[Federal Register Volume 62, Number 99 (Thursday, May 22, 1997)]
[Rules and Regulations]
[Pages 27978-27985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13504]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 960805216-7111-06; I.D. 121796B]
RIN 0648-AH06
Fisheries of the Northeastern United States; Regulatory Amendment
to the Fishery Management Plan for the Summer Flounder, Scup, and Black
Sea Bass Fisheries; Commercial Quota Harvested for Delaware and New
Hampshire
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; commercial quota harvest.
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SUMMARY: NMFS issues this final rule to implement approved measures
contained in a regulatory amendment to the Fishery Management Plan for
the Summer Flounder, Scup, and Black Sea Bass Fisheries (FMP). This
regulatory amendment revises the allocation and management of the
commercial scup quota. As a consequence of this rule, NMFS further
announces that no commercial scup quota is available for the States of
Delaware and New Hampshire for the 1997 Summer period, which ends
October 31, 1997.
EFFECTIVE DATE: May 20, 1997.
ADDRESSES: Copies of the regulatory amendment 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.
Comments regarding burden-hour estimates for collection-of-
information requirements contained in this final rule should be sent to
Andrew A. Rosenberg, Ph.D., Regional Administrator, 1 Blackburn Drive,
Gloucester, MA 01930, and to the Office of Information and Regulatory
Affairs, Office of Management and Budget (OMB), Washington, D.C. 20502
(Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy
Analyst, 508-281-9221.
SUPPLEMENTARY INFORMATION: This final rule implements approved measures
contained in the regulatory amendment to the FMP, which was prepared by
the Mid-Atlantic Fishery Management Council (Council) and the Atlantic
States Marine Fisheries Commission (Commission). Background concerning
the development of this regulatory amendment was provided in the notice
of proposed rulemaking (62 FR 5375, February 5, 1997), and is not
repeated here.
This rulemaking revises the manner in which the annual commercial
quota is allocated to the scup fishery. With this revision, the total
annual allowable catch (TAC) for the commercial fishery
[[Page 27979]]
is allocated into two Winter periods: January-April (Winter I) and
November-December (Winter II); and one Summer period: May-October
(Summer). Based on historical landings data, the quota is allocated to
each period as follows: Winter I--45.11 percent; Summer--38.95 percent;
and Winter II--15.94 percent. Discard estimates for each period are
subtracted from the TAC for each period to derive the commercial quota
for each period. The quota for each of the two Winter periods is
allocated on a coastwide basis to the coastal states from Maine to
North Carolina. During these Winter periods, coastwide landings (trip)
limits, recommended by the Council and Commission as part of the annual
fishing measures and implemented by the states, are in effect. This
regulatory amendment specifies that during the 1997 Winter II period,
the landings limit will be 12,000 lb (5,443 kg) for vessels with a
Federal scup moratorium permit. During the Summer period, the quota is
distributed among the coastal states based on the percentage shares
specified in this regulatory amendment. The states are responsible for
the management of their respective quotas.
Disapproved Measure
NMFS announces the disapproval of the de minimus provision
specified in this regulatory amendment because it violates national
standard 7, raises questions of consistency with national standard 1,
and appears to be arbitrary and capricious. This measure would require
an annual examination of state landings to determine if a state should
be granted de minimus status. De minimus is defined as landings in a
state during the Summer period that are less than 0.1 percent of the
overall Summer quota. This determination was to be based on landings
for the last preceding year for which data are available. The de
minimus measure imposes an administrative burden and cost without
conferring any demonstrable administrative or conservation benefit.
Consequently, this provision contravenes the requirements of national
standard 7.
In the preamble to the proposed rule to implement this regulatory
amendment, NMFS noted that the de minimus provision was unclear and
invited comments specific to the operation of this provision. The
Council and the State of Delaware's Division of Fish and Wildlife
submitted comments to interpret the provision. However, the comments
did not address NMFS' concern that it is not clear from the record 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 exploitation rate
reduction goals in the FMP, since vessels without Federal permits
fishing exclusively in that state's waters could continue to land scup.
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 scup much larger 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 landing 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.
Last, the de minimus provision submitted by the Council and
Delaware included measures that went beyond the scope of measures taken
to public hearing. For instance, the Council suggested prohibiting scup
landings by any federally permitted vessels in a state granted de
minimus status. To implement this provision at this point would be
inconsistent with the Administrative Procedure Act because the public
has had no opportunity to participate in this measure's development or
to comment on it. Also, note that Table 2 in this final rule lists the
states and their percent shares for the Summer period commercial quota.
These percent shares are the same as were listed in the proposed rule.
However, had the de minimus provision been approved, these percent
shares would have changed.
