[Federal Register Volume 62, Number 50 (Friday, March 14, 1997)]
[Rules and Regulations]
[Pages 12105-12107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6483]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 961129337-7040-02; I.D. 112096A]
RIN 0648-XX75


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; 1997 Scup Specifications

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

ACTION: Final rule and final specifications for the 1997 scup fishery.

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SUMMARY: NMFS issues the final specifications for the 1997 scup fishery 
that include a commercial catch quota, a recreational harvest limit, 
and other management measures. The intent of these measures is to 
prevent overfishing of the scup resource.

DATES: The amendment to Sec. 648.123(a)(1) is effective April 14, 1997. 
The final 1997 scup specifications are effective March 11, 1997 through 
December 31, 1997.

ADDRESSES: Copies of the Mid-Atlantic Fishery Management Council's 
analysis and recommendations are available from David R. Keifer, 
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, 
Federal Building, 300 South New Street, Dover, DE 19904-6790.

FOR FURTHER INFORMATION CONTACT: Lucille L. Helvenston, Fishery 
Management Specialist (508) 281-9347.

SUPPLEMENTARY INFORMATION: Comprehensive measures enacted by Amendment 
8 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management 
Plan (FMP) were designed to rebuild the severely depleted scup stock. 
Amendment 8 established a Monitoring Committee that meets annually to 
review the best available scientific data and make recommendations 
regarding the catch quota and other management measures in the FMP. The 
Committee's recommendations are made to achieve the target exploitation 
rates established in the amendment to reduce overfishing. The Committee 
bases its recommendations on: (1) Commercial and recreational catch 
data; (2) current estimates of fishing mortality; (3) stock status; (4) 
recent estimates of recruitment; (5) virtual population analysis (VPA); 
(6) levels of regulatory noncompliance by fishermen or individual 
states; (7) impact of fish size and net mesh regulations; (8) impact of 
gear other than otter trawls on the mortality of scup; and (9) other 
relevant information.
    Based on the recommendations of the Monitoring Committee, the Mid-
Atlantic Council's Demersal Species Committee makes a recommendation to 
the Council, which in turn makes a recommendation to the Administrator, 
Northeast Region, NMFS. The Council recommended a commercial quota, 
recreational harvest limit, and changes in the minimum mesh regulations 
for 1997.
    The measures contained in this final action are unchanged from 
those in the proposed rule published December 9, 1996, (61 FR 64854) 
and are: (1) A coastwide commercial quota of 6.0 million lb (2.7 
million kg); (2) a recreational harvest limit of 1.947 million lb (0.88 
million kg); (3) an increase in the minimum codend mesh size from 4.0 
inches (10.21 cm) to 4.5 inches (11.43 cm) and (4) seasonal minimum 
mesh threshold levels of 4,000 lb (1,814 kg) in the winter months 
(November--April) and 1,000 lb (453 kg) in the sumer months (May--
October). Detailed background information concerning these measures is 
provided in the proposed rule and is not repeated here.
    The coastwide quota is for the 1997 fishing year, January 1, 1997, 
through December 31. 1997. However, the Council has proposed a 
regulatory change in a separation action that would divide the quota 
into three seasons: Winter 1 (January--April), Summer (May--October) 
and Winter 2 (November--December). The winter quota would be coastwide. 
The summer quota would be allocated on a state-by-state basis. Trip 
limits would be imposed in the winter periods. If this proposal is 
approved, it would be implemented about mid-1997.

