(a) * * *

(103) Sell, barter, trade or transfer, or attempt to sell, barter,

trade or otherwise transfer, other than transport, any multispecies,

unless the dealer or transferee has a dealer permit issued under

Sec. 648.6.

* * * * *

(c) * * *

(1) Fish for, possess at any time during a trip, or land per trip

more than the possession limit of regulated species specified in

Sec. 648.86(c) after using up the vessel's annual DAS allocation or

when not participating in the DAS program pursuant to Sec. 648.82,

unless otherwise exempted under Sec. 648.82(b)(3) or Sec. 648.89.

* * * * *

(11) If the vessel has been issued a limited access multispecies

permit and fishes under a multispecies DAS, fail to comply with gillnet

requirements and restrictions specified in Sec. 648.82(k).

(12) If the vessel has been issued a limited access Day gillnet

category designation, fail to comply with the restriction and

requirements specified in Sec. 648.82(k)(1).

(13) If the vessel has been issued a Day gillnet category

designation, fail to remove gillnet gear from the water as described in

Sec. 648.82(g) and Sec. 648.82(k)(1)(iv).

* * * * *

(15) Produce, or cause to be produced, gillnet tags under

Sec. 648.82(k)(1) without the written confirmation from the Regional

Administrator described in Sec. 648.82(k)(1)(ii).

* * * * *

(18) If the vessel has been issued a Trip gillnet category

designation, fail to comply with the restrictions and requirements

specified in Sec. 648.82(k)(2).

(19) Fail to comply with the exemption specifications as described

in Sec. 648.86(b)(2).

* * * * *

4. In Sec. 648.52, paragraph (a) is revised to read as follows:

Sec. 648.52 Possession limits.

(a) Owners or operators of vessels with a limited access scallop

permit that have declared out of the DAS program as specified in

Sec. 648.10, or that have used up their DAS allocations, and vessels

possessing a General scallop permit, unless exempted under the state

waters exemption program described under Sec. 648.54, are prohibited

from possessing or landing per trip more than 400 lb (181.44 kg) of

shucked, or 50 bu (17.62 hl) of in-shell scallops with not more than

one scallop trip allowable in any calendar day.

* * * * *

5. In Sec. 648.73, paragraphs (a)(2) and (3) are revised to read as

follows:

Sec. 648.73 Closed areas.

(a) * * *

(2) New York Bight. The polluted area and waste disposal site known

as the ``New York Bight'' and located at 40 deg.25'04'' N. lat.,

73 deg.42'38'' W. long., and with a radius of 6 nm in every direction

from that point, extending further northwestward, westward and

southwestward between a line from a point on the arc at 40 deg.31'00''

N. lat., 73 deg.43'38'' W. long., directly northward toward Atlantic

Beach Light in New York to the limit of the state territorial waters of

New York; and a line from the point on the arc at 40 deg.19'48'' N.

lat., 73 deg.45'42'' W. long., to a point at the limit of the state

territorial waters of New Jersey at 40 deg.14'00'' N. lat.,

73 deg.55'42'' W. long.

(3) 106 Dumpsite. The toxic industrial site known as the ``106

Dumpsite'' and located between 38 deg.40'00'' and 39 deg.00'00'' N.

lat., and between 72 deg.00'00'' and 72 deg.30'00'' W. long.

* * * * *

6. In Sec. 648.82, paragraph (j) added at 62 FR 15388 on April 1,

1997, is redesignated as (k), and newly designated (k)(1)(i) and (iv)

are revised to read as follows.

Sec. 648.82 Effort-control program for limited access vessels.

* * * * *

(k) * * *

(1) * * *

(i) Number and size of nets. Vessels may not fish with, haul,

possess, or deploy more than 80 roundfish gillnets or 160 flatfish

gillnets. Vessels may fish any combination of roundfish and flatfish

gillnets, up to 160 nets, provided that the number of roundfish and

flatfish gillnets does not exceed the limitations specified in this

subparagraph, and the nets are tagged in accordance with paragraph

(k)(1)(ii) of this section. Nets may not be longer than 300 ft (91.44

m), or 50 fathoms, in length.