Approved Measures: Implementation of the Revised Quota System
A coastwide commercial quota for scup was implemented on January 1,
1997. Final specifications, effective March 11, 1997 (62 FR 12105,
March 14, 1997), apportioned a quota of 6.0 million lb (2.7 million kg)
to the commercial scup fishery. This quota was derived by subtracting
an estimated 1997 discard of 1.103 million lb (0.5 million kg) from the
7.103 million lb (3.2 million kg) allocated to the commercial sector.
This regulatory amendment specifies that any quota harvested between
January 1, 1997, and April 30, 1997, will count against the Winter I
allocation. Any landings in excess of the 1997 Winter I allocation will
be deducted from the allocation for the 1997 Winter II period. Landings
in excess of the total of both 1997 Winter periods will be deducted
from 1998 Winter periods. This deduction would not affect the Summer
allocation in either year. However, current data show approximately
800,000 lb (362,874 kg) have been landed through March 22, 1997.
Therefore, an overage of the Winter I allocation, specified in the
table below, would be unlikely. As such, no adjustment is necessary to
the Winter II allocation. However, if additional data become available
that show landings during this time are in excess of the Winter I
allocation, an adjustment will be made and the public informed through
notification in the Federal Register.
A summary of the 1997 allocations for the three periods is shown in
Table 1.
Table 1.--Period Allocations of Commercial Scup Quota
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Quota allocation
Period Percent TAC \1\ Discards \2\ -------------------------------
(pounds) (kilograms)
--------------------------------------------------------------------------------------------------------\3\-----
WINTER I............................. 45.11 3,204,163 497,563 2,706,600 1,227,693
SUMMER............................... 38.95 2,766,619 429,619 2,337,000 1,060,045
WINTER II............................ 15.94 1,132,218 175,818 956,400 433,816
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TOTAL............................ 100.00 7,103,000 1,103,000 6,000,000 2,721,554
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\1\ Total Allowable Catch, in pounds. \2\ Discard estimates, in pounds. \3\ Kilograms are as converted
from pounds.
[[Page 27980]]
The 1997 commercial quota for the Summer period (2,337,000 lb;
1,060,045 kg), apportioned among the states according to the percentage
shares specified in Sec. 648.120(d)(3), is presented in Table 2.
Table 2.--Summer Period (May-October) Commercial Quota Shares
------------------------------------------------------------------------
1997 allocation
State Share ----------------------------
(percent) (pounds) (kilograms)
----------------------------------------------------------------\1\-----
Maine.......................... 0.13042 3,048 1,383
New Hampshire.................. 0.00004 1 0
Massachusetts.................. 15.49117 362,029 164,214
Rhode Island................... 60.56588 1,415,425 642,026
Connecticut.................... 3.39884 79,431 36,029
New York....................... 17.05295 398,527 180,769
New Jersey..................... 3.14307 73,453 33,318
Delaware....................... 0.00000 0 0
Maryland....................... 0.01288 301 137
Virginia....................... 0.17787 4,157 1,886
North Carolina................. 0.02688 628 285
----------------------------------------
Total...................... 100.00000 2,337,000 1,060,045
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\1\ Kilograms are as converted from pounds and do not add to the
converted total due to rounding.
Section 648.121(b) requires the Administrator, Northeast Region,
NMFS (Regional Administrator) to monitor the Summer period state
commercial quotas and determine the date when a state commercial quota
is harvested. NMFS is required to publish notification in the Federal
Register advising a state and notifying vessel and dealer permit
holders that, effective upon a specific date, a state's Summer period
commercial quota has been harvested and that no Summer period
commercial quota is available for landing scup in that state for the
remainder of the period. Because the amount of commercial quota that is
allocated for the Summer period to the State of New Hampshire is 1 lb
(less than 1 kg) and to the State of Delaware is 0 lb (0 kg), the
Regional Administrator has determined that no quota is available for
landings in those states for the Summer period.
The regulations at Sec. 648.4(b) provide that Federal permit
holders agree, as a condition of the permit, not to land scup in any
state that the Regional Administrator has determined no longer has
commercial quota available. Therefore, effective 0001 hours May 20,
1997, until 2400 hours, October 31, 1997, landings of scup in New
Hampshire or Delaware by vessels holding commercial Federal fisheries
permits are prohibited, unless quota becomes available through a
transfer and is announced in the Federal Register. Federally permitted
dealers are also advised that they may not purchase scup from federally
permitted vessels that land in New Hampshire or Delaware for the
remainder of the Summer period or until quota becomes available through
a transfer.
