[Federal Register Volume 62, Number 232 (Wednesday, December 3, 1997)]
[Rules and Regulations]
[Pages 63872-63876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31708]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 970908229-7277-02; I.D. 082797A]
RIN 0648-AJ55
Fisheries of the Northeastern United States; Amendment 10 to the
Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan
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 the approved measures
contained in Amendment 10 to the Fishery Management Plan for the Summer
Flounder, Scup, and Black Sea Bass Fisheries (FMP). Approved measures
of Amendment 10 include a continuation of the moratorium for commercial
vessels; minimum mesh-size requirements throughout the body, extension,
and codend of trawl nets for
[[Page 63873]]
the directed summer flounder fishery; removal of the requirement that a
vessel land summer flounder during a 52-week period in order to retain
a moratorium permit; and a prohibition of the transfer of summer
flounder at sea. This action is intended to enhance the rebuilding of
the summer flounder resource in accordance with the objectives of the
FMP.
DATES: All measures are effective on January 1, 1998, except that the
baseline date for measuring vessel upgrades in
Sec. 648.4(a)(3)(i)(C)(1) and (2) is effective January 2, 1998 and the
gear restrictions in Sec. 648.104(a)(1) are effective June 3, 1998.
ADDRESSES: Copies of Amendment 10, the environmental assessment, and
the regulatory impact review are available from David R. Keifer,
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115
Federal Building, 300 S. New Street, Dover, DE 19904-6790.
FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, Fishery Policy
Analyst, 978-281-9279.
SUPPLEMENTARY INFORMATION:
Background
Amendment 10 was prepared 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. A notice of availability for the amendment
was published in the Federal Register on September 3, 1997 (62 FR
46470), and the proposed rule to implement Amendment 10 was published
in the Federal Register on September 19, 1997 (62 FR 49195). The notice
of availability and the proposed rule solicited public comments through
November 3, 1997. All comments received by the end of the comment
period, whether specifically directed to Amendment 10 or to the
proposed rule, were considered in the approval decision on Amendment
10.
Amendment 10 proposed a number of changes to the summer flounder
regulations. Details concerning the development of Amendment 10 were
provided in the notice of proposed rulemaking and are not repeated
here.
NMFS, on behalf of the Secretary of Commerce, has approved the
measures that (1) modify the commercial minimum mesh size, (2) continue
the moratorium on entry of additional commercial vessels, (3) remove
the landing requirements applicable to permit retention, (4) modify the
vessel replacement criteria, (5) allow federally permitted charter and/
or party vessels to possess fillets less than the minimum size if in
possession of a permit to do so issued by their state, and (6) prohibit
transfer of summer flounder at sea. Amendment 10 also contains measures
adopted by the Commission as part of its interstate management process.
Defined as a compliance criterion, this measure would require states to
document all summer flounder commercial landings in their state that
are not otherwise included in the Federal monitoring of permit holders.
This management measure is not part of the Federal regulatory process
and is, therefore, not detailed in this rule. Details of this measure
are described in Amendment 10, which is available from the Council (see
ADDRESSES).
In addition, the Council re-evaluated in Amendment 10 the
commercial quota system implemented by Amendment 2. During the public
hearings for Amendment 10, the Council and Commission proposed several
alternative quota allocation systems, with the status quo being the
preferred alternative. After receiving and considering public comments,
the Council and Commission voted to maintain the existing state-by-
state commercial quota allocation system. The Council and Commission
felt that the current system allows states the most flexibility in
managing their quotas by implementing state subquotas and trip limits.
Disapproved Measure
After a review of Amendment 10, NMFS found that the de minimus
status provision was not consistent with national standard 7, raised
questions of consistency with national standard 1, and appeared
inconsistent with other applicable law. This measure would require an
annual examination of state landings to determine whether landings in
that state during the preceding year for which data are available were
less than 0.1 percent of the overall annual quota. This determination
was to be based on landings for the last preceding year for which data
are available. If a state met the 0.1 percent criterion, it would be
granted de minimus status. This provision is intended to provide a
small bycatch fishery in a state where summer flounder would otherwise
be discarded. A state's failure to close its fishery when its quota is
harvested would prevent the attainment of the fishing mortality rate
goals in the FMP, since vessels without Federal permits fishing
exclusively in that state's waters could continue to land summer
flounder. This would result in overfishing and would render the measure
inconsistent with national standard 1.
If de minimus status does not, at the very least, require a state
to impose landing constraints, the provision would encourage owners of
vessels that have not traditionally landed in that state to land
amounts of summer flounder much greater than they could land in their
home port states. This could result in the state's de minimus quota
being rapidly exceeded and compound the overfishing situation if a de
minimus state is not required to close its fishery when its de minimus
quota is harvested.
