[Federal Register Volume 61, Number 60 (Wednesday, March 27, 1996)]
[Rules and Regulations]
[Pages 13452-13454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7386]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 625

[Docket No. 960314074-6074-01; I.D. 030696C]
RIN: 0648-XX52


Summer Flounder Fishery; Emergency for the Scup Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Emergency interim rule.

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SUMMARY: NMFS amends the regulations implementing the Summer Flounder 
Fishery Management Plan (Summer Flounder FMP) to establish management 
measures for the scup fishery. These measures are contained in an 
amendment to the Summer Flounder FMP that will be submitted for NMFS 
review shortly. Emergency implementation of these measures is necessary 
because of the overexploited status of the stock. This action 
establishes a minimum fish size for both the recreational and 
commercial fisheries, and implements a minimum codend mesh requirement 
for otter trawl vessels that possess 4,000 lb or more (1,814 kg or 
more) of scup harvested in or from the exclusive economic zone (EEZ).

EFFECTIVE DATE: This emergency interim rule is effective from March 22, 
1996, through June 25, 1996.

ADDRESSES: Copies of documents supporting this action, including the 
environmental assessment, are available from David R. Keifer, Executive 
Director, Mid-Atlantic Fishery Management Council, Room 2115 Federal 
Building, 300 S. New Street, Dover, DE 19901-6790.

FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy 
Analyst, (508)281-9221.

SUPPLEMENTARY INFORMATION: The Mid-Atlantic Fishery Management Council 
(Council) began the development of a scup fishery management plan (scup 
FMP) in 1978. Although preliminary development work was done, a scup 
FMP was not completed.
    In January 1990, the Council and the Atlantic States Marine 
Fisheries Commission (ASMFC) began the development of an amendment to 
the Summer Flounder FMP to manage scup. However, the development of an 
amendment to manage scup was delayed because of a series of other 
amendments to the Summer Flounder FMP. Work on a separate scup FMP was 
not resumed until 1993.
    The Council and the ASMFC adopted a scup FMP for NMFS review in 
November 1995. The Council had accelerated its work on the scup FMP 
after the release in March 1995 of the Plenary Report of the 19th Stock 
Assessment Workshop (19th SAW). The 19th SAW report established that 
the scup spawning stock biomass was at a record low level, and warned 
that recruitment failure in a single year could collapse the fishery. 
The report urged immediate action to substantially reduce fishing 
mortality. To provide some protection to the stock immediately, the 
Council also voted in November 1995 to request emergency implementation 
on January 1, 1996, of some of the management measures contained in the 
proposed scup FMP. The efforts of the Council and NMFS to prepare and 
review the required documents associated with emergency action were 
delayed by the government shutdown from December 21, 1995, through 
January 7, 1996, and by additional shutdowns due to severe winter 
weather.
    These delays have also affected the submission of the proposed scup 
FMP. In addition, subsequent to the adoption of the scup FMP by the 
Council, NMFS requested that the proposed scup FMP be incorporated into 
the Summer Flounder FMP, as an amendment, to reduce the number of 
separate FMPs and regulations. As a result, the Council shortly will 
submit the scup FMP for NMFS review as Amendment 8 to the Summer 
Flounder FMP.
    The management unit for the fishery is scup (Stenotomus chrysops) 
in U.S. waters of the Atlantic Ocean from 35 deg.15.3' N. lat., the 
latitude of Cape Hatteras Light, N.C., northward to the U.S.-Canadian 
border.
    Implementing regulations are authorized by the Magnuson Fishery 
Conservation and Management Act (Magnuson Act), and are found at 50 CFR 
part 625, subparts C and D. This action is consistent with the criteria 
contained in a ``Notice of policy guidelines for the use of emergency 
rules'' published at 50 CFR chapter VI (57 FR 375, January 6, 1992). 
The Council and NMFS agree that the biological status of the scup stock 
requires immediate action through this emergency interim rule for 
conservation and management measures to protect the stock while 
Amendment 8 undergoes Secretarial review. The measures contained in 
this action for minimum fish sizes and minimum mesh size are the same 
as those adopted by the Council for Amendment 8. However, issuance of 
this emergency rule in no way prejudges approval or disapproval of 
Amendment 8. Further, this emergency rule contains a gear restriction, 
the effective date of which will be delayed 15 days to provide adequate 
time for affected industry members to adjust.

Background

    Abundance indices derived from NMFS trawl surveys and surveys 
conducted by the States of Rhode Island and Connecticut, and the 
Commonwealth of Massachusetts, indicate that the biomass of adult scup 
is at low levels. For example, the Northeast Fisheries Science Center's 
autumn offshore survey indices of scup (age 1+) abundance have declined 
dramatically in recent years. The 1993 index was the third lowest value 
observed in the time series and the 1994 index was the all-time lowest 
value since the survey began in 1967.