Comments and Responses
Written comments from the Commonwealth of Massachusetts Division of
Marine Fisheries (MA-DMF); the Commonwealth of Massachusetts Executive
Office of Environmental Affairs, Office of Coastal Zone Management (MA-
OCZM); the State of Delaware Division of Fish and Wildlife (Delaware);
the Council; three fishing industry associations; one U.S. Congressman;
and six members of the public were received during the public comment
period, which ended on March 7, 1997. One association letter was
accompanied by a petition that was signed by 314 individuals. Several
written comments were also received during the public comment period
that were not relevant to the proposed rule for this regulatory
amendment. Those comments are not addressed here.
Comment: Delaware and the Council submitted a comment to explain
the de minimus provision. Specifically, Delaware interpreted the
provision to include the following points, and the Council concurred:
(1) De minimus status would be valid for 1 year; (2) de minimus quota
would be equal to 0.1 percent of the coastwide summer total and that
amount would be subtracted from the remainder prior to allocation to
the other states; (3) no landings of scup would be permitted by
federally permitted fishing vessels in states granted de minimus
status; (4) to apply for de minimus status, a state must show
``reasonable steps'' were taken to assure landings would not exceed its
de minimus allocation; (5) landings in excess of a de minimus state's
allocation would be taken off next year's allocation; (6) states
granted de minimus status would submit an annual report to the
Monitoring Committee, the Council, and the Board, detailing scup
landings and compliance.
Response: For the reasons noted in the preamble of this final rule,
NMFS has disapproved the provision to grant de minimus status to
states. As noted in the preamble, the clarification submitted did not
clarify adequately the measures and actually raised new concerns about
the provision.
Comment: One industry association urged disapproval because of the
rapid pace used to develop the quota measure. The association felt that
there was inadequate time for constructive discussion of the
alternatives.
Response: Amendment 8 to the FMP, approved on July 29, 1996 (61 FR
43420, August 23, 1996), stressed the Council's intention to revise the
coastwide commercial quota allocation system contained within it. Since
the Council contemplated revisions in Amendment 8, those changes are
promulgated through this regulatory amendment, instead of a plan
amendment. However, a regulatory amendment does not exempt an action
from full public participation afforded under the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act). Public
hearings for this regulatory amendment were held from September 10,
1996,
[[Page 27981]]
through September 12, 1996, in coastal communities from Buzzards Bay,
MA, to Cape May Courthouse, NJ. This schedule of hearings invited
widespread public input into the development of the regulatory
amendment, including its alternatives. This schedule is entirely
consistent with the legal requirements that pertain to the fishery
management plan development process.
Comment: Two commenters urged disapproval of the regulatory
amendment as inconsistent with national standard 4. One U.S.
Congressman recommended disapproval of the regulatory amendment because
of the Summer allocations to the states and his concern about the
Massachusetts allocation. One individual requested that NMFS disapprove
the regulatory amendment, because he feels it is based on inaccurate
data, fails to address differing discard rates by gear type, and
imposes no effort control on gear types with high discard rates. This
commenter believes that national standard 4 is violated by both the
coastwide quota approved under Amendment 8 to the FMP and this
regulatory amendment.
Response: For the reasons noted in this preamble, NMFS determined
all measures except de minimus to be consistent with the national
standards and all other applicable laws. NMFS disagrees that annual
allocations, or their distribution in either Amendment 8 or this
regulatory amendment, violate national standard 4. For the most part,
the distribution of the allocations is on a coastwide basis. During the
Winter period coastwide quotas, all industry participants will operate
under uniform landings limits regardless of where they are fishing or
in which state they reside. A coastwide quota does not have a
discriminatory effect between residents of different states, as such a
measure is indifferent to the location of the fishing effort that
results in its harvest. While many would like to see higher annual
quotas, that desire conflicts with the conservation goals established
in Amendment 8, which are consistent with the principal focus of the
Magnuson-Stevens Act to prevent overfishing and to rebuild overfished
stocks, of which scup is one. This approach to management does not
raise any issues with respect to national standard 4. Further, the
state-by-state quota system in the Summer period established by this
regulatory amendment is equally consistent with national standard 4.
National standard 4 requires that any allocation be fair and
equitable to all participants in the fishery. This requirement does not
translate into a management scheme in which all state quotas have to be
the same or similar. The fair and equitable aspect of national standard
4, as applied to this regulatory amendment, relates to the manner in
which the allocation is assigned to the states. In this instance,
during the Summer period, the assignment of the quota to the states is
based on the same formula. Each state receives a percentage of the
quota based on the percentage of the overall catch represented by the
states' landings data from 1983 through 1992. The states are going to
share the quota differently since their historical percentage of the
overall landings are different. The historical landings data are the
best available data upon which to base the allocation system. Use of
these data is consistent with the requirements of national standard 2.
