[Federal Register Volume 61, Number 165 (Friday, August 23, 1996)]
[Rules and Regulations]
[Pages 43420-43428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21515]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 648
[Docket No. 960520141-6221-02; I.D. 042696A]
RIN 0648-AH05
Fisheries of the Northeastern United States; Summer Flounder and
Scup Fisheries; Amendment 8
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
provisions of Amendment 8 to the Fishery Management Plan (FMP) for the
Summer Flounder and Scup Fisheries. Amendment 8 implements management
measures for the scup fishery in order to reduce fishing mortality and
to allow the stock to rebuild.
EFFECTIVE DATE: September 23, 1996.
ADDRESSES: Copies of Amendment 8, the final environmental impact
statement (FEIS), the regulatory impact review, and other supporting
documents are available upon request from David R. Keifer, Executive
Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal
Building, 300 South New Street, Dover, DE 19901-6790.
Comments regarding burden-hour estimates for collection-of-
information requirements contained in this final rule should be sent to
Dr. Andrew A. Rosenberg, Regional Director, 1 Blackburn Drive,
Gloucester, MA 01930 and the Office of Information and Regulatory
Affairs, Office of Management and Budget (OMB), Washington, DC, 20503
(Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy
Analyst, 508-281-9221.
SUPPLEMENTARY INFORMATION:
Background
This final rule implements approved measures contained in Amendment
8 to the FMP, which was approved by NMFS on behalf of the Secretary of
Commerce (Secretary) on July 29, 1996. Amendment 8 was prepared by the
Mid-Atlantic Fishery Management Council (Council) in consultation with
the Atlantic States Marine Fisheries Commission (ASMFC) and the New
England and South Atlantic Fishery Management Councils. Background
concerning the development of Amendment 8 was provided in the notice of
proposed rulemaking (61 FR 27851, June 3, 1996), and is not repeated
here. Amendment 8 revises the summer flounder (Paralichthys dentatus)
FMP to include management measures for the scup (Stenotomus chrysops)
fishery pursuant to the Magnuson Fishery Conservation and Management
Act, as amended (Magnuson Act). The management unit for the scup
fishery covered by this amendment is U.S. waters of the western
Atlantic Ocean from 35 deg.15.3' N. lat., the latitude of Cape Hatteras
Light, NC, northward to the United States-Canada border.
NMFS, on behalf of the Secretary, disapproved six measures proposed
in Amendment 8 upon preliminary evaluation of the amendment as
authorized by section 304(a)(1)(A)(ii) of the Magnuson Act. A revision
of three of those disapproved measures was submitted by the Council
(referred to as the revised portion of Amendment 8). A notice of
availability of the revised portion of Amendment 8 was published on
August 6, 1996 (61 FR 40180), and the proposed rule to implement the
revised portion of Amendment 8 will be published shortly. A decision on
approval or disapproval of the revised portion of Amendment 8 is
pending.
This rule implements measures in Amendment 8 that are expected to
reduce the fishing mortality rate for scup and allow the stock to
rebuild. The proposed rule for this action would have amended 50 CFR
part 625, at that time the regulations implementing the
[[Page 43421]]
Fishery Management Plan for the Summer Flounder Fishery. However, as
part of the President's Regulatory Reinvention Initiative, regulations
implementing all fishery management plans for the marine fisheries of
the Northeast region were consolidated into one CFR part, 50 CFR part
648, published July 3, 1996 (61 FR 34966). Therefore, this rule
implements final scup measures by amending 50 CFR part 648.
Incorporation of Emergency Measures Into the Final Rule
On March 27, 1996 (61 FR 13452), NMFS published an emergency rule
that imposed management measures for scup, effective through June 25,
1996, and, subsequently, extended through September 23, 1996 (61 FR
33382, June 27, 1996). The emergency rule established minimum fish
sizes for both the commercial and recreational fisheries, and a minimum
codend mesh size for commercial fishing vessels possessing more than
the threshold level of scup on board in the exclusive economic zone
(EEZ). This final rule implements permanently those measures that were
contained in both the emergency rule and the proposed rule for
Amendment 8.
Amendment 8 Measures
This final rule implements a moratorium on new entrants into the
commercial scup fishery, implements restrictions on the size of vessels
allowed as a replacement for a moratorium eligible vessel, requires
charter/party vessel, dealer, and operator permits, and establishes
reporting and recordkeeping requirements. This rule also implements the
following measures, which may be adjusted annually through the review
process specified in Amendment 8: Minimum fish sizes; a minimum mesh
size for otter trawl vessels possessing a specified threshold catch
level, which is initially specified at 4,000 lb or more (1,814 kg or
more) of scup; a maximum roller size; pot and trap gear requirements;
and a requirement that scup pots and traps have hinges and fasteners on
one panel or door made of degradable materials. Gear-specific seasonal
and area closures, modifications to the recreational season, possession
limit, and minimum size may also be implemented if the Council deems
them necessary in its annual review process. A coastwide harvest limit
will be specified in the second year of the FMP at a level that will
reduce the exploitation rate to the level specified in the rebuilding
schedule. This harvest limit will be allocated 78 percent to the
commercial fishery, via a coastwide commercial quota, and 22 percent to
the recreational fishery, via a recreational harvest limit. The
coastwide harvest limit will be set annually following the annual
review process set forth in this rule.
The Council and the ASMFC may, in the future, alter the system to
distribute and manage the annual commercial quota. Coastwide, regional,
and state-by-state quotas may be considered in combination with
different fractions of the fishing year.
Comments and Responses
Written comments from the Commonwealth of Massachusetts, Division
of Marine Fisheries (MADMF), U.S. Coast Guard (USCG), Council, and the
U.S. Small Business Administration, Office of Advocacy (SBA), and one
member of the public, were received during the public comment period.
Comment: MADMF commented that the amendment lacks restrictions such
as trip limits to slow the catch, and questioned whether the quota
strategy complies with national standard 4 of the Magnuson Act. MADMF
believes that this strategy could result in the entire EEZ's being
closed to the harvest of scup by April, precluding the Massachusetts
inshore scup fishery from being prosecuted. MADMF also commented that,
although the Council currently contemplates drafting a regulatory
amendment to revise the quota management system, it will not be
implemented in time for setting the 1997 quota.
