[Federal Register Volume 62, Number 182 (Friday, September 19, 1997)]
[Proposed Rules]
[Pages 49195-49198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24922]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 970908229-7229-01; 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: Proposed rule; request for comments.
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SUMMARY: NMFS issues this proposed rule to implement the provisions of
proposed Amendment 10 to the Fishery Management Plan for the Summer
Flounder, Scup, and Black Sea Bass Fisheries (FMP). Amendment 10 would
revise some of the management measures in the summer flounder fisheries
and require a number of corresponding revisions to the regulations
implementing the FMP and its amendments.
DATES: Public comments must be received on or before November 3, 1997.
ADDRESSES: Comments on this proposed rule should be sent to Andrew A.
Rosenberg, Ph.D., Regional Administrator, Northeast Regional Office,
NMFS, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of
the envelope, ``Comments on Amendment 10 Proposed Rule.''
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: Regina L. Spallone, Fishery Policy
Analyst, 508-281-9221.
SUPPLEMENTARY INFORMATION:
Background
Proposed 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), soliciting public comments on Amendment 10 through
November 3, 1997. All comments received by the end of the comment
period on the proposed amendment, whether specifically directed to
Amendment 10 or the proposed rule, will be considered in the approval/
disapproval decision on Amendment 10; comments received after that date
will not be considered in the approval/disapproval decision of
Amendment 10. Public comments must be received (not postmarked or
otherwise transmitted) by the close of business on November 3, 1997, to
be considered in the approval/disapproval decision.
Amendment 10 revises the management measures in the summer flounder
(Paralichthys dentatus) fishery, pursuant to the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act), as
amended. The management unit continues to be summer flounder in U.S.
waters in the western Atlantic Ocean from the southern border of North
Carolina, northward to the U.S./Canada border.
The regulations implementing the FMP and its amendments impose a
broad spectrum of measures on the fishery to stop overfishing and
increase spawning stock biomass. These measures include minimum mesh
size limits in the otter trawl fishery, a moratorium on the entry of
new vessels into the commercial fishery, and a total harvest limit
allocated between the commercial and recreational sectors of the
fishery. The harvest limit for the commercial sector is allocated as a
quota, apportioned to the states based on historical landings data. All
commercial landings in a state count against that state's quota.
Proposed Amendment 10 would require a number of changes to the
summer flounder regulations. Amendment 10 would modify the commercial
minimum mesh size limit, continue the moratorium on entry of additional
commercial vessels, remove the landing requirements applicable to
permit retention, modify the vessel replacement criteria, would allow
any state to be granted de minimus status if commercial summer flounder
landings during the preceding calendar year were less than 0.1 percent
of the total coastwide quota, 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 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 compliance criteria, these management measures are not part
of the Federal regulatory process and are, therefore, not included in
this proposed rule. Details of these measures are described in
Amendment 10, which is available from the Council (see ADDRESSES).
In addition, the Council reevaluated 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 methods, 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 the
current system allows the states the most flexibility in managing their
quotas, by implementing state subquotas and trip limits.
After a preliminary 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 appears
arbitrary and capricious. This measure would require an annual
examination of state landings to determine if landings in that state
during the preceding year for which data are available were less than
0.1 percent of the overall annual quota. If a state met this criterion,
it would be granted de minimus status. The de minimus measure would
impose
[[Page 49196]]
an administrative burden or cost to make this annual determination,
without conferring any demonstrable administrative or conservation
benefit. This would contravene the requirements of national standard 7.
Also, it is not clear if a de minimus state must close its state
fishery when its quota is harvested. 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 renders 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) appears arbitrary and capricious. 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.
As a result of this preliminary review, NMFS proposes to disapprove
the de minimus measure. Therefore, this measure is not included in the
regulations proposed for public comment.
Issue of Concern
NMFS notes that the Council recommended that May 13, 1997, be the
baseline date for measuring vessel upgrades at the time of replacement.
The baseline date was not specified when the Council held public
hearings on Amendment 10, although it is a necessary adjunct required
for the administration of the replacement upgrade provision. In order
that all potentially affected fishery participants have equal notice of
the baseline date, NMFS is proposing September 19, 1997, instead of May
13, 1997, as proposed by the Council.
Proposed Measures
Minimum Mesh Requirement
The minimum mesh size for otter trawl vessels possessing 100 lb
(45.4 kg) or more of summer flounder between May 1 and October 31, or
200 lb (90.8 kg) or more of summer flounder between November 1 and
April 30, would be 5.5-inch (14.0-cm) diamond, or 6.0-inch (15.2-cm)
square, inside measure, applied throughout the body, extension(s) and
codend of the net. Under the existing regulations, this requirement
applies to the codend only. The minimum mesh size requirement could be
changed annually following the existing Monitoring Committee process
set forth in the FMP. In future years, the minimum mesh size could be
specified to apply to any portion of the entire net, including the
wings, body, extension(s), or codend. The Council and Commission could
recommend to the Administrator, Northeast Region, NMFS (Regional
Administrator), a delayed implementation date for any modification to
the minimum mesh size regulations to account for the availability of
net construction materials. The delay could be for up to 6 months, and
would account for localized shortages in the twine needed to meet the
mesh requirements. The Council and Commission assessed the availability
of net construction materials and recommended an effective date for the
revised mesh requirements of 6 months after the date the final
regulations are published in the Federal Register.