Further, the regulatory amendment specifies that those percentages may
be revised if additional data are provided to indicate that a state's
landings data were incomplete.
This regulatory amendment cannot impose effort control on gear
types with high discard rates because at the present time such
information is not available for analysis. The issue is addressed
elsewhere in this preamble.
Comment: Two industry associations expressed their belief that the
data available are inadequate for use as a basis for management.
Response: NMFS disagrees that available data are not sufficient to
support the measures in this regulatory amendment. The measures rely
upon the best scientific data available from both NMFS and the states.
While data are lacking for certain elements of this fishery--notably
landings from some states' inshore handline fisheries--this regulatory
amendment does contain the provision to allow states to revise their
summer shares based on amended data for the historical period. Further,
if gear-specific data become available, that data could be reflected in
the annual quota calculation.
Comment: The MA-DMF commented that the regulatory amendment
violates national standard 9 because it fails to reduce bycatch.
Response: To begin addressing discards in the scup fishery, and
bycatch of scup in other fisheries, the final specifications for the
1997 scup fishery revised gear requirements for the commercial sector
of this fishery. Specifically, the minimum codend mesh for otter trawl
vessels was increased to 4.5 inches (11.43 cm), triggered by the
harvest of a threshold of 4,000 lb (1,814 kg) from November through
April, and 1,000 lb (453 kg) from May through October. The intent of
this measure is to encourage offshore vessels that target squid with
1.875 inch (4.76 cm) mesh, to move off concentrations of scup, unless
the vessel intends to continue fishing with the larger mesh. As the
regulatory amendment calls for discards to be subtracted from a
period's TAC, there is further incentive to discard less, as lower
levels of discards could also be reflected in the annual quota
calculation. This approach is consistent with national standard 9 that
directs, in part, that to the extent practicable, bycatch should be
minimized.
Comment: One industry association expressed concern about the
adequacy of data available to estimate discards (referring to the
estimate as ``subjective'') and also about the methods for using those
data in calculating the quotas.
Response: Since the estimate of scup discards are the best
available data at this time, it would be inappropriate to characterize
these data as ``subjective.'' The term ``subjective'' implies that the
estimates are modified by individual bias, when, in fact, the estimates
used are based on direct observations from sea sampling and landings.
These data are the best scientific information available to NMFS. The
estimation methodology has been reviewed and accepted by the NMFS Stock
Assessment Workshop process, which is a peer-reviewed process involving
participants from academia, Federal and state agencies, and industry.
With this regulatory amendment, the discard estimates attributable
to a period are to be subtracted from that period's TAC. The first step
in estimating a TAC (used to determine the quota) is estimating current
stock size. That stock size estimate is based on an analysis of the
effects of both discards and landings. The target exploitation rate,
including the effects of both discards and landings, is then ``plugged
into'' the current stock size to determine the TAC. It is assumed that
the observed discard pattern (including the ratio of discards to
landings of fish at each age) in a given year will persist in the year
for which the TAC is allocated. Thus, the TAC equals landings plus
discards. If discards are not subtracted from the TAC, and the entire
TAC is allowed as landings, then the target exploitation rate will be
substantially exceeded.
Comment: Three industry associations, two individuals, and the MA-
DMF questioned the adequacy of discard data used in calculating the
commercial quota. Concern was expressed about inadequate sea sampling
of offshore freezer trawler vessels and the lack of specific action to
reduce discards. The MA-DMF
[[Page 27982]]
contends that the treatment of the discard data is inequitable to the
Massachusetts fishery.
Response: The amount of discard data that may be collected is
dependent on the amount of funding available for sea sampling in a
given year. NMFS notes that sea sampling is especially difficult for
the scup fishery, as the fishery is pursued over a wide geographic
range as well as a wide range of seasons and gear types. However, this
regulatory amendment and the existing FMP rely on data that are the
best available scientific information.
Comment: Three industry associations and one U.S. Congressman felt
the regulations gave no consideration to past conservation actions
taken by the Commonwealth of Massachusetts and that Massachusetts lacks
effective participation in fishery management plans administered
jointly by the Council and Commission. Some of these commenters felt
that this apparent lack of participation by Massachusetts was in
violation of national standard 4.
Response: The allocation of commercial quota is based on data for a
state's historical fishery from the base years of 1983 through 1992 and
includes all data supplied by NMFS and the states for those years.
Measures adopted by Massachusetts in 1992 and subsequent years,
including a ban on night dragging and minimum fish size, are
commendable and excellent conservation measures for the scup stock.
However, those measures do not impact the landings during the base
years that define the historical fishery in this regulatory amendment.