Response: NMFS recognizes that no mechanism exists in the current
rule to establish trip limits to regulate further the scup catch in
1997 under a coastwide quota system. However, provisions do exist in
this rule that will control fishing (e.g., season and area closures).
Restrictions on gear, and season and area closures are measures that
the Council may adopt during the annual review process. The Council is
aware of the time frame necessary to implement any changes to the quota
system. Although time is short, a revision could still be in effect by
January 1, 1997, if the Council and the ASMFC are able to agree on an
acceptable alternative to the coastwide quota system.
Comment: MADMF recommended that NMFS postpone a decision on the
quota management approach until details are finalized.
Response: NMFS, on behalf of the Secretary, may only approve or
disapprove measures included in a proposed amendment. Disapproval must
be based upon inconsistency with the national standards or other
applicable law. The current quota strategy in Amendment 8 has been
determined to be consistent with the national standards of the Magnuson
Act, and other applicable law. Further, to postpone the implementation
of the quota, and hence to implement a FMP without any mechanism in
place by which to reduce overfishing or reach the exploitation rate
goals established in the FMP, would raise serious questions with this
FMP's compliance with national standard 1. Despite the concerns that
MADMF has raised, the scup stock is in serious need of management at
this time, and the coastwide quota is one of the primary mechanisms by
which that management will be achieved.
Comment: MADMF questioned how NMFS would enforce a quota since
state waters would be open to commercial fishing, and most scup
harvesters in the state do not have federally permitted vessels.
Response: The FMP is a joint plan authored by both the Council and
ASMFC. As a joint plan, it is expected that states will assist in the
implementation of the management strategy by enforcing closures of the
state waters scup fishery when the quota is harvested. If states do not
do that, the stock rebuilding strategy will be severely compromised.
While some harvesters fish exclusively in state waters, those who
intend to fish for scup in the EEZ north of 35 deg.15.3' N. lat. will,
as a result of the implementation of this rule, be required to obtain a
Federal moratorium permit in 1997. As a condition of that permit, they
must agree that the vessel and its fishing activity, catch and
pertinent gear (without regard to whether such fishing occurs in the
EEZ or landward of the EEZ and without regard to where such fish or
gear are possessed, taken, or landed) are subject to all the
requirements of that permit, unless specifically exempted. Further,
owners or operators of vessels issued a Federal moratorium scup permit
also must agree, as a condition of that permit, not to land scup after
the effective date of the notification published in the Federal
Register stating that the commercial quota had been harvested.
Comment: The USCG questioned NMFS' disapproval of the provision
requiring boxing at sea. The USCG noted that the exact weight is almost
impossible to determine at sea; boxing the catch, allows a relatively
accurate catch estimate to be made. The lack of a boxing requirement
also presents problems for fishing vessels with a refrigerated sea
water (RSW) hold, as the
[[Page 43422]]
USCG cannot verify the amount of fish on board a vessel using such a
system.
Response: The provision that would have required fishing vessels
using small mesh to box scup catches of less than 4,000 lb (1,814 kg)
in standard 100-lb (45.4-kg) totes to facilitate enforcement of the
mesh provisions was disapproved during a preliminary review of
Amendment 8. A vessel could have been required to have up to 40 of
these containers on board. Boxing and storing up to 40 totes could
prove infeasible for small vessels. As there is nothing in the
administrative record regarding the impact of this measure on the
industry, this measure was disapproved as being arbitrary and
capricious, and, therefore, in violation of the Administrative
Procedure Act (APA).
NMFS recognizes the USCG's desire to enhance the enforcement of the
minimum mesh requirement. The regulations that require a vessel
possessing less than the threshold level of scup on board to have the
scup stored separately and kept readily available for inspection, will
aid at-sea enforcement of the measure.
Comment: The USCG stated their preference for one mesh on board and
for mesh size restrictions to be effective throughout the net. The USCG
noted that requiring a minimum mesh size throughout the entire net
eliminates the practice of choking off the codend and fishing with the
smaller, legal mesh forward of the codend.
Response: NMFS recognizes that the inclusion of a multiple mesh on
board provision increases the difficulty of enforcing the mesh
restrictions. However, the minimum fish size will significantly
decrease the incentive to circumvent mesh restrictions. Further,
prohibiting vessels from carrying multiple mesh nets would preclude
them from fishing lawfully in the traditional mixed trawl fisheries in
this area. Multiple mesh nets on board is currently authorized in all
of the mixed trawl fisheries in the Southern New England/Mid-Atlantic
area for this reason.
To address the concerns raised by the USCG, the Council and
Commission have committed to reevaluating the codend mesh requirements.
This final rule includes a provision that would allow the Scup
Monitoring Committee to, each year, determine the allowable levels of
fishing and other restrictions necessary to achieve the exploitation
rates specified in the rebuilding schedule. This provision would allow
for changes in the minimum mesh requirements, including the requirement
that minimum mesh apply throughout the net.
Comment: The Council submitted a comment to clarify the language in
the proposed rule regarding ``equivalent'' rectangular escape vents in
scup pots. ``Equivalent'' the comment reads, ``refers to the size of
the scup that would be retained by a rectangular vent * * * An
equivalent rectangular vent would allow the same size scup (i.e., less
than 9.0'') to escape from the trap.''
Response: As no studies have been done with regard to the width of
a scup's body, and consequently no data exist to sufficiently calculate
appropriate equivalent rectangular vents (square vents require only the
height of the scup to calculate), NMFS interprets this to mean that
rectangular vents may not have sides less than the side specified by
the Council for a square vent, i.e., less than 2.25 inches (5.7 cm).
Comment: The SBA questioned the adequacy of the certification that
this rule will not have a significant impact on a substantial number of
small entities, especially in light of the fact that the Council's
Amendment 8 had concluded that, because of the cost of some
participants in this fishery of purchasing new roller gear or codends
to comply with the proposed regulations, a substantial number of small
entities would be impacted, some significantly.