[[Page 13453]]

    Reduced abundance is also evident in data collected from commercial 
otter trawl vessels. Standardized catch per unit effort (CPUE) of these 
vessels peaked in 1978 at greater than 2.5 metric tons (mt)/day. CPUE 
has since trended downward to about 1.0 mt/day in recent years. Based 
on the trawl survey and CPUE indices, the overall declining trend 
suggests that recent exploitation has reduced stock abundance 
substantially.
    Additionally, the length frequency distribution of scup in 
commercial landings has shifted to smaller, younger fish, including 
young-of-year, indicating that the fishery is dependent primarily upon 
new year classes. Although scup may attain ages of 20 years, recent 
landings have been composed primarily of age 2 and 3 year old scup with 
a general absence of larger, older fish in the landed catch. This 
truncated age distribution also suggests a reduced population level.
    All available information indicates that scup are overexploited and 
have been for several years. The scup advisory report issued from the 
19th Stock Assessment Workshop Plenary Report in March 1995 stated that 
the current spawning stock biomass (SSB) is at a record low level and 
that recruitment has decreased in recent years. The report further 
warns that recruitment failure in a single year could collapse the 
fishery and that fishing mortality should be ``substantially reduced 
immediately.'' The current condition of the resource is such that 
immediate action is required to reduce fishing mortality on fully-
recruited fish and allow for increases in SSB and yield. In the absence 
of a strong year class, continued exploitation at current levels will 
lead to further decline in the SSB.
    In light of the overexploited condition of the stock, the Council 
requested emergency implementation of a 9-inch total length (TL) 
minimum fish size for the commercial fishery, and a 7-inch TL minimum 
fish size for the recreational fishery. These measures are included 
among those proposed for implementation in the first year of management 
if Amendment 8 is approved.
    Discards of small fish are extremely high in this fishery and are 
particularly acute during years of good recruitment when small fish are 
abundant. NMFS has found that establishing a minimum fish size without 
an accompanying minimum mesh requirement would increase the discard of 
small fish. Therefore, this emergency action also establishes a 4-inch 
(10.2-cm) minimum codend mesh size for otter trawl vessels when those 
vessels possess 4,000 lb or more (1,814 kg or more) of scup harvested 
in or from the EEZ. The 4,000-lb (1,814-kg) threshold for the minimum 
mesh size requirement was selected through an iterative process between 
the Council and industry representatives. It is considered to represent 
the level at which the directed fishery is differentiated from the 
bycatch fishery. This level is substantiated by the fact that trips of 
4,000 lb (1814 kg) or more accounted for 80 percent of all landings of 
scup in 1992 and 1993. The measures are designed to reduce discarding 
of small scup by otter trawl vessels, increase yields, and allow more 
scup to reach sexual maturity and spawn.
    Analyses of these measures indicate that implementation on an 
emergency basis may impose a short-term cost on some harvesters, 
although most already use the required mesh. The benefits of 
implementing this action include a reduction of discards of small fish 
and an improved economic return to the industry due to resulting 
increased yields. The benefits outweigh the costs to the industry of 
complying with these measures.

Classification

    The Assistant Administrator Fisheries, NOAA (AA) has determined 
that this rule is necessary to respond to an emergency situation and is 
consistent with the Magnuson Act and other applicable law.
    The AA finds that failure to implement the actions in this 
emergency rule could result in collapse of the fishery.
    The foregoing constitutes good cause to waive the requirement to 
provide prior notice and an opportunity for public comment, pursuant to 
the authority set forth at 5 U.S.C. 553(b)(B), as such procedures would 
be contrary to the public interest. Similarly, the need to implement 
these measures in a timely manner to address a biological emergency 
constitutes good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effectiveness. However, a 15-day delay in effectiveness of the 
gear restriction contained in Sec. 625.54, and a prohibition related to 
that measure in Sec. 625.39(a)(3), is necessary to allow the industry 
sufficient time to adjust to this new requirement.
    This emergency rule has been determined to be not significant for 
purposes of E.O. 12866.
    The emergency rule is exempt from the requirements of the 
Regulatory Flexibility Act to prepare a regulatory flexibility analysis 
because this rule is not required to be issued with prior notice and 
opportunity for public comment.

List of Subjects in 50 CFR Part 625

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: March 20, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 625 is amended 
as follows:

PART 625--SUMMER FLOUNDER AND SCUP FISHERY

    1. The authority citation for part 625 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. Subpart C, consisting of Secs. 625.31, 625.32, 625.33, and 
625.39, and subpart D, consisting of Secs. 625.53 and 625.54 are added 
to read as follows:

Subpart  C--General Provisions, Scup
625.31  Purpose and scope.
625.32  Definitions.
625.33  Relation to other laws.
625.39  Prohibitions.
Subpart  D--Management Measures, Scup
625.53  Minimum sizes.
625.54  Gear restrictions.

