[Federal Register Volume 63, Number 11 (Friday, January 16, 1998)]
[Proposed Rules]
[Pages 2651-2654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1154]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[I.D. 052097C]
Fisheries of the Northeastern United States; Decision on Petition
for Rulemaking for Redistribution of the Summer Flounder Quota
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Decision on petition for rulemaking.
-----------------------------------------------------------------------
SUMMARY: NMFS announces its decision to not undertake the rulemaking
requested in a petition submitted by the State of Connecticut,
Commissioner of Environmental Protection (Connecticut). Connecticut
petitioned the Secretary of Commerce (Secretary) to eliminate the
current state-specific allocation of the commercial quota for summer
flounder and implement one of two options specified in its place. The
decision to deny the petition at this time is based on public comments
received on this petition for rulemaking and on the Mid-Atlantic
Fishery Management Council's (Council) and on the Atlantic States
Marine Fisheries Commission's (Commission) decision to retain the
current state-by-state quota system for summer flounder in Amendment 10
to the Fishery Management Plan for the Summer Flounder, Scup, and Black
Sea Bass Fisheries (FMP).
FOR FURTHER INFORMATION CONTACT: Gary C. Matlock, Ph.D., Director,
Office of Sustainable Fisheries, (301) 713-2334, or Mark R. Millikin,
(301) 713-2341.
SUPPLEMENTARY INFORMATION: On June 2, 1997 (62 FR 29694), NMFS
published a notice of receipt of a petition for rulemaking submitted by
Connecticut. The petition requested the Secretary to implement either a
commercial allocation for summer flounder of two winter coastwide
periods and a state-by-state summer period, or a coastwide allocation
system for all three periods (two winter periods and a summer period).
Connecticut further petitioned that any regulation implementing a
state-by-state allocation system base the percent shares for each state
upon landings data for the period 1990 through 1992. On behalf of the
Secretary, NMFS considered the petition and comments received on the
petition.
In considering this petition, NMFS also considered actions
surrounding Amendment 10 to the FMP (Amendment 10) as they relate to
the summer flounder quota. Amendment 10 was approved by NMFS on
November 21, 1997 (62 FR 63872, December 3,
[[Page 2652]]
1997). In Amendment 10, the Council and Commission reconsidered the
method by which the FMP allocates the quota for the summer flounder
commercial fishery. All of the alternatives advocated by Connecticut in
its petition were thoroughly considered by the Council in the
development of Amendment 10. After considering the alternatives, the
Council and Commission chose to maintain the status quo for the
commercial summer flounder fishery and to retain the current state-by-
state allocation. The Council and Commission noted during the
discussions of Amendment 10 that many states have developed quota
management systems to account for seasonal variations in abundance and
in the size of the vessels that target summer flounder. With a
coastwide system, as suggested in Connecticut's petition, states would
lose that flexibility either during the winter or over the entire year.
No alternative system was identified that could provide the same
level of equity as the current system, particularly between the
northern and the southern states and between the small day boats and
larger offshore vessels. The Council and Commission further noted that
revising the years for the baseline allocation to 1990-92 was discussed
at length during the development of Amendment 10. This time period was
rejected under Amendment 10 because the shorter time period did not
account adequately for historical participation in the fishery when
summer flounder were more abundant and generally more available to the
fishery along the entire coast. In light of the deficiencies noted in
the alternatives, the Council and Commission decided to maintain the
current state-by-state system.
Given that the Council and Commission thoroughly considered these
proposed alternatives before proposing to retain the state-by-state
allocation system and that the Council's actions were determined to be
consistent with the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act), the national standards, and
other applicable laws, NMFS could find no compelling justification for
any action other than what was approved in Amendment 10.
Since the approved commercial quota allocation system complies with
the Magnuson-Stevens Act and other applicable laws, NMFS believes that
any changes to the allocation system are better handled through the FMP
amendment process, which affords all members of the affected public an
opportunity to comment on proposed measures. Connecticut participated
in the Amendment 10 process as a member of the Commission but was not
able to convince the Council or the Commission to make the modification
it advocates.
In October 1997, the Commission attempted again to address the
issue of different minimum fish sizes in various states over past
years. The Commission conducted public hearings on a proposed
Commission amendment (Amendment 11) in October 1997. Amendment 11
contained an analysis that would be used to redistribute the quota
among the states. The redistribution would have been achieved for 1998
through the quota transfer provision already contained in the FMP. The
Commission Board disapproved Amendment 11 during the annual meeting
held on October 20-23, 1997. The disapproval noted that ``the Board
could find no compromise sufficient to resolve the many regional
differences invoked by this Amendment.''