Response: Contrary to the initial determination of the Council,
this rule will not have a significant economic impact on a substantial
number of small entities. As the Council indicated, compliance with
this rule may reduce gross revenues by more than 5 percent for some
small entity participants, or increase operating costs by more than 5
percent for some small entity participants who have to purchase new
gear (rollers, $1,200-1,500; codends, $700). However, based on the
analysis in the amendment, NMFS believes that a substantial number of
small entities will not be impacted. Amendment 8 presents data
demonstrating that the participants in this fishery rely on a mixed
species fishery involving squid, summer flounder, Atlantic mackerel,
silver hake and other species in addition to scup. When compared to the
other species, scup is a relatively low-value species for participants
in the mixed trawl fishery. The amendment presents data showing that 82
percent of the scup harvested in the period 1983-92 were landed in the
States of Rhode Island, New Jersey and New York, with scup landings in
those states representing only 2.0 percent, 2.3 percent, and 2.1
percent, respectively, of the total commercial value of all other
species landed. If the costs of new gear forced these harvesters to
forego all of their scup landings, NMFS believe that it is unlikely
that the impact on their gross revenues would exceed 5 percent for more
than a few individuals. In addition, because the minimum mesh
requirement is not triggered until a harvester reaches the threshold
catch level (4,000 lbs) (1,814 kg), even entities that are unable to
purchase a codend of the required mesh size would not be required to
forego all of their scup catch. NMFS also notes that at some time or
another, harvesters must replace codends and rollers as a routine cost
of doing business, so not all of the costs should be attributed to the
gear requirements.
Comment: One member of the public commented that in his opinion the
minimum mesh size of 4 inches (10.2 cm) for trawl gear is incompatible
with the commercial minimum fish size of 9 inches (22.9 cm). He states
that the minimum mesh size should be larger to prevent discards of
sublegal fish.
Response: The Council adopted the 4 inch (10.2 cm) codend mesh size
restriction based on industry comments stating that the mesh was the
appropriate size for a 9 inch (22.9 cm) scup. NMFS has approved the
mesh size, which has been in effect for the fishery under emergency
regulations since March 22, 1996. If information is brought forth to
indicate that it is warranted, the minimum mesh size, and other gear
restrictions, can be modified through the Council's annual review
process.
Changes From the Proposed Rule
This final rule implements the provisions of Amendment 8 by
amending 50 CFR part 648, Fisheries of the Northeastern United States.
The proposed rule would have amended 50 CFR part 625, the Summer
Flounder Fishery, which as part of the President's Regulatory
Reinvention Initiative was consolidated into part 648. As a result of
this regulatory consolidation, and to clarify the intent of this rule,
the final rule does not use the same regulatory language as the
proposed rule, but the measures are substantively the same. In some
cases, fisheries other than scup managed under part 648 may be
referenced in the regulatory language. The regulations governing these
other fisheries have not been amended here, and their mention in the
regulatory language is merely to reduce confusion for the reader. In
addition, regulatory text concerning the maximum size of otter trawl
roller gear, which was inadvertently omitted from the proposed rule, is
added (the proposed
[[Page 43423]]
rule contained a prohibition and a discussion on roller gear in the
preamble). The changes from the proposed rule are as follows:
Section 625.31 was consolidated with Sec. 648.1(a) to add ``scup''
to the Fishery Management Plan for the Summer Flounder Fishery as ``the
summer flounder and scup fishery (Summer Flounder and Scup FMP)''.
Section 625.32 was consolidated with Sec. 648.2, which already
included most of the required definitions. ``Scup Monitoring
Committee,'' and ``Total Length,'' were added, and the definition of
``Council'' was revised.
Section 625.33 is already included in Sec. 648.3.
Section 625.34 was consolidated with Sec. 648.4 to include vessel
permit requirements for scup.
Section 625.35 was consolidated with Sec. 648.5, to add operators
of scup vessels to the list of fisheries in paragraph (a) requiring
such permits.
Section 625.36 was consolidated with Sec. 648.6, to add dealers/
processors of scup to the list of fisheries in paragraph (a) requiring
such permits.
Section 625.37 was consolidated with Sec. 648.7, to include
recordkeeping and reporting requirements for fishing vessels and
dealer/processors in the scup fishery.
Section 625.38 is already included in Sec. 648.8.
Section 625.39 was consolidated with Sec. 648.14 to include
prohibitions for the scup fishery by revising paragraph (a) to add
paragraphs (80) through (88); (k) to add paragraphs (1) through (11);
and (l) to add paragraphs (1) through (4); and by adding paragraph
(u)(6).
Sections 625.40 and 625.41 are already included in Secs. 648.15 and
648.16, respectively.
Section 625.50 was added to subpart H as Sec. 648.120.
Section 625.51 was added to subpart H as Sec. 648.121. Non-
substantive changes were made to the text of this section to clarify
the process and to reflect more accurately the Council's intent.
Section 625.52 was added to subpart H as Sec. 648.122. Non-
substantive changes were made to the text of this section to clarify
the process and to reflect more accurately the Council's intent.
Section 625.53 was added to subpart H as Sec. 648.123. Non-
substantive changes were made to the text of this section to clarify
the process and to reflect more accurately the Council's intent.
Section 625.54 was added to subpart H as Sec. 648.124. Non-
substantive changes were made to the text of this section to clarify
the process and to more accurately reflect the Council's intent.
Section 625.55 was added to subpart H as Sec. 648.125. Non-
substantive changes were made to the text of this section to clarify
the process and to reflect more accurately the Council's intent.
Section 625.56 was consolidated with Sec. 648.11, revising
paragraphs (a) and (e) to include sea sampler/observer coverage in the
scup fishery.
Section 625.57 was consolidated with Sec. 648.12 and revised to
include experimental exemptions in the scup fishery under subpart H.
Section 625.58 was added in subpart H as Sec. 648.126.
Under NOAA Administrative Order 205-11, 7.01, dated December 17,
1990, the Under Secretary for Oceans and Atmosphere has delegated
authority to sign material for publication in the Federal Register to
the Assistant Administrator for Fisheries, NOAA.