Further, the standard established to determine de minimus status
(examination of landings data for the last year for which data are
available) would not allow for an accurate calculation of
qualification. Landings in the intervening time period in the state
under consideration for de minimus status could well exceed the
threshold for such status. Thus, such a determination would not reflect
accurately the true status of the state. The de minimus measure would
impose an administrative burden or cost to make this annual
determination, without conferring any demonstrable administrative or
conservation benefit. This contravenes the requirements of national
standard 7. It is unclear whether a de minimus state must close its
state fishery when its quota is harvested.
For the reasons stated above, this measure would impose an
administrative burden or cost to make this determination, without
conferring any demonstrable administrative benefit. This contravenes
the requirements of national standard 7. Further, the failure of a
state to close its fishery when its quota is harvested would result in
overfishing and would render the measure inconsistent with national
standard 1. As a result of this review, NMFS has disapproved the de
minimus measure.
Comments and Responses
Two comments on Amendment 10 were received. One comment was
received from the North Carolina Division of Marine Fisheries (NCDMF)
and another from a member of the fishing industry.
Comment 1: The NCDMF wrote to support all of the provisions in
Amendment 10, including the state-by-state commercial quota allocation
system, which, according to the comment, allows states to manage their
fisheries in accordance with historical management practices such as
trip limits, bycatch limits, and seasonal
[[Page 63874]]
closures. Although supportive of Amendment 10, NCDMF suggested that the
revised minimum mesh-size requirement in the amendment should be
implemented immediately upon approval because mesh of that size is
available. NCDMF notes that a large portion of the annual summer
flounder quota is taken during the first 6 months of the season, and
delayed implementation of the measure will negate the desired
conservation effect for the 1998 fishery.
Response: Amendment 10 specified that the Council would determine
the date of effectiveness of the revised minimum mesh requirement based
upon an assessment of the availability of net construction materials,
which would help to alleviate any localized shortages of twine that
might otherwise occur. The Council found that mesh is not available on
a coastwide basis and recommended the 6-month delay. NMFS concurs.
Comment 2: A member of the fishing industry indicated
dissatisfaction with the minimum mesh-size requirements of Amendment
10. The commenter wrote that the mesh-size requirements will inflict
financial hardship on day boat trawlers of western Long Island, New
York, and northern New Jersey because they will have to purchase new
nets to fish for scup and black sea bass, rather than just changing
codends to fish for these species as they currently do. The commenter
disputed the justification given in Amendment 10 for requiring 5.5-inch
(14.0-cm) mesh in the body, extension, and codend of summer flounder
trawl nets by stating that the practice of constricting the codend of
summer flounder nets to circumvent the minimum mesh-size regulations is
not a problem. Also, the commenter expressed concern that if Amendment
10 is adopted, summer flounder will be the only species that requires
regulated mesh in areas of the net other than the codend. Finally, the
commenter was opposed to the fact that the minimum mesh-size
regulations are not applicable to vessels in the summer flounder small-
mesh exemption program.
Response: Current scup and black sea bass minimum mesh-size
regulations apply only throughout the codend of the net. However, the
black sea bass regulations allow the Council, in future years, to
require minimum mesh size to be applied throughout the entire net.
Also, it is not clear that the requirement will necessarily result in a
need to purchase new nets to fish for scup and black sea bass. A fisher
may still use the same net, albeit with a 5.5-inch (14.0-cm) mesh
extension and body, to fish for these two species by changing only the
codend to conform with the appropriate regulations. The reason for the
change in the mesh regulations is that the Council is concerned about
the ``choking off'' or the constriction of codends in trawl nets in the
summer flounder fishery. The Council was concerned that continued poor
compliance with mesh-size regulations would result in higher fishing
mortality rates and in a decreased rate of stock recovery for summer
flounder. Applying the minimum mesh-size throughout the codend,
extension, and body of the net will eliminate this problem.
Summer flounder is not the only species where minimum mesh- size
regulations apply to portions of the net other than the codend. There
is ample precedence for this requirement. Most notably, the Northeast
multispecies regulations require that vessels fishing under a
multispecies day-at-sea use 6-inch (15.2- cm) square or diamond mesh
throughout the entire net.
The minimum mesh-size requirements do not apply to vessels issued a
summer flounder exemption permit, and fishing from November 1 to April
30 in the ``exemption area'' because the exemption is designed to allow
vessels to retain a bycatch of summer flounder while operating in other
small-mesh fisheries. The exemption allows for the prosecution of a
traditional small- mesh fishery while minimizing discards of summer
flounder. The existence of the exemption program is re-evaluated
annually after a review of sea sampling data, and re-authorized if
appropriate.
