# 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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A97-18117

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** July 11, 1997
- **Citation:** 62 FR 37154

## Text

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.

-----------------------------------------------------------------------

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-18117. Public record. Not legal advice.