Classification
The Director, Northeast Region, NMFS, determined that Amendment 8
is necessary for the conservation and management of the scup fishery
and that it is consistent with the Magnuson Act and other applicable
law.
The Council prepared an FEIS for Amendment 8; a notice of
availability was published on June 7, 1996 (61 FR 29094). The Assistant
Administrator for Fisheries, NOAA (AA) determined, upon review of the
FEIS and public comments, that the rule is environmentally preferable
to the status quo. This rule would reduce exploitation, increase long-
term yields, and thus reduce the risk of stock collapse for the scup
fishery.
This rule has been determined to be not significant for purposes of
E.O. 12866.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number.
This rule contains new collection-of-information requirements
subject to the PRA. These collection-of-information requirements have
been approved by OMB, and the OMB control numbers and public reporting
burden are listed as follows:
1. Dealer employment data (6 minutes per response), under OMB #
0648-0018.
2. Operator permits, (1 hour per response), vessel moratorium
permits (30 minutes per response), moratorium permit appeals (30
minutes per response), party and charter boat permits (30 minutes per
response), dealer/processor permits (5 minutes per response), under OMB
# 0648-0202.
3. Vessel/party/charter boat logbooks (5 minutes per response)
under OMB # 0648-0212.
4. Dealer reporting responses (2 minutes per response) under OMB #
0648-0229.
The estimated response times include the time needed for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection-of-information. Send comments regarding burden estimates, or
any other aspect of these data collections, including suggestions for
reducing the burden, to NMFS and OMB (see ADDRESSES).
A reinitiation of a section 7 consultation under the Endangered
Species Act was completed on February 29, 1996, on the summer flounder,
scup, and black sea bass fisheries. The opinion concludes that the
effects of the three fisheries, along with associated NMFS management
actions, may adversely affect listed or proposed species, but are not
likely to jeopardize their continued existence and will not result in
the destruction or adverse modification of designated critical habitat.
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 rule would not have a
significant economic impact on a substantial number of small entities.
As a result, a Regulatory Flexibility Analysis was not prepared.
Compliance with Amendment 8, as indicated by the Council, may reduce
gross revenues by more than 5 percent, or increase operating costs by
more than 5 percent for some small entities who have to purchase new
gear (rollers or codends). However, based on an analysis of Amendment
8, it is unlikely that these purchases would be required by more than
20 percent of the small entities, specifically, otter trawl vessels,
engaged in this fishery. Additionally, harvesters must replace codends
and rollers as a routine cost of doing business, so not all costs can
be attributed to the gear requirements. Thus, NMFS determined, despite
the initial determination of the Council, that this rule would not have
a significant impact on a substantial number of small entities.
List of Subjects
50 CFR Part 902
Reporting and recordkeeping requirements.
[[Page 43424]]
50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: August 19, 1996.
C. Karnella,
Acting Program Management Officer, National Marine Fisheries Service,
National Oceanic and Atmospheric Administration.
For the reasons set out in the preamble, 15 CFR chapter IX and 50
CFR chapter VI are amended as follows:
15 CFR CHAPTER IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, in paragraph (b), the table, the following
entries are added to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
CFR part section where the
information collection requirement is Current OMB control number (all
located numbers begin with 0648-)
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
648.4................................ -0202
648.5................................ -0202
648.6................................ -0202
648.7................................ -0018, -0202,
-0212, and -0229
* * * * *
------------------------------------------------------------------------
50 CFR CHAPTER VI
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
3. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
4. In Sec. 648.1, paragraph (a) is revised to read as follows:
Sec. 648.1 Purpose and scope.
(a) This part implements the fishery management plans (FMP) for the
Atlantic mackerel, squid, and butterfish fisheries (Atlantic Mackerel,
Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon FMP); the
Atlantic sea scallop fishery (Atlantic Sea Scallop FMP (Scallop FMP));
the Atlantic surf clam and ocean quahog fisheries (Atlantic Surf Clam
and Ocean Quahog FMP); the Northeast multispecies fishery (NE
Multispecies FMP); and the summer flounder and scup fisheries (Summer
Flounder and Scup FMP). These FMPs and the regulations in this part
govern the conservation and management of the above named fisheries.
* * * * *
5. In Sec. 648.2, the definitions for ``Scup Monitoring Committee''
and ``Total Length'' are added, in alphabetical order, and the
definition for ``Council'' is revised to read as follows:
Sec. 648.2 Definitions.
* * * * *
Council means the New England Fishery Management Council (NEFMC)
for the Atlantic sea scallop and the Northeast multispecies fisheries,
or the Mid-Atlantic Fishery Management Council (MAFMC) for the Atlantic
mackerel, squid, and butterfish; the Atlantic surf clam and ocean
quahog; and the summer flounder and scup fisheries.
* * * * *
Scup Monitoring Committee means a committee made up of staff
representative of the MAFMC, NEFMC, South Atlantic Fishery Management
Council, the NMFS Northeast Regional Office, the NEFSC, and the
Commission. The MAFMC Executive Director or a designee chairs the
committee.
* * * * *
Total Length (TL) means the straight-line distance from the tip of
the snout to the end of the tail (caudal fin) while the fish is lying
on its side.
* * * * *
6. In Sec. 648.4, paragraph (a)(6) is added and paragraph (b) is
revised to read as follows:
Sec. 648.4 Vessel permits.
(a) * * *
(6) Scup vessels. Beginning on January 1, 1997, and subject to the
eligibility requirements specified in paragraphs (a)(6)(i) and
(a)(6)(ii) of this section, the owner of a vessel of the United States,
including a party or charter vessel, must obtain a permit issued under
this part to fish for or retain scup for sale, barter or trade, in or
from the EEZ north of 35 deg.15.3' N. lat. Any vessel, other than a
party or charter boat, that observes the possession limit restrictions
established pursuant to, and the prohibition on sale specified in,
Sec. 648.125 is exempt from the permit requirement.