Changes From the Proposed Rule
NMFS notes that the Council recommended that May 13, 1997, be the
baseline date for measuring vessel upgrades at the time of replacement.
However, the baseline date was not specified when the Council held
public hearings on Amendment 10, although it is a necessary adjunct
required for administration of the replacement upgrade provision.
Therefore, in order for all potentially affected fishery participants
to have an equal notice of the baseline date, NMFS noted in the
proposed rule its intent to link the baseline date to the rulemaking.
However, the proposed rule was inconsistent in its description of the
date proposed. In one section it proposed to use September 19, 1997--
the date the proposed rule was published. In another, it proposed to
use the date 30 days following publication of the final rule. NMFS
received no comments on this matter. Therefore, this final rule
establishes January 2, 1998 as the baseline, because, as a general
matter, rules are to have prospective effect and some members of
industry may have relied on that date rather than September 19, 1997.
In Sec. 648.4, paragraph (a)(3)(i)(C)(3) is added, which indicates
that a vessel's horsepower, length, gross registered tonnage (GRT), and
net tonnage (NT) may be increased through replacement only once. If
length, GRT, or NT is increased, an increase in the other two
specifications must be performed at the same time, and this type of
increase may be done separately from a horsepower increase. This
provision is contained in Amendment 10, but was inadvertently omitted
from the proposed rule. As such, a prior notice and opportunity for
comment was provided through the notice of availability for Amendment
10. It has been added to this final rule to reflect the Council's
intent.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
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 final rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities as follows:
The final rule implements Amendment 10 by revising a number of
the regulations implementing the FMP and its amendments and by
adding a number of new regulations. No public comments were received
about the Council's economic analysis for Amendment 10 as it
pertains to Regulatory Flexibility Act nor the certification made by
the Assistant General Counsel for Legislation and Regulation of the
Department of Commerce, that this rule would not have a significant
economic impact on a substantial number of small entities, as
mentioned in the proposed rule.
The final rule modifies the commercial minimum mesh size
requirement, continues the moratorium on entry of additional
commercial vessels, modifies the vessel replacement criteria,
removes provisions that pertain to the expiration of the moratorium
permit, and prohibits transfer of summer flounder at sea. Amendment
10 examined alternate state commercial quota allocation mechanisms.
However, no change was made to the existing state-by-state system.
The requirement that minimum mesh size be applied throughout the
net impacts an estimated 42 percent of the participants in the
summer flounder fishery (443 of the 1,063 permit holders); the other
620 are already subject to requirements for minimum mesh throughout
the net because they hold northeast multispecies vessel permits.
Therefore, a substantial number of small entities (42 percent) are
impacted by this rule. However, the compliance costs associated with
the measure are not
[[Page 63875]]
significant under the Regulatory Flexibility Act. Costs were broken
down into trip or variable costs (e.g., fuel, ice, food) and yearly
or fixed costs (e.g., gear, insurance, engine and gear repair,
electronic equipment expenses). Labor costs were not included in the
analysis because labor is generally paid as a percentage of the
total revenues after certain expenses are subtracted. Compliance
costs are less than 1 percent of the total annual costs for offshore
vessels and 1.45 percent for the smaller inshore vessels. Compliance
costs reflect the cost of the gear conversion ranging from $775 for
inshore vessels to $1,354 for offshore vessels versus annualized
vessel costs ranging from $39,695 for vessels 5-50 in gross
registered tonnage to $171,692 for vessels greater than 150 gross
registered tons.
According to the Council, specific data are not available for
quantitative analysis of other new measures (e.g., modification of
vessel replacement criteria and prohibition of transfer of summer
flounder at sea) in Amendment 10. A qualitative analysis conducted
by the Council indicates that those measures would have no
significant impact on a substantial number of small entities because
of their implementation. The National Marine Fisheries Service
(NMFS) reviewed this analysis, and since most measures proposed in
Amendment 10 are administrative in nature, NMFS concurs that the new
measures would result in no significant economic impacts on small
entities. Additionally, the prohibition of transferring summer
flounder at sea and the vessel replacement criteria, would make the
FMP consistent with the Multispecies Fishery Management Plan, and
therefore would create no additional impacts for industry
participants who also participate in that fishery. Meanwhile, a
qualitative examination of the effects of the extension,
indefinitely, of the moratorium on new vessels and maintaining the
state-by-state allocation system for the coastwide quota for the
commercial fishery, indicates that these measures will not result in
a significant economic impact on a substantial number of small
entities. These measures should not cause more than 2 percent of the
vessels or dealers to cease business operations, result in a loss of
5 percent or more of ex-vessel revenues for 20 percent or more of
the participating vessels, nor change compliance costs. If the
moratorium was allowed to expire then it's conceivable that enough
new vessels would enter the fishery, so that a significant number of
vessels already in the fishery would incur a loss of 5 percent or
more in ex-vessel revenues. Similarly, if the state-by-state
allocation of the commercial quota was not continued, then the
states might lose enough flexibility so that some vessels would gain
in ex-vessel revenues, but a substantial number of small entities
might experience a significant loss in ex-vessel revenues.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: November 26, 1997.