This regulatory amendment, as well as the FMP, was prepared jointly
by the Council and the Commission, with assistance provided by the New
England Fishery Management Council. Massachusetts effectively
participated in the development of this regulatory amendment through
two of those bodies: The New England Fishery Management Council, on
which Massachusetts holds a voting seat, and the Commission, which
votes on actions independent of the Council by way of the Summer
Flounder, Scup, and Black Sea Bass Board (Board). A representative of
Massachusetts chairs the Commission's Board. Massachusetts'
participation, or any lack thereof, does not raise any issues with
respect to national standard 4 that have not been addressed above.
Comment: One industry association made a specific request to
eliminate wasteful, harmful fishing practices and encourage
conservation by exempting handlines, scup pots, and weirs from the
quota plan.
Response: The commercial quota is one of the major conservation
measures to achieve the target exploitation rates of the FMP. The FMP
specifically requires that all scup landed for sale in a state,
regardless of where or how it is harvested, count against the quota.
Therefore, there is no provision in the regulations to exempt the catch
taken by any specific gear type from the quota. The commenter did not
elaborate on how such an exemption from the quota by a user group would
discourage wasteful and harmful fishing practices or encourage
conservation. The commenter offered no alternative that would allow the
inshore industry to assist in meeting the reductions in exploitation
mandated by the FMP.
Comment: One industry association and one individual felt this
regulatory amendment discriminated against specific gear types because
the discard deduction does not distinguish between different fishing
methods.
Response: The data presently available do not provide the basis to
manage individual gear types differently. However, the regulatory
amendment does provide a mechanism that will allow future consideration
of gear differences, should such data become available.
Comment: Two individuals expressed concern that the quota would be
caught early in the fishing year and that there would be no fishery for
the summer inshore commercial fishery in Massachusetts.
Response: This regulatory amendment incorporates language to
address specifically this concern. Any overages that occur in the 1997
Winter I allocation, and made prior to implementation of this
regulatory amendment, will be taken off the 1997 Winter II and
subsequent Winter periods. In 1998 and beyond, overages in a period's
allocation will be deducted from that period the following year. In no
scenario will an overage from a winter fishery impact a Summer period
allocation.
Comment: One industry association and one member of the public
commented that this regulatory amendment would financially devastate
coastal communities. The association noted that almost all of its
members derive greater than 50 percent of their income from the
commercial harvest of scup. They feared that between May 1 and May 15
or 20, when trap fishermen and handliners normally start harvesting,
the quota could be filled by draggers issued a Massachusetts Coastal
Access vessel permit. As a result, Massachusetts' fishery would close
before they could fish. This early closure would result in financial
devastation for the coastal communities in which they do business.
Response: Under this rule, the commercial quota for the Summer scup
fishery (May through October) will be managed on a state-by-state
basis. This regulatory amendment requires the full cooperation of the
states in order for the entire FMP to be successful. The states may
implement their Summer allocation in a manner that best suits their
individual fisheries. Massachusetts may choose to implement its quota
using trip limits or other measures to preserve quota for particular
sectors of its industry. Such measures, implemented by the State, would
serve to mitigate the financial impacts of the Summer quota. The
Assistant General Council for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration, when this rule was proposed, that
this rule is not expected to have a significant economic impact on a
substantial number of small entities. That certification, including the
reasons for it, was published in the preamble to the proposed rule (62
FR 5375, February 5, 1997). This regulatory amendment is intended to
preserve the historical pattern of commercial harvest of scup by
seasons, thus reducing the impact on small entities that may otherwise
be felt under a coastwide quota with no method of controlling the rate
of harvest.
Comment: One industry group and one member of the public expressed
concern for participants in the recreational fishery because of the
belief that the group, although large in number, receives very little
quota and will be negatively impacted by this regulatory amendment.
Response: This regulatory amendment has no impact on the
recreational fishery. The recreational sector of the fishery is
currently operating under a target harvest limit that is not revised by
this action. Final specifications for the commercial and recreational
scup fisheries were published on March 14, 1997 (62 FR 12105). Those
specifications allocate 6.0 million lb (2.7 million kg) to the
commercial sector and 1.947 million lb (0.88 million kg) to the
recreational sector. Neither allocation is changed by this regulatory
amendment.
Comment: The MA-CZM commented that the Council should consider
measures other than quota to control fishing (e.g., ban night trawling,
etc.), as Massachusetts did several years ago.
Response: The commercial quota revised by this action is but one of
several measures implemented under
[[Page 27983]]
Amendment 8 to control fishing mortality in the scup fishery. Other
measures include a moratorium on new entrants into the fishery, gear
restrictions, minimum fish size, pot/trap requirements, and a target
harvest level for the recreational fishery. Generally, controls on
fishing gear, such as mesh and escape vent sizes, control the rate of
mortality on sublegal fish, i.e., fish that are not yet vulnerable to
the gear. The quota measures constrain the number of legal sized fish
that may be removed from a stock. These two measures combined are
intended to achieve the goals of the FMP to reduce overfishing on the
scup stock.