(i) Moratorium permit--(A) Eligibility. A vessel is eligible for a
moratorium permit to fish for and retain scup for sale if it meets any
of the following criteria:
(1) The vessel landed and sold scup between January 26, 1988, and
January 26, 1993; or
(2) The vessel is replacing such a vessel and meets the
requirements of paragraph (a)(3)(i)(C) of this section.
(B) Application/renewal restrictions. (1) No one may apply for an
initial scup moratorium permit after August 25, 1997.
(2) No one may apply for a scup moratorium permit after the owner
retires the vessel from the fishery.
(C) Replacement vessels. See paragraph (a)(3)(i)(C) of this
section.
(D) Appeal of denial of permit. (1) Any applicant denied a scup
moratorium permit may appeal to the Regional Director within 30 days of
the notice of denial. Any such appeal shall be in writing. The only
ground for appeal is that the Regional Director erred in concluding
that the vessel did not meet the criteria in paragraph (a)(6)(i)(A)(1)
of this section. The appeal shall set forth the basis for the
applicant's belief that the Regional Director's decision was made in
error.
(2) The appeal may be presented, at the option of the applicant, at
a hearing before an officer appointed by the Regional Director.
(3) The hearing officer shall make a recommendation to the Regional
Director.
(4) The decision on the appeal by the Regional Director is the
final decision of the Department of Commerce.
(ii) Party and charter boat permit. Any party or charter boat is
eligible for a permit to fish for scup, other than a scup moratorium
permit, if it is carrying passengers for hire. Such vessel must observe
the possession limits established pursuant to, and the prohibitions on
sale specified in, Sec. 648.125.
(b) Permit conditions. Vessel owners who apply for a fishing vessel
permit under this section must agree as a condition of the permit that
the vessel and the vessel's fishing activity, catch, and pertinent gear
(without regard to whether such fishing occurs in the EEZ or landward
of the EEZ, and without regard to where such fish or gear are
possessed, taken or landed), are subject to all requirements of this
part, unless exempted from such requirements under this part. All such
fishing activities, catch, and gear will remain subject to all
applicable state requirements. Except as otherwise provided in this
part, if a requirement of this part and a management measure required
by a state or local law differ, any vessel owner permitted to fish in
the EEZ for any species managed under this part must comply with the
more
[[Page 43425]]
restrictive requirement. Owners and operators of vessels fishing under
the terms of a summer flounder moratorium permit must also agree not to
land summer flounder in any state after the Regional Director has
published a notification in the Federal Register stating that the
commercial quota for that state has been harvested, and that no
commercial quota is available. A state not receiving an allocation of
summer flounder is deemed to have no commercial quota available. Owners
and operators of vessels fishing under the terms of a scup moratorium
permit must also agree not to land scup after the Regional Director has
published a notification in the Federal Register stating that the
commercial quota has been harvested. Owners or operators fishing for
surf clams and ocean quahogs within waters under the jurisdiction of
any state that requires cage tags are not subject to any conflicting
Federal minimum size or tagging requirements. If a surf clam and ocean
quahog requirement of this part differs from a surf clam and ocean
quahog management measure required by a state that does not require
cage tagging, any vessel owners or operator permitted to fish in the
EEZ for surf clams and ocean quahogs must comply with the more
restrictive requirement while fishing in state waters. However,
surrender of a surf clam and ocean quahog vessel permit by the owner by
certified mail addressed to the Regional Director allows an individual
to comply with the less restrictive state minimum size requirement, so
long as fishing is conducted exclusively within state waters.
* * * * *
7. In Sec. 648.5, the first sentence of paragraph (a) is revised to
read as follows:
Sec. 648.5 Operator permits.
(a) General. Any operator of a vessel fishing for or possessing sea
scallops in excess of 40 lb (18.1 kg), NE multispecies, and, as of
January 1, 1997, mackerel, squid or butterfish, or scup, harvested in
or from the EEZ, or issued a permit for these species under this part,
must have and carry on board a valid operator's permit issued under
this section. * * *
* * * * *
8. In Sec. 648.6, paragraph (a) is revised to read as follows:
Sec. 648.6 Dealer/processor permits.
(a) General. All NE multispecies, sea scallop, summer flounder,
surf clam and ocean quahog dealers, and surf clam and ocean quahog
processors must have been issued and have in their possession a permit
for such species issued under this section. As of January 1, 1997, all
mackerel, squid, or butterfish dealers and all scup dealers must have
been issued and have in their possession a valid dealers permit for
those species.
* * * * *
9. In Sec. 648.7, the first sentence in each of paragraphs
(a)(1)(i), (a)(2)(i), (b)(1)(i), and (b)(1)(iii), and paragraph (f)(3)
are revised to read as follows:
Sec. 648.7 Recordkeeping and reporting requirements.
(a) * * *
(1) * * *
(i) Summer flounder, scallop, NE multispecies, and, as of January
1, 1997, mackerel, squid or butterfish, and scup dealers must provide:
Name and mailing address of dealer, dealer number, name and permit
number of the vessels from which fish are landed or received, dates of
purchases, pounds by species, price by species, and port landed. * * *
* * * * *
(2) * * *
(i) Summer flounder, scallop, NE multispecies, and, as of January
1, 1997, mackerel, squid, or butterfish, and scup dealers must complete
the ``Employment Data'' section of the Annual Processed Products
Reports; completion of the other sections of that form is voluntary. *
* *
* * * * *
(b) * * *
(1) * * *
(i) Owners of vessels issued a moratorium permit for summer
flounder, mackerel, squid, or butterfish, or scup, or a permit for sea
scallop, or multispecies. The owner or operator of any vessel issued a
moratorium vessel permit for summer flounder, or, as of January 1,
1997, for mackerel, squid, or butterfish, or scup, or a permit for sea
scallops, or NE multispecies, must maintain on board the vessel, and
submit, an accurate daily fishing log report for all fishing trips,
regardless of species fished for or taken, on forms supplied by or
approved by the Regional Director. * * *
* * * * *
(iii) Owners of party and charter boats. The owner of any party or
charter boat issued a summer flounder or scup permit other than a
moratorium permit and carrying passengers for hire shall maintain on
board the vessel, and submit, an accurate daily fishing log report for
each charter or party fishing trip that lands summer flounder or scup,
unless such a vessel is also issued a moratorium permit for summer
flounder, a permit for sea scallops or multispecies, or, as of January
1, 1997, a moratorium permit for mackerel, squid, or butterfish, or
scup, in which case a fishing log report is required for each trip
regardless of species retained. * * *
* * * * *
(f) * * *
(3) At-sea purchasers, receivers, or processors. All persons
purchasing, receiving, or processing any summer flounder, or, as of
January 1, 1997, mackerel, squid, or butterfish, or scup, at sea for
landing at any port of the United States must submit information
identical to that required by paragraph (a)(1) or (a)(2) of this
section, as applicable, and provide those reports to the Regional
Director or a designee on the same frequency basis.