Commercial Moratorium
Amendment 10 would extend indefinitely the moratorium on the entry
of additional commercial vessels into the summer flounder fishery in
the exclusive economic zone. Amendment 2 to the FMP instituted the
vessel moratorium in 1993, which automatically expires December 31,
1997.
Vessel Replacement Criteria
Amendment 10 would permit a vessel with a moratorium permit to be
replaced by another vessel and its permit transferred to the new vessel
without having to leave the fishery involuntarily (e.g., sink or burn),
as is currently required. The replacement vessel could be upgraded if
it met the criteria specified in the Fishery Management Plan for the
Northeast Multispecies Fishery: A one-time horsepower increase that may
not exceed 20 percent of the horsepower of the vessel replaced and a
one-time increase of up to 10 percent in the vessel's length, gross
registered tons (GRT), and/or net tons (NT), all of which must be
performed at the same time. This type of upgrade may be done separately
from an engine horsepower upgrade. Upgrades would be based on the
original vessel's specifications as of the effective date of the final
regulations for Amendment 10.
Expiration of the Moratorium Permit
Amendment 10 would remove the existing provision that requires a
vessel with a moratorium permit to land summer flounder at least once
every 52 weeks to retain the permit. This regulation was originally
intended to reduce effort on the fishery by eliminating inactive
permits. However, since implemented in 1993, no permits have been lost
as a result of this measure and, in fact, the measure may increase
effort as participants fish merely to retain their permit. Therefore,
the elimination of this measure may serve to decrease fishing effort.
Transfer of Summer Flounder at Sea
Amendment 10 would prohibit vessels issued a summer flounder
moratorium permit from transferring or attempting to transfer any
summer flounder from one vessel to another vessel. Transfer means to
begin to remove, to remove, to pass over the rail, or to otherwise take
away fish from any vessel and move them to another vessel. Currently,
there is no such prohibition. As such, vessels might be able to
circumvent regulations such as trip limits, and Federal and/or state
permit requirements by transferring fish at sea. These actions could
increase effort in the summer flounder fishery.
Filleting at Sea
Amendment 10 would allow party/charter boats to fillet summer
flounder at sea if in possession of a state-issued permit that allows
filleting of summer flounder at sea and possession of body parts
smaller than the minimum size.
Commercial Quota System
Amendment 10 would not change the existing commercial quota system.
Currently, the coastwide commercial quota is allocated to each of the
states from Maine to North Carolina, based on their share of the
commercial landings from 1980 through 1989.
Technical Changes
In 50 CFR part 648, Fisheries of the Northeastern United States,
the vessel replacement requirements for the scup, Illex and Loligo
moratorium fisheries are presently specified by referencing the vessel
replacement requirements for the summer flounder fishery. As a result,
[[Page 49197]]
any change to the regulatory text for the vessel replacement
requirements for the summer flounder fishery would result in a change
to the replacement provisions for those other fisheries. Since the
vessel replacement measures for these other moratorium fisheries would
not be changed by Amendment 10, the wording in the regulations would be
revised in order to maintain their current vessel replacement criteria.
That is, the replacement vessel provisions for the Loligo fishery would
be modified to maintain the original intent, and the replacement
provisions for the remaining fisheries would be revised to reference
the Loligo provisions.
Classification
This proposed 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 proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities as follows.
The proposed rule would implement Amendment 10 by revising a
number of the regulations implementing the FMP and its amendments
and by adding a number of new regulations. Specifically, the
proposed rule would modify the commercial minimum mesh size
requirement, continue the moratorium on entry of additional
commercial vessels, modify the vessel replacement criteria, remove
provisions that pertain to the expiration of the moratorium permit,
and prohibit 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 would impact 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) would
be impacted by this rule. However, the compliance costs associated
with the measure are not 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 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 measures would result in no significant economic
impacts on small entities. Additionally, several provisions, such as
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.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: September 15, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be 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
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 [INSERT EFFECTIVE DATE OF THE FINAL
REGULATIONS].
(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 [INSERT EFFECTIVE DATE OF
THE FINAL REGULATIONS].
* * * * *
(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
[[Page 49198]]
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:
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. 97-24922 Filed 9-18-97; 8:45 am]
BILLING CODE 3510-22-F