Comment: The MA-DMF commented that the mixed species/discard
problem is not resolved with minimum fish and mesh size requirements.
The MA-DMF strongly advocates large season/area closures in offshore
waters, particularly during the fall through spring seasons to reduce
the discard of small scup.
Response: NMFS agrees that such measures may be prudent for this
fishery, and deserve to be seriously considered for implementation in
1998.
Changes From the Proposed Rule
This final rule implements the provisions of the regulatory
amendment by amending 50 CFR part 648, Fisheries of the Northeastern
United States. As a result of the President's Regulatory Reinvention
Initiative, regulatory language for all of the fishery management plans
within the purview of the Council and the New England Fishery
Management Council were consolidated into part 648. In some cases, this
final rule mentions fisheries other than scup 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 Sec. 648.14, paragraph (a)(89), the phrase ``fish for, catch or
retain'' is revised to read ``fish for, catch and retain, or land'' to
clarify the prohibition on landing more than the limit.
Since the measure to grant de minimus status to a state was
disapproved by NMFS, in Sec. 648.120, paragraphs (b)(2) through (b)(8)
are redesignated as (b)(4) through (b)(10) and proposed paragraphs
(b)(4) and (e) are removed from the regulations.
The paragraph specifying states' shares in proposed
Sec. 648.120(d)(7) is corrected to read ``(d)(3),'' and the requirement
that the Council and Commission recommend to the Regional Administrator
that the seasonal allocations in paragraph (d)(1) be revised as a
result of changes in landings data available from the states for the
base years 1983-92, is added.
Proposed Sec. 648.120(f) is redesignated as Sec. 648.120(e).
Classification
This rule will enhance the efficiency of the Fishery Management
Plan for the Summer Flounder, Scup, and Black Sea Bass Fisheries, and
offer benefits in implementing the commercial quota provisions of this
joint plan by redistributing the quota in the manner already approved
by the Commission. In order to realize these benefits, this rule must
be effective as close as possible to May 1, the start of the 1997
Summer period. Therefore, there is good cause under 5 U.S.C. 553(d)(3)
not to delay for 30 days the effective date of these regulations but to
make them effective upon the date of filing for public inspection at
the Office of the Federal Register.
The Regional Administrator determined that this regulatory
amendment is necessary for the conservation and management of the scup
fishery and that it is consistent with the Magnuson-Stevens Act and
other applicable laws.
This final rule has been determined to be not significant for the
purposes of E.O. 12866.
Notwithstanding any other provision of the law, no person is
required to respond to nor shall any 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 a collection-of-information requirement subject
to the PRA. The state request to transfer quota has been approved by
OMB under control number 0648-0202 and is estimated to average 1 hour
per response. The estimated response time includes the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden
estimate, or any other aspect of the collection of information,
including suggestions for reducing the burden, to NMFS and OMB (see
ADDRESSES).
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, when this rule was proposed, that
the management measures contained in this regulatory amendment will not
have a significant economic impact on a substantial number of small
entities. The reasons for this certification are contained in the
certification, which was published as part of the preamble to the
proposed rule (62 FR 5375, February 5, 1997) and are not repeated here.
NMFS received several comments from representatives of the
Massachusetts inshore fishery regarding the economic impacts of this
rulemaking, but none specifically addressing this certification. These
comments were addressed in the Comments/Response section of this final
rule. The commenters noted primarily that many participants in the
inshore segment of the Massachusetts fishery derive a significant
portion of their income from the harvest of scup during the Summer
period. Other comments stressed that many of the landings from this
segment of the fishery are not represented in the scup landings
database. The commenters have come forward with concerns that can not
be confirmed by the scup landings database. Without specific data on
the level of fishing historically undertaken by the inshore segment of
the commercial scup fishery, it is impossible to analyze the economic
impacts on the inshore Massachusetts fishery versus the fishery as a
whole. If the inshore fishery is taken as a distinct universe of
participants for the purpose of determining impacts under RFA, it is
conceivable that this action may meet the criteria for significant
impact, as the commenters claim. However, NMFS cannot confirm that
claim because data are lacking for that segment of the fishery. The
comments did not provide any information changing the basis for 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: May 16, 1997.
Gary Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.4, paragraph (b) is revised to read as follows:
[[Page 27984]]
Sec. 648.4 Vessel and individual commercial permits.