10. In Sec. 648.11, the first sentence of paragraph (a), paragraph
(e) introductory text, paragraphs (e)(1) and (e)(2) are revised to read
as follows:
Sec. 648.11 At-sea sea sampler/observer coverage.
(a) The Regional Director may request any vessel holding a permit
for sea scallop or NE multispecies; or a moratorium permit for summer
flounder; or, as of January 1, 1997, a mackerel, squid, or butterfish,
or scup permit to carry a NMFS-approved sea sampler/observer. * * *
* * * * *
(e) The owner or operator of a vessel issued a summer flounder or
scup moratorium permit, if requested by the sea sampler/observer also
must:
(1) Notify the sea sampler/observer of any sea turtles, marine
mammals, summer flounder or scup, or other specimens taken by the
vessel.
(2) Provide the sea sampler/observer with sea turtles, marine
mammals, summer flounder or scup, or other specimens taken by the
vessel.
* * * * *
11. In Sec. 648.12 the introductory text is revised to read as
follows:
Sec. 648.12 Experimental fishing.
The Regional Director may exempt any person or vessel from the
requirements of subparts B (Atlantic mackerel, squid, and butterfish),
D (sea scallop), E (surf clam and ocean quahog), F (NE multispecies), G
(summer flounder), or H (scup), of this part for the conduct of
experimental fishing beneficial to the management of the resources or
fishery managed under that subpart. The Regional Director shall consult
with the Executive Director of the MAFMC regarding such exemptions for
the mackerel, squid, or butterfish, summer flounder and scup fisheries.
* * * * *
[[Page 43426]]
12. In Sec. 648.14, paragraph (t) is redesignated as paragraph (u)
and a new paragraph (t) is added and reserved, paragraphs (a)(80)
through (a)(88), and paragraph (u)(6) are added, and paragraphs (k) and
(l) are revised to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(80) Possess scup in or harvested from the EEZ north of
35 deg.15.3' N. lat. in an area closed, or before or after a season
established pursuant to Sec. 648.122.
(81) To purchase or otherwise receive for a commercial purpose scup
harvested from the EEZ north of 35 deg.15.3' N. lat., or from a vessel
issued a scup moratorium permit after the effective date of the
notification published in the Federal Register stating that the
commercial quota has been harvested.
(82) Land scup harvested in or from the EEZ north of 35 deg.15.3'
N. lat. after the effective date of the notification published in the
Federal Register stating that the commercial quota has been harvested.
(83) Possess scup harvested in or from the EEZ north of
35 deg.15.3' N. lat. that do not meet the minimum fish size specified
in Sec. 648.124.
(84) Fish for, catch, or retain scup in excess of 4,000 lb (1,814
kg) in or from the EEZ north of 35 deg.15.3' N. lat. unless the vessel
meets the gear restrictions in Sec. 648.123.
(85) Fish for, catch, or retain scup in or from the EEZ north of
35 deg.15.3' N. lat. for sale, barter, or trade, after January 1, 1997,
unless the vessel has been issued a valid moratorium permit pursuant to
Sec. 648.4(a)(6).
(86) Sell or transfer scup harvested in or from the EEZ north of
35 deg.15.3' N. lat. after January 1, 1998, unless the vessel has been
issued a valid moratorium permit pursuant to Sec. 648.4(a)(6).
(87) Fish for, catch, or retain scup in or from the EEZ north of
35 deg.15.3' N. lat. on board a party or charter boat after January 1,
1997, unless the vessel has been issued a valid party or charter boat
permit pursuant to Sec. 648.4(a)(6)(ii).
(88) Fish with or possess scup pots or traps in the EEZ north of
35 deg.15.3' N. lat. that have a rectangular escape vent, any side of
which is less than 2.25 inches (5.7 cm) in length.
* * * * *
(k) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraph (a) of this section, it
is unlawful for any person owning or operating a vessel issued a scup
permit (including a moratorium permit) to do any of the following:
(1) Possess scup in excess of the threshold amount specified in
Sec. 648.123, unless the vessel meets the minimum mesh-size
restrictions specified in Sec. 648.123.
(2) Fail to keep scup separate from other species if fishing with
nets having mesh that does not meet the minimum mesh-size restrictions
specified in Sec. 648.123(a).
(3) Land scup for sale after the effective date of the notification
published in the Federal Register stating that the commercial quota has
been harvested.
(4) Possess nets or netting that do not meet the minimum mesh
restrictions or that are modified, obstructed or constricted, if
subject to the minimum mesh requirements specified in Sec. 648.123(a),
unless the nets or netting are stowed in accordance with
Sec. 648.23(b).
(5) Fish with nets or netting that do not meet the minimum mesh
restriction or that are modified, obstructed or constricted while in
possession of scup in excess of the threshold amount specified in
Sec. 648.123.
(6) As of January 1, 1997, sell or transfer to another person for a
commercial purpose, other than transport on land, any scup, unless the
transferee has a dealer permit issued under Sec. 648.6.
(7) Carry passengers for hire, or carry more than three crew
members for a charter boat or five crew members for a party boat, while
fishing for scup under the terms of a moratorium permit issued pursuant
to Sec. 648.4(a)(6).
(8) Use a scup pot or trap that does not have the hinges and
fasteners made of degradable materials as specified in Sec. 648.123.
(9) Use a scup trap or pot that does not have a minimum escape vent
of the size specified in Sec. 648.123.