* * * * *

(iv) Declaration of time out of the gillnet fishery. (A) During

each fishing year, vessels must declare, and take, a total of 120 days

out of the multispecies gillnet fishery. Each period of time declared

and taken must be a minimum of 7 consecutive days. At least 21 days of

this time must be taken between June 1 and September 30 of each fishing

year. The spawning season time out period required by Sec. 648.82(g)

will be credited toward the 120-days time out of the multispecies

gillnet fishery. If a vessel owner has not declared and taken, any or

all of the remaining periods of time required by the last possible date

to meet these requirements, the vessel is prohibited from fishing for,

possessing, or landing regulated multispecies harvested with gillnet

gear, or from having gillnet gear on board the vessel that is not

stowed in accordance with

[[Page 37157]]

Sec. 648.81(e)(4), while fishing under a multispecies DAS, from that

date through the end of the period between June 1 and September 30, or

through the end of the fishing year, as applicable.

(B) Vessels shall declare their periods of required time out

following the notification procedures specified in Sec. 648.10(f)(2).

(C) During each period of time declared out, a vessel is prohibited

from fishing with non-exempted gillnet gear. However, the vessel may

fish in an exempted fishery as described in Sec. 648.80, or it may fish

under a multispecies DAS provided it fishes with gear other than non-

exempted gillnet gear.

* * * * *

7. In Sec. 648.86 as published at 62 FR 15388 on April 1, 1997,

instruction 12 is revised to read as follows:

``12. In Sec. 648.86, paragraph (a)(1) is revised and paragraphs

(c) and (d) are added to read as follows:''

8. In Sec. 648.86, paragraph (b) is redesignated as (c) and present

paragraph (c) is redesignated as (b); newly redesignated paragraph (b)

is amended by revising paragraphs (b)(1)(i), (ii) introductory text,

(iii), and (b)(2); and paragraph (d) is removed to read as follows:

Sec. 648.86 Possession restrictions.

* * * * *

(b) * * *

(1) Landing limit north of 42 deg.00' North Latitude. (i) Except as

provided in paragraph (b)(2) of this section, a vessel fishing under a

NE multispecies DAS may land up to 1,000 lb (453.6 kg) of cod per day,

or any part of a day, for each of the first 4 days of a trip, and may

land up to 1,500 lb (680.4 kg) of cod per day for each day, or any part

of a day, in excess of 4 consecutive days. A day, for the purposes of

this paragraph, means a 24-hour period. Vessels calling-out of the

multispecies DAS program under Sec. 648.10(c)(3) that have utilized

``part of a day'' (less than 24 hours) may land up to an additional

1,000 lb (453.6 kg) of cod for that ``part of a day'', however, such

vessels may not end any subsequent trip with cod on board within the

24-hour period following the beginning of the ``part of the day''

utilized (e.g., a vessel that has called-in to the multispecies DAS

program at 3 p.m. on a Monday and ends its trip the next day (Tuesday)

at 4 p.m. (accruing a total of 25 hours) may legally land up to 2,000

lb (907.2 kg) of cod on such a trip, but the vessel may not end any

subsequent trip with cod on board until after 3 p.m. on the following

day (Wednesday)). Cod on board a vessel subject to this landing limit

must be separated from other species of fish and stored so as to be

readily available for inspection.

(ii) A vessel subject to the cod landing limit restrictions

described in paragraph (b)(1)(i) of this section may come into port

with and offload cod in excess of the landing limit as determined by

the number of DAS elapsed since the vessel called into the DAS program,

provided that:

(A) * * *

(B) * * *

(iii) A vessel that has not exceeded the cod landing limit

restrictions described in paragraph (b)(1)(i) of this section and that

is offloading some or all of its catch without calling out of the

multispecies DAS program under Sec. 648.10(c)(3), is subject to the

call-in requirement described in paragraph (b)(1)(ii)(B) of this

section.

(2) Exemption. A vessel fishing under a NE multispecies DAS is

exempt from the landing limit described in paragraph (b)(1) when

fishing south of 42 deg.00' N. lat., provided that it does not fish

north of this exemption area for a minimum of 30 consecutive days (when

fishing under the multispecies DAS program), and has on board an

authorization letter issued by the Regional Administrator. Vessels

exempt from the landing limit requirement may transit the GOM/GB

Regulated Mesh Area north of the 42 deg.00' N. lat., provided that

their gear is stowed in accordance with one of the provisions of

Sec. 648.81(e).

9. 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 14.5 inches (36.8 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.

* * * * *

10. 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 ten 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. * * *

* * * * *

[FR Doc. 97-18117 Filed 7-8-97; 4:19 pm]

BILLING CODE 3510-22-F