Subpart C--General Provisions, Scup


Sec. 625.31  Purpose and scope.

    The regulations in this part govern the conservation and management 
of scup.


Sec. 625.32  Definitions.

    In addition to the definitions in the Magnuson Act and in 
Sec. 620.2 of this chapter, the terms used in this part have the 
following meanings:
    Charter or party boat means any vessel that carries passengers for 
hire to engage in fishing.
    Commercial fishing means fishing that is intended to or results in 
the barter, trade or sale of fish.
    Land means to begin offloading fish, to offload fish, or to enter 
port with fish.
    Recreational fishing means fishing that is not intended to, nor 
does it result in, the barter, trade, or sale of fish.
    Recreational fishing vessel means any vessel from which no fishing 
other than recreational fishing is conducted. Charter and party boats 
are considered recreational fishing vessels for purposes of the scup 
minimum size requirement.
    Scup means the species Stenotomus chrysops.
    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.

[[Page 13454]]



Sec. 625.33  Relation to other laws.

    (a) The relation of this part to other laws is set forth in 
Sec. 620.3 of this chapter and paragraph (b) of this section.
    (b) Nothing in these regulations supersedes more restrictive state 
management measures.


Sec. 625.39  Prohibitions.

    (a) In addition to the general prohibitions specified in Sec. 620.7 
of this chapter, it is unlawful for any person owning or operating a 
vessel fishing commercially for scup, which are harvested in or from 
the EEZ, to do any of the following:
    (1) Land or possess at sea any scup, or parts thereof, that fail to 
meet the minimum fish sizes specified in Sec. 625.53(a);
    (2) Sell any scup harvested in or from the EEZ that fail to meet 
the minimum fish size specified in Sec. 625.53(a).
    (3) Possess 4,000 or more lb (1,814.4 or more kg) of scup harvested 
in or from the EEZ unless the vessel meets the minimum mesh size 
requirement specified in Sec. 625.54(a).
    (4) Fish with or possess nets or netting in the EEZ that do not 
meet the minimum mesh requirement, or that are modified, obstructed, 
constricted, or constructed with mesh in which the bars entering or 
exiting the knots twist around each other, if subject to the minimum 
mesh requirement specified in Sec. 625.54, unless the nets or netting 
are stowed in accordance with Sec. 625.24(d).
    (5) Engage in recreational fishing in the EEZ while simultaneously 
conducting commercial fishing operations.
    (b) It is unlawful for the owner or operator of any recreational 
fishing vessel, including party or charter boats, to: (1) Possess scup 
harvested in or from the EEZ smaller than the minimum size limit for 
recreational fishermen established pursuant to Sec. 625.53(b);
    (2) [Reserved]
    (c) It is unlawful for any person to do any of the following:
    (1) Purchase any scup harvested in or from the EEZ that fail to 
meet the minimum fish size specified in Sec. 625.53(a).
    (2) Possess any scup harvested in or from the EEZ that fail to meet 
the minimum fish size specified in Sec. 625.53(b).
    (3) Sell any scup harvested in or from the EEZ that fail to meet 
the minimum fish sizes specified in Sec. 625.53(a).
    (4) Land any scup harvested in or from the EEZ in fillet form with 
the skin removed.

Subpart D--Management Measures, Scup


Sec. 625.53  Minimum sizes.

    (a) The minimum size for scup is 9 inches (22.9 cm) total length 
for all vessels engaged in commercial fishing.
    (b) The minimum size for scup is 7 inches (17.8 cm) TL for all 
vessels that are engaged in recreational fishing.
    (c) The minimum size applies to whole fish or any part of a fish 
found in possession, e.g., fillets.


Sec. 625.54  Gear restrictions.

    (a) General. Applicable April 8, 1996, otter trawl vessels that 
land or possess 4,000 lb or more (1,814.4 kg or more) of scup harvested 
in or from the EEZ must fish with nets that have a minimum mesh size of 
4 inches (10.2 cm) 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.
    (b) Mesh-size measurement. Mesh sizes will be measured according to 
the procedure described in Sec. 625.24(c).
    (c) Net modification and mesh obstruction and constriction. Vessels 
are prohibited from modifying, obstructing, and/or constricting their 
nets as described in Sec. 625.24(d) and (e).
    (d) Stowage of nets. Applicable APril 8, 1996, otter trawl vessels 
retaining 4,000 lb or more (1,814.4 or more kg) of scup harvested in or 
from the EEZ, and subject to the minimum mesh requirement specified in 
paragraph (a) 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 the specifications 
specified in Sec. 625.24(f) and that can be shown not to have been in 
recent use is considered to be not ``available for immediate use.''
[FR Doc. 96-7386 Filed 3-22-96; 3:45 pm]
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