(10) Use roller rig trawl gear equipped with rollers greater than
the size specified in Sec. 648.123.
(11) Possess scup in, or harvested from, the EEZ in an area closed,
or before or after a season established pursuant to Sec. 648.122.
(l) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraph (a) of this section, it
is unlawful for the owner or operator of a party or charter boat issued
a scup permit (including a moratorium permit), when the boat is
carrying passengers for hire or carrying more than three crew members
if a charter boat or more than five members if a party boat, to:
(1) Possess scup in excess of the possession limit established
pursuant to Sec. 648.125.
(2) Fish for scup other than during a season established pursuant
to Sec. 648.122.
(3) Sell scup or transfer scup to another person for a commercial
purpose.
(4) Possess scup that do not meet the minimum fish size specified
in Sec. 648.124(b).
* * * * *
(u) * * *
(6) Scup. All scup possessed on board a party or charter boat
issued a permit under Sec. 648.4 are deemed to have been harvested from
the EEZ.
13. Subpart H is revised to read as follows:
Subpart H--Management Measures for the Scup Fishery
Sec.
648.120 Catch quotas and other restrictions.
648.121 Closure.
648.122 Season and area restrictions.
648.123 Gear restrictions.
648.124 Minimum fish sizes.
648.125 Possession limit.
648.126 Protection of threatened and endangered sea turtles.
Subpart H--Management Measures for the Scup Fishery
Sec. 648.120 Catch quotas and other restrictions.
(a) Annual review. The Scup Monitoring Committee shall review the
following data, subject to availability, on or before August 15 of each
year. This review will be conducted to determine the allowable levels
of fishing and other restrictions necessary to achieve an exploitation
rate of 47 percent in 1997, 1998, and 1999, 33 percent in 2000 and
2001, and 19 percent in 2002 and thereafter: Commercial and
recreational catch data; current estimates of fishing mortality; stock
status; recent estimates of recruitment; virtual population analysis
results; levels of noncompliance by fishermen or individual states;
impact of size/mesh regulations; impact of gear on the mortality of
scup; and any other relevant information.
(b) Recommended measures. Based on this review, the Scup Monitoring
Committee shall recommend the following measures to the Demersal
Species Committee of the MAFMC and the Commission to assure that the
exploitation rate specified in paragraph (a) of this section will not
be exceeded:
(1) The coastwide commercial quota will be set from a range of 0 to
the maximum allowed to achieve the specified exploitation rate.
(2) Commercial minimum fish size.
(3) Minimum mesh size.
[[Page 43427]]
(4) Recreational possession limit set from a range of 0 to 50 scup
to achieve the specified exploitation rate.
(5) Recreational minimum fish size set from a range of 7 inches
(17.8 cm) TL to 10 inches (25.4 cm) TL.
(6) Recreational season.
(7) Restrictions on gear.
(8) Season and area closures in the commercial fishery.
(c) Annual fishing measures. The Demersal Species Committee shall
review the recommendations of the Scup Monitoring Committee. Based on
these recommendations and any public comment, the Demersal Species
Committee shall recommend to the MAFMC measures necessary to assure
that the specified exploitation rate will not be exceeded. The MAFMC
shall review these recommendations, and based on these recommendations
and any public comment, recommend to the Regional Director measures
necessary to assure that the specified exploitation rate will not be
exceeded. The MAFMC's recommendation must include supporting
documentation, as appropriate, concerning the environmental and
economic impacts of the recommendations. The Regional Director shall
review these recommendations and any recommendations of the Commission.
After such review, the Regional Director will publish a proposed rule
in the Federal Register by October 15 to implement a coastwide
commercial quota and recreational harvest limit and additional
management measures for the commercial fishery, and will publish a
proposed rule in the Federal Register by February 15 to implement
additional management measures for the recreational fishery, if he or
she determines that such measures are necessary to assure that the
specified exploitation rate will not be exceeded. After considering
public comment, the Regional Director will publish a final rule in the
Federal Register to implement the annual measures.
(d) Additional quota measures. The commercial quota will be
implemented as a coastwide quota, applicable to that area of the EEZ
from 35 deg.15.3' N. lat. to the United States/Canada border. The MAFMC
and Commission may revise the coastwide quota system to distribute and
manage the annual commercial quota allocation in accordance with the
procedures set forth in this section. Vessel trip limits, as well as
coastwide, regional and state-by-state quotas may be considered in
combination with different fractions of the fishing year. Any
modification to the coastwide quota system shall be published as a
proposed rule in the Federal Register with a 45-day public comment
period. After considering public comment on the proposed rule, a final
rule shall be published in the Federal Register to implement the
appropriate modification.
Sec. 648.121 Closure.
The Regional Director will monitor the harvest of commercial quota
based on dealer reports, state data, and other available information
and shall determine the date when the commercial quota will be
harvested. The Regional Director shall close the EEZ to fishing for
scup by commercial vessels for the remainder of the calendar year by
publishing notification in the Federal Register advising that,
effective upon a specific date, the commercial quota has been
harvested, and notifying vessel and dealer permit holders that no
commercial quota is available for landing scup.
Sec. 648.122 Season and area restrictions.
If the MAFMC determines through its annual review process that
seasonal restrictions or area closures are necessary for the commercial
or recreational sectors to assure that the exploitation rate is not
exceeded, or to attain other FMP objectives, such measures will be
enacted through the procedure specified in Sec. 648.120.
Sec. 648.123 Gear restrictions.
(a) Trawl vessel gear restrictions--(1) Minimum mesh size. The
owners or operators of otter trawlers issued a scup moratorium permit,
and that possess 4,000 lb or more (1,814 kg or more) of scup, must fish
with nets that have a minimum mesh size of 4 inches (10.2 cm) diamond
mesh applied throughout the codend for at least 75 continuous meshes
forward of the terminus of the net, or, for codends with less than 75
meshes, the minimum-mesh-size codend must be a minimum of one-third of
the net, measured from the terminus of the codend to the head rope,
excluding any turtle excluder device extension. Scup on board these
vessels shall be stored separately and kept readily available for
inspection.