Comments and Responses
A total of 74 letters; including 1 letter from the Commonwealth of
Massachusetts, 1 letter from the State of New Hampshire, 1 letter from
the State of Connecticut, 1 cosigned letter from Connecticut senators
and from one representative, 1 letter from the Southern New England
Fishermen's and Lobstermen's Association, and 33 individual form
letters and 36 individual form postcards were received during the
comment period for this action, which ended on August 1, 1997. Several
of the letters contained comments on the FMP in general or offered
suggestions for future management that are not within the scope of this
action. Only comments relevant to the proposed petition for rulemaking
that were received by NMFS prior to the close of business on the date
specified as the close of comments were considered for this action.
Comment: The State of New Hampshire, the Commonwealth of
Massachusetts, and several individuals support the petition. New
Hampshire specifically agreed with Connecticut's point in the petition
regarding the inequities in state quota shares based on historical
summer flounder landings because some states had smaller minimum fish
sizes than those implemented by Connecticut and by other states during
the base period 1980-89. Connecticut Senators Lieberman and Dodd and
Representative Gejdenson also feel that the current quota system did
not take into consideration the stricter conservation requirements in
some states, including in Connecticut. New Hampshire feels that the
current system is flawed and in need of correction.
Response: NMFS believes the Council addressed the minimum fish size
issue clearly in Amendment 10 to the FMP. The Council explained that
landings data reflect minimum size regulations implemented in each of
the states. Landings do not reflect the actual sizes of fish available
to the gear, caught by commercial fishermen, and discarded dead.
Hypothetically speaking, if more restrictive minimum size regulations
had been implemented in southern states during those years, more fish
would have been discarded dead and there would have been increased
pressure on, and increased landings of, larger fish. As such, the
availability of larger fish to the northern states could have been
reduced. Consequently, the landings in the northern states could have
been reduced. In reality, the fact that some northern states had a
larger minimum size than some southern states reflects that fewer fish
smaller than that length had been traditionally available to commercial
fishermen in the northern states.
Comment: Connecticut Senators Lieberman and Dodd and Representative
Gejdenson support a coastwide quota and uniform landing limits, as
described in the petition.
Response: As with the response to the comment above, NMFS believes
the Council addressed the coastwide quota and uniform trip limits issue
clearly in Amendment 10 to the FMP. The Council and Commission
determined, and NMFS agrees, that a coastwide quota would not provide
the flexibility afforded under the state-by-state system. Since the
inception of the current system, state personnel have developed and
refined management systems to account for seasonal variations in
abundance, as well as in the vessels that harvest summer flounder. In
addition, the Council and Commission noted, and NMFS agrees, that it
would be difficult to design a coastwide system that provides for an
equitable distribution between the northern and southern participants,
as well as between the smaller day boats and the larger offshore
vessels. Uniform landing limits, it was noted, may not be suitable for
all vessels, gears, or areas. For these reasons, the Council and
Commission concluded that the coastwide systems proposed in Amendment
10, and again proposed by this petition, were found to not provide the
same level of equity to all user groups and areas as the existing quota
allocation system.
[[Page 2653]]
Comment: The Commonwealth of Massachusetts commented that, since
the commercial quota allocation and management regimes for the related
fisheries of summer flounder, scup, and black sea bass are all
different, the state-by-state allocation system for summer flounder
discriminates between residents of different states and violates
national standard 4.
Response: That three fisheries have different allocation systems
does not mean that one is discriminatory. Each system was implemented
through an FMP amendment that was found consistent with all of the
national standards. NMFS notes that to recognize the varying levels of
historical participation in each of the states is not inherently
discriminatory. Because each state participated in a fishery to varying
degrees, each state receives a different portion of the whole,
reflecting its relative level of historical participation. The same
basis for distribution is employed for all states. Thus, there is no
discrimination between residents of different states.
Comment: The State of Connecticut feels that the current commercial
quota management system violates (1) national standard 1 (overfishing)
because it has not prevented overfishing, (2) national standard 5
(efficiency) because it does not consider efficiency in the utilization
of the resource, (3) national standard 7 (minimize costs) because it
fails to minimize costs, and (4) national standard 10 (safety at sea)
because fishermen travel to states with the most favorable trip limit,
increasing the risk of mishap or disaster at sea. The Commonwealth of
Massachusetts also feels that the current state-specific commercial
quota system violates national standard 1 because it has been
unsuccessful in reducing fishing mortality although it has been
implemented for 5 years. Massachusetts urges NMFS to develop the
regulations suggested in the petition since, as the current system has
not reduced fishing mortality, quotas are likely to get smaller.