Rolland Schmitten,
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. 648.4, paragraph (a)(3)(i)(B)(2) is removed and
reserved, and paragraphs (a)(3)(i)(C), (a)(5)(i)(A)(2), (a)(5)(i)(C),
(a)(5)(ii)(A)(2), (a)(5)(ii)(C), (a)(6)(i)(A)(2), (a)(6)(i)(C) are
revised to read as follows:
Sec. 648.4 Vessel and individual commercial permits.
(a) * * *
(3) * * *
(i) * * *
(C) Replacement vessels. To be eligible for a moratorium permit,
the replacement vessel must meet the following criteria:
(1) The replacement vessel's horsepower may not exceed by more than
20 percent the horsepower of the vessel that was initially issued a
moratorium permit as of January 2, 1998.
(2) The replacement vessel's length, GRT, and NT may not exceed by
more than 10 percent the length, GRT, and NT of the vessel that was
initially issued a moratorium permit as of January 2, 1998.
(3) A vessel's horsepower may be increased through replacement only
once. A vessel's length, GRT, and NT may be increased through
replacement only once. If any of these specifications is increased, any
increase in the other two must be performed at the same time. This type
of increase may be done separately from a horsepower increase.
* * * * *
(5) * * *
(i) * * *
(A) * * *
(2) The vessel is replacing such a vessel and the replacement
vessel meets the requirements of paragraph (a)(5)(i)(C) of this
section.
* * * * *
(C) Replacement vessels. To be eligible for a moratorium permit,
the replacement vessel must be replacing a vessel of substantially
similar harvesting capacity that is judged unseaworthy by the USCG, for
reasons other than lack of maintenance, or that involuntarily left the
fishery during the moratorium. Both the entering and replaced vessels
must be owned by the same person. Vessel permits issued to vessels that
involuntarily leave the fishery may not be combined to create larger
replacement vessels.
* * * * *
(ii) * * *
(A) * * *
(2) The vessel is replacing such a vessel and meets the
requirements of paragraph (a)(5)(i)(C) of this section.
* * * * *
(C) Replacement vessels. See paragraph (a)(5)(i)(C) of this
section.
* * * * *
(6) * * *
(i) * * *
(A) * * *
(2) The vessel is replacing such a vessel and meets the
requirements of paragraph (a)(5)(i)(C) of this section.
* * * * *
(C) Replacement vessels. See paragraph (a)(5)(i)(C) of this
section.
* * * * *
3. In Sec. 648.13, paragraph (d) is added to read as follows:
Sec. 648.13 Transfers at sea.
* * * * *
(d) All persons are prohibited from transferring or attempting to
transfer at sea summer flounder from one vessel to another vessel.
4. In Sec. 648.14, paragraph (j)(9) is added to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(j) * * *
(9) Offload, remove, or otherwise transfer, or attempt to offload,
remove or otherwise transfer summer flounder from one vessel to
another, unless that vessel has not been issued a summer flounder
permit and fishes exclusively in state waters.
* * * * *
5. In Sec. 648.103, paragraph (c) is revised to read as follows:
Sec. 648.103 Minimum fish sizes.
* * * * *
(c) The minimum sizes in this section apply to whole fish or to any
part of a fish found in possession, e.g., fillets, except that party
and charter vessels possessing valid state permits authorizing
filleting at sea may possess fillets smaller that the size specified if
all state requirements are met.
6. In Sec. 648.104, paragraph (a)(1) is revised, and paragraph (f)
is added to read as follows:
[[Page 63876]]
Sec. 648.104 Gear restrictions.
(a) * * * (1) Otter trawlers whose owners are issued a summer
flounder permit and that land or possess 100 or more lb (45.4 or more
kg) of summer flounder from May 1 through October 31, or 200 lb or more
(90.8 kg or more) of summer flounder from November 1 through April 30,
per trip, must fish with nets that have a minimum mesh size of 5.5-inch
(14.0-cm) diamond or 6.0-inch (15.2-cm) square mesh applied throughout
the body, extension(s), and codend portion of the net.
* * * * *
(f) The minimum net mesh requirement may apply to any portion of
the net. The minimum mesh size and the portion of the net regulated by
the minimum mesh size may be adjusted pursuant to the procedures in
Sec. 648.100.
[FR Doc. 97-31708 Filed 11-28-97; 2:01 pm]
BILLING CODE 3510-22-F