Comments and Responses

    The Mid-Atlantic Fishery Management Council (Council) submitted a 
comment in support of the 1997 specifications for the scup fishery. The 
Department of Marine Fisheries of the Commonwealth of Massachusetts 
(MADMF) and an individual submitted comments in opposition to the 
proposed 1997 specifications for the scup fishery.
    Comment: Both MADMF and the individual commenter believe the NMFS 
should not implement the 1997 coastwide commercial quota for several 
reasons. The individual commenter asserts that the absence of any 
constraints on the harvest of the coastwide quota allows the winter 
offshore fishery to catch all of the quota and discriminates against 
inshore harvesters. The MADMF states that, without the proposed 
regulatory change to the quota system, the quota will be harvested 
early in the year and there will be negative impacts from the resulting 
fishery closure. MADMF also notes that quota monitoring should be 
improved prior to implementation.
    Response: The FMP requires NMFS to implement a coastwide commercial 
quota for 1997. NMFS has no legal authority to defer implementation of 
the quota until the regulatory amendment is approved. While NMFS is 
actively involved in the ongoing efforts to improve quota monitoring, 
particularly for state fisheries, NMFS disagrees with the implication 
that the existing monitoring system is inadequate for scup quota 
management. Further, NMFS disagrees with the contention that the quota 
is discriminatory. The quota in and of itself is not discriminatory. 
Although these measures may have negative impacts on different sectors 
of the fishery because of the distance from areas in which scup are 
available, the regulatory measures are not in and of themselves 
discriminatory. The review

[[Page 12106]]

of the amendment concluded that it was consistent with the national 
standards of the Magnuson-Stevens Fishery Conservation and Management 
Act and with other applicable law. NMFS notes that the amendment 
applies to the coastwide fishery rather than just to the Massachusetts 
industry, which the amendment shows has historically accounted for only 
7 percent of the coastwide scup landings.
    Comment: MADMF comments that the implementation of the quota and 
the anticipated fishery closure will not prevent regulatory discards in 
the small mesh fisheries, particularly the squid fishery. MADMF 
proposes that, if the quota is implemented for 1997, NMFS should revise 
the manner in which discards are accounted for in calculating the 
quota. MADMF proposes that discards should only be considered if they 
occur in fisheries that are directed towards scup.
    Response: The minimum mesh requirement and the associated catch 
threshold are intended to discourage vessel operators using small mesh 
for other species from continuing to fish when they encounter large 
amounts of scup that they would be required to sort out from other 
species and discard. The FMP also specifies that the annual total 
allowable catch (TAC) will be set to attain the target exploitation 
rates specified in the plan. Because the TAC represents the sum of 
discards and quota, there is an incentive for the industry to reduce 
discards in order to increase quotas. NMFS cannot modify the FMP as 
suggested by MADMF to change the manner in which discards are deducted 
from the TAC.
    MNFS notes that if these measures do not have the desired effects 
on discard levels, the FMP provides the Council with the option of 
specifying season and area closures in the future if necessary to 
address such concerns.
    Comment: The individual commenter stated that fishermen from 
Massachusetts were not represented in the scup management process and 
were unfairly impacted.
    Response: The process to adopt and implement the amendment involved 
public hearings where members of the industry among other members of 
the public were allowed to comment on the proposed measures. NMFS notes 
that in 1995, hearings were held in New Bedford, MA, and Newport, RI, 
on July 18th and July 17th, respectively. The proposed rule also 
solicited comments from the public that were considered by NMFS in the 
review of the amendment. Therefore, NMFS concludes that Massachusetts 
industry participants were given several opportunities to be 
represented in the scup management process.
    Comment: MADMF suggested that the 4,000-lb (1,814-kg) threshold 
that will trigger the minimum mesh requirement should be decreased to 
100 lb (45 kg). MADMF proposes that this decrease will lessen the 
discards of small juvenile scup.
    Response: The 4,000-lb (1,814-kg) threshold that will trigger the 
minimum mesh requirement was set in response to analysis of scientific 
data and public comment. The amendment showed that in 1992 and 1993, a 
large share of the total scup landings (80 percent) was comprised of 
landings in excess of 4,000 lb (1,814 kg). Therefore, the threshold was 
set at 4,000 lb (1,814 kg) to target the majority of vessels landing 
scup. A much lower threshold would penalize a large number of vessels 
that catch small amounts of scup as a catch in various mixed trawl 
fisheries. These vessels will be forced to discard legal size scup if 