Lastly, Massachusetts notes that the current system forces fishermen to
travel to ports that are open to landings or that have higher trip
limits, therefore increasing the risk to vessel and life at sea, in
violation of national standard 10 and negatively impacting New England
ports, which lose those landings while other ports benefit from them.
Response: Since Amendment 10 to the FMP contemplated alternatives
to the commercial quota allocation method, the Council was required to
review all alternatives for consistency with the national standards. As
with the minimum fish size issue, NMFS believes the Council addressed
this issue adequately and clearly in that document. The points of those
discussions are reiterated here.
National standard 1 - The most recent stock assessment, completed
in August 1997, indicates that the summer flounder stock is at a medium
level of historical (1968-96) abundance and is overexploited. The
fishing mortality rate (F) estimated for 1996 was 1.0 (an exploitation
rate of 58 percent). While this estimate of fishing mortality is above
the overfishing definition (Fmax = 0.24), it is
significantly below the peak fishing mortality rate estimated for 1992
(F = 2.1). More importantly, the spawning stock biomass estimate for
1996 indicated the highest level since 1983. Additionally, the age
structure is improving, with 34 percent of the biomass age 2 and older
in 1996, compared with 17 percent in 1992. The size of the stock older
than age 2 is an important indicator of the stock health, as it may
reflect more accurately the number of successful spawners. While the
stock is showing signs of improvement, the improvement is not occurring
at as high a rate as anticipated by managers. NMFS notes that quota
overages and unaccounted for mortality (underreporting and/or discard)
are more likely to explain the slow recovery than the manner in which
the quota is allocated. Overall, the management scheme is allowing a
stock rebuilding and a progression toward an end of overfishing.
National standard 5 - The Council and Commission have developed a
system that is intended to operate at the lowest possible cost with
regard to effort, administration, and enforcement, given the objectives
of the FMP. NMFS has determined that the state-by-state allocation
system makes efficient use of fishery resources and is, therefore,
consistent with national standard 5.
National standard 7 - Amendment 10, a joint document from both the
Council and Commission, contains management measures that will be
implemented by the Commission as part of its interstate management
process. These measures, called compliance criteria, include a
requirement that states document all summer flounder commercial
landings in their states. This will aid in the elimination of double
counting of any landings and, therefore, help keep enforcement costs
down, as much effort is spent tracking down landings in order to
maintain the integrity of the quota. Such costs are independent of the
allocation system. Under any other scenario proposed in this petition,
costs are still incurred with regard to quota monitoring, enforcement
of trip limits, and seasons.
National standard 10 - The state-by-state quota allocation system
for summer flounder is not inconsistent with national standard 10. Many
of the New England vessels are permitted to land in neighboring states.
These and other vessels have traditionally traveled long distances to
fish for and land summer flounder, so risks at sea cannot be ascribed
solely to behavior resulting from a state-by-state quota allocation.
The state-by- state quota system does not require a vessel to travel to
distant ports, and an individual vessel operator must weigh the
benefits of landing in a distant port versus the costs associated with
that travel with regard to steaming time, fuel consumption, weather,
and other factors.
Comment: Connecticut's petition stated that, should the alternative
embracing a state-by-state summer allocation be implemented, the
percent shares for each state should be based upon landings data for
the period 1990 through 1992.
Response: When the quota allocation system was developed, the
Council and Commission reviewed the history of the fishery and
recommended a 10-year time frame as the appropriate historical period
upon which quotas would be based. This decision was discussed
thoroughly. While proposals were made to shorten the period to as
little as 3 years, it was recognized that short-term variations in
landings did occur and that quotas based on a short time series would
penalize one segment of the fishery while granting others what was
considered an excessive share. The states, through the Commission,
approved the 10-year time period and the method of allocating the
quota.
Comment: One form letter requests the Secretary to use his office
to assure that Council plans comply with the requirements of the
Magnuson-Stevens Act which, the letter states, the plans do not
currently do.
Response: The Magnuson-Stevens Act requires that any management
plan prepared, and any regulation promulgated to implement any such
plan, shall be consistent with the 10 national standards for fishery
conservation and management, other provisions of the Magnuson-Stevens
Act, and other applicable laws. Indeed, any Council regulatory
submission adopted by NMFS has been thoroughly reviewed for its
consistency with every applicable legal requirement. There is no
exception to this requirement.
Authority: 16 U.S.C. 1801 et seq.
[[Page 2654]]
Dated: January 9, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 98-1154 Filed 1-15-98; 8:45 am]
BILLING CODE 3510-22-F