* * * * *
(b) Permit conditions. Any person who applies for a fishing 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 restrictive requirement. Owners and operators of vessels fishing
under the terms of a summer flounder moratorium, scup moratorium, or
black sea bass moratorium permit must also agree not to land summer
flounder, scup, or black sea bass, respectively, in any state after
NMFS has published a notification in the Federal Register stating that
the commercial quota for that state or period has been harvested and
that no commercial quota is available for the respective species. A
state not receiving an allocation of summer flounder, scup, or black
sea bass, either directly or through a coastwide allocation, is deemed
to have no commercial quota available. 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 operators 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 Administrator allows an
individual to comply with the less restrictive state minimum size
requirement, as long as fishing is conducted exclusively within state
waters. If the commercial black sea bass quota for a period is
harvested and the coast is closed to the possession of black sea bass
north of 35 deg.15.3' N. lat., any vessel owners that hold valid
commercial permits for both the black sea bass and the NMFS Southeast
Region Snapper-Grouper fisheries may surrender their moratorium Black
Sea Bass permit by certified mail addressed to the Regional
Administrator and fish pursuant to their Snapper-Grouper permit, as
long as fishing is conducted exclusively in waters, and landings are
made, south of 35 deg.15.3' N. lat. A moratorium permit for the black
sea bass fishery that is voluntarily relinquished or surrendered will
be reissued upon the receipt of the vessel owner's written request
after a minimum period of 6 months from the date of cancellation.
* * * * *
3. In Sec. 648.14, paragraphs (a)(89) through (a)(101) are
redesignated as (a)(90) through (a)(102), respectively, and a new
paragraph (a)(89) is added to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(89) Fish for, catch and retain, or land scup in or from the EEZ
north of 35 deg.15.3' N. lat. in excess of the landing limit
established pursuant to Sec. 648.120 (b)(2) and (b)(3).
* * * * *
4. In Sec. 648.120, paragraph (b)(1) is revised, paragraphs (b)(2)
through (b)(8) are redesignated as paragraphs (b)(4) through (b)(10),
respectively, new paragraphs (b)(2) and (b)(3) are added, paragraphs
(c) and (d) are revised, and paragraph (e) is added to read as follows:
Sec. 648.120 Catch quotas and other restrictions.
* * * * *
(b) * * *
(1) The commercial quota for each of the three periods specified in
paragraph (d)(1) of this section, to be set from a range of 0 to the
maximum allowed to achieve the specified exploitation rate. The
commercial quota will be established by estimating the annual total
allowable catch (TAC), allocating it into the three periods, and
deducting the discard estimates for each period.
(2) Landing limits for the Winter I and Winter II periods.
(3) Percent of landings attained at which the landing limit for the
Winter I period will be reduced.
* * * * *
(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 Administrator
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 Administrator
shall review these recommendations and any recommendations of the
Commission. After such review, NMFS will publish a proposed rule in the
Federal Register by October 15 to implement a commercial quota,
specifying the amount of quota allocated to each of the three periods,
landing limits for the Winter I and Winter II periods, the percentage
of landings attained during the Winter I fishery at which the landing
limits will be reduced, a recreational harvest limit and additional
management measures for the commercial fishery. NMFS will publish a
proposed rule in the Federal Register by February 15 to implement
additional management measures for the recreational fishery, if the
Regional Administrator determines that such measures are necessary to
assure that the specified exploitation rate will not be exceeded. After
considering public comment, NMFS will publish a final rule in the
Federal Register to implement the annual measures.
(d) Distribution of Commercial Quota. (1) The annual commercial
quota will be allocated into three periods, based on the following
percentages:
------------------------------------------------------------------------
Period Percent
------------------------------------------------------------------------
Winter I--January-April...................................... 45.11
Summer-May-October........................................... 38.95
Winter II--November-December................................. 15.94
------------------------------------------------------------------------
(2) The Winter I and Winter II commercial quotas will each be
distributed to the coastal states from Maine through North Carolina on
a coastwide basis.
(3) The Summer commercial quota will be allocated to the coastal
states from Maine through North Carolina, based upon the following
percentages:
Summer Period (May-October) Commercial Quota Shares
------------------------------------------------------------------------
Share
State (percent)
------------------------------------------------------------------------
Maine................................................... 0.13042
New Hampshire........................................... 0.00004
[[Page 27985]]
Massachusetts........................................... 15.49120
Rhode Island............................................ 60.56589
Connecticut............................................. 3.39884
New York................................................ 17.05295
New Jersey.............................................. 3.14307
Delaware................................................ 0.00000
Maryland................................................ 0.01286
Virginia................................................ 0.17789
North Carolina.......................................... 0.02690
Total................................................... 100.00000
------------------------------------------------------------------------
(4) All scup landed for sale in any state during either Winter I or
Winter II shall be applied against the coastwide commercial quota for
that period, regardless of where the scup were harvested. All scup
landed for sale in a state during the Summer period shall be applied
against that state's summer commercial quota, regardless of where the
scup were harvested.