they are caught while fishing for other species with mesh smaller than 
the scup minimum size. The cost that would be borne by the industry as 
the result of a drastic reduction in the threshold greatly outweighs 
the benefits that would accrue to the stock. The 4,000-lb (1,814-kg) 
threshold allows vessel operators to retain and land legal size scup 
that will be counted toward the quota.
    Comment: MADMF and the individual commenter both disagree with 
NMFS' conclusion in the preamble of the proposed rule that the proposed 
measures will not have a significant economic impact on a substantial 
number of small entities. MADMF notes that NMFS concluded that the 
effect of the quota will be minimal because the 1997 quota level is not 
significantly lower than the commercial landings in 1995, the most 
recent year for which data are available. MADMF states that the scup 
landings data for the Massachusetts fishery are incomplete. Therefore, 
the effect of the quota will not be minimal for the State's industry. 
MADMF also asks why the commercial quota is not reduced from the 1995 
level if the scup stock is severely depleted.
    Response: NMFS disagrees with MADMF and the individual commenter 
that the incomplete data from the State of Massachusetts would alter 
the conclusion that there are no significant impacts on the industry. 
While NMFS accepts that MADMF may well be correct in stating that these 
data are incomplete for Massachusetts, NMFS cannot conclude that there 
is a significant impact on industry based solely on such a statement. 
NMFS based its conclusions concerning the economic impacts of these 
measures on the best available data. NMFS notes that the regulatory 
amendment for the scup fishery, currently under review, invites state 
fisheries agencies to update the landings data for their states in 
order to make future adjustments to the summer state quota shares. NMFS 
encourages MADMF to take such action if the regulatory amendment is 
approved.
    NMFS believes that these annual specifications address the depleted 
nature of the scup stock. The 1997 reductions in exploitation are 
anticipated to be realized due to a reduction in discards rather than a 
reduction in landings. The Council selected a TAC level of 9.11 million 
lb (4.13 million kg) as having a 50 percent probability of achieving 
the target exploitation rate of 47 percent for 1997. The TAC was then 
divided between the commercial and recreational sectors of the fishery 
in the shares specified in the FMP (78 percent commercial and 22 
percent recreational). The specifications of 6.0 million lb (2.7 
million kg) for the commercial quota and 1.947 million lb (0.88 million 
kg) for the recreational harvest limit were derived from the respective 
TACs by subtracting the expected discards for 1997 (97 percent of the 
discards are allocated to the commercial fishery and 3 percent are 
allocated to the recreational fishery). The amount subtracted from the 
commercial TAC was reduced to account for an anticipated decrease in 
discards due to the implementation of minimum mesh size and fish size 
restrictions in 1996 and 1997.
    Comment: MADMF expresses concern that the quota will alter 
fishermen's behavior and anticipates a change in the fishery for summer 
flounder (fluke).
    Response: It is unclear from the comment what change MADMF 
anticipates or what action it is advocating. NMFS cannot respond other 
than to agree that the imposition of management measures on a fishery 
that was not previously regulated is intended to alter fishing behavior 
to the benefit of the stock and to the long-term benefit of the 
industry.
    Comment: A comment from the Council supports the 1997 
specifications for the scup fishery.
    Response: NMFS notes the Council's support of the 1997 
specifications for the scup fishery.

Classification

    This action is authorized by 50 CFR part 648 and has been 
determined not to be significant for purposes of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation, 
Department

[[Page 12107]]

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 under the 
Regulatory Flexibility Act (RFA). The reasons for the finding of no 
significant economic impact under the RFA were discussed in the 
proposed rule published in the Federal Register on December 9, 1996 (61 
FR 64854), and are not repeated here. NMFS received several comments, 
which are addressed above, regarding this certification. These comments 
did not cause NMFS to change its determination regarding the 
certification. As a result, no regulatory flexibility analysis was 
prepared.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.


    Dated: March 10, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR Part 648 is amended 
to read 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. 648.123, paragraph (a)(1) is revised to read as follows:


Sec. 648.123  Gear restrictions.

    (a) Travel 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 from 
November 1 through April 30 or 1,000 lb or more (454 kg or more) of 
scup from May 1 through October 31 must fish with nets that have a 
minimum mesh size of 4.5 inches (11.43 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.
* * * * *
[FR Doc. 97-6483 Filed 3-11-97; 4:32 pm]
BILLING CODE 3510-22-M