[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