(5) All scup landed for sale in any state during the period January
1, 1997, through April 30, 1997, shall be applied against the coastwide
commercial quota for the 1997 Winter I period, regardless of where the
scup were harvested. Any landings during that time in excess of the
1997 Winter I commercial quota will be subtracted from the 1997 Winter
II period's allocation. Any overage beyond the 1997 Winter II
allocation will be deducted from subsequent winter periods.
(6) Beginning in 1997, any overages of the commercial quota landed
in any state during the Summer period will be deducted from that
state's Summer period quota for the following year. Beginning in 1998,
any overages of the commercial quota landed in any Winter period will
be subtracted from the period's allocation for the following year.
(7) Based upon any changes in the landings data available from the
states for the base years 1983-92, the Commission and the Council may
recommend to the Regional Administrator that the states' shares
specified in paragraph (d)(3) of this section and the period
allocations specified in paragraph (d)(1) of this section be revised.
The Council's and the Commission's recommendation must include
supporting documentation, as appropriate, concerning the environmental
and economic impacts of the recommendation. The Regional Administrator
shall review the recommendation of the Commission and the Council.
After such review, NMFS will publish a proposed rule in the Federal
Register to implement a revision in the state shares. After considering
public comment, NMFS will publish a final rule in the Federal Register
to implement the changes in allocation.
(e) Quota transfers and combinations. Any state implementing a
state commercial quota for scup may request approval from the Regional
Administrator to transfer part or all of its Summer period quota to one
or more states. Two or more states implementing a state commercial
quota for scup may request approval from the Regional Administrator to
combine their quotas, or part of their quotas, into an overall regional
quota. Requests for transfer or combination of commercial quotas for
scup must be made by individual or joint letter(s) signed by the
principal state official with marine fishery management responsibility
and expertise, or his or her previously named designee, for each state
involved. The letter(s) must certify that all pertinent state
requirements have been met and identify the states involved and the
amount of quota to be transferred or combined.
(1) Within 10 working days following the receipt of the letter(s)
from the states involved, the Regional Administrator shall notify the
appropriate state officials of the disposition of the request. In
evaluating requests to transfer a quota or combine quotas, the Regional
Administrator shall consider whether:
(i) The transfer or combination would preclude the overall Summer
period quota from being fully harvested.
(ii) The transfer addresses an unforeseen variation or contingency
in the fishery.
(iii) The transfer is consistent with the objectives of the Summer
Flounder, Scup, and Black Sea Bass FMP and the Magnuson-Stevens Act.
(2) The transfer of quota or the combination of quotas will be
valid only for the Summer period for which the request was made and
will be effective upon the filing by NMFS of a notification of approval
of the quota transfer or combination with the Office of the Federal
Register.
(3) A state may not submit a request to transfer quota or combine
quotas if a request to which it is party is pending before the Regional
Administrator. A state may submit a new request when it receives notice
that the Regional Administrator has disapproved the previous request or
when notification of approval of the quota transfer or combination has
been filed at the Office of the Federal Register.
(4) If there is a quota overage among states involved in the
combination of quotas at the end of the Summer period, the overage will
be deducted from the following Summer period's quota for each of the
states involved in the combined quota. The deduction will be
proportional, based on each state's relative share of the combined
quota for the previous Summer period. A transfer of quota or
combination of quotas does not alter any state's percentage share of
the overall Summer period quota specified in paragraph (d) of this
section.
5. Section 648.121 is revised to read as follows:
Sec. 648.121 Closures.
(a) Winter closures. The Regional Administrator will monitor the
harvest of commercial quota for each Winter period based on dealer
reports, state data, and other available information and shall
determine the date when the commercial quota for a Winter period will
be harvested. NMFS shall close the EEZ to fishing for scup by
commercial vessels for the remainder of the indicated period by
publishing notification in the Federal Register advising that,
effective upon a specific date, the commercial quota for that period
has been harvested, and notifying vessel and dealer permit holders that
no commercial quota is available for landing scup for the remainder of
the period.
(b) Summer closure. The Regional Administrator will monitor the
Summer period state commercial quota based on dealer reports, state
data, and other available information, and shall determine the date
when a state's commercial quota will be harvested. NMFS shall publish
notification in the Federal Register advising a state that, effective
upon a specific date, its Summer period commercial quota has been
harvested and notifying vessel and dealer permit holders that no Summer
period commercial quota is available for landing scup in that state for
the remainder of the period.
[FR Doc. 97-13504 Filed 5-20-97; 8:45 am]
BILLING CODE 3510-22-P