(2) Mesh-size measurement. Mesh sizes will be measured according to
the procedure specified in Sec. 648.104(a)(2).
(3) Net modification. The owner or operator of a fishing vessel
subject to the minimum mesh requirement in paragraph (a)(1) of this
section shall not use any device, gear, or material, including, but not
limited to, nets, net strengtheners, ropes, lines, or chafing gear, on
the top of the regulated portion of a trawl net. However, one splitting
strap and one bull rope (if present), consisting of line or rope no
more than 3 inches (7.2 cm) in diameter, may be used if such splitting
strap and/or bull rope does not constrict in any manner the top of the
regulated portion of the net, and one rope no greater that 0.75 inches
(1.9 cm) in diameter extending the length of the net from the belly to
the terminus of the codend along the top, bottom, and each side of the
net. ``Top of the regulated portion of the net'' means the 50 percent
of the entire regulated portion of the net that (in a hypothetical
situation) will not be in contact with the ocean bottom during a tow if
the regulated portion of the net were laid flat on the ocean floor. For
the purpose of this paragraph (a)(3), head ropes are not considered
part of the top of the regulated portion of a trawl net.
(4) Mesh obstruction or constriction. (i) The owner or operator of
a fishing vessel subject to the minimum mesh restriction in paragraph
(a)(1) of this section shall not use any mesh construction, mesh
configuration, or other means on or in the top of the regulated portion
of the net, as defined in paragraph (a)(3) of this section, if it
obstructs the meshes of the net in any manner.
(ii) The owner or operator of a fishing vessel subject to the
minimum mesh requirement in paragraph (a)(1) of this section may not
use a net capable of catching scup if the bars entering or exiting the
knots twist around each other.
(5) Stowage of nets. The owner or operator of an otter trawl vessel
retaining 4,000 lb or more (1,814 kg or more) of scup and subject to
the minimum mesh requirement in paragraph (a)(1) of this section, may
not have available for immediate use any net, or any piece of net, not
meeting the minimum mesh size requirement, or mesh that is rigged in a
manner that is inconsistent with the minimum mesh size. A net that
conforms to one of the methods specified in Sec. 648.23(b) and that can
be shown not to have been in recent use is considered to be not
``available for immediate use.''
(6) Roller gear. The owner or operator of an otter trawl vessel
issued a moratorium permit pursuant to Sec. 648.4(a)(6) shall not use
roller rig trawl gear equipped with rollers greater than 18 inches
(45.7 cm) in diameter.
(7) Procedures for changes. The minimum net mesh and the threshold
catch level at which it is required set forth in paragraph (a)(1) of
this section, and the maximum roller diameter set forth in paragraph
(a)(6) of this section, may be changed following the procedures in
Sec. 648.120.
[[Page 43428]]
(b) Pot and trap gear restrictions. Owners or operators of vessels
subject to this part must fish with scup pots or traps that comply with
the following:
(1) Degradable hinges. A scup pot or trap must have degradable
hinges and fasteners made of one of the following degradable materials:
(i) Untreated hemp, jute, or cotton string of \3/16\ inches (4.8
mm) diameter or smaller;
(ii) Magnesium alloy, timed float releases (pop-up devices) or
similar magnesium alloy fasteners; or
(iii) Ungalvanized or uncoated iron wire of 0.094 inches (2.4 mm)
diameter or smaller.
(2) Escape vents. (i) All scup pots or traps that have a circular
escape vent with a minimum of 3.1 inches (7.9 cm) in diameter, or a
square escape vent with a minimum of 2.25 inches (5.7 cm) for each
side, or an equivalent rectangular escape vent.
(ii) The minimum escape vent size set forth in paragraph (b)(2)(i)
of this section may be revised following the procedures in
Sec. 648.120.
Sec. 648.124 Minimum fish sizes.
(a) The minimum size for scup is 9 inches (22.9 cm) TL for all
vessels issued a moratorium permit under Sec. 648.4(a)(6). If such a
vessel is also issued a charter and party boat permit and is carrying
passengers for hire, or carrying more than three crew members if a
charter boat, or more than five crew members if a party boat, then the
minimum size specified in paragraph (b) of this section applies.
(b) The minimum size for scup is 7 inches (17.8 cm) TL for all
vessels that do not have a moratorium permit, or for party and charter
vessels that are issued a moratorium permit but are 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.
(c) The minimum size applies to whole fish or any part of a fish
found in possession, e.g., fillets. These minimum sizes may be adjusted
pursuant to the procedures in Sec. 648.120.
Sec. 648.125 Possession limit.
(a) Pursuant to the procedures in Sec. 648.120, the Regional
Director may limit the number of scup that may be possessed in or
harvested from the EEZ north of 35 deg.15.3' N. lat. by persons aboard
vessels that have not been issued a valid moratorium permit.
(b) If whole scup are processed into fillets, an authorized officer
will convert the number of fillets to whole scup at the place of
landing by dividing fillet number by 2. If scup are filleted into a
single (butterfly) fillet, such fillet shall be deemed to be from one
whole scup.
(c) Scup harvested by vessels subject to the possession limit with
more than one person aboard may be pooled in one or more containers.
Compliance with the daily possession limit will be determined by
dividing the number of scup on board by the number of persons aboard
other than the captain and crew. If there is a violation of the
possession limit on board a vessel carrying more than one person, the
violation shall be deemed to have been committed by the owner and
operator.
(d) Scup and scup parts harvested by a vessel with a moratorium or
charter or party boat scup permit, or in or from the EEZ north of
35 deg.15.3' N. lat., may not be landed with the skin removed.
Sec. 648.126 Protection of threatened and endangered sea turtles.
This section supplements existing regulations issued to regulate
incidental take of sea turtles under authority of the Endangered
Species Act under 50 CFR parts 217 and 227. In addition to the measures
required under those parts, NMFS will investigate the extent of take in
flynet gear and if deemed appropriate, may develop and certify a Turtle
Excluder Device for that gear.
[FR Doc. 96-21515 Filed 8-22-96; 8:45 am]
BILLING CODE 3510-22-P
