[Federal Register Volume 62, Number 232 (Wednesday, December 3, 1997)]
[Rules and Regulations]
[Pages 63872-63876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31708]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 970908229-7277-02; 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: Final rule.

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SUMMARY: NMFS issues this final rule to implement the approved measures 
contained in Amendment 10 to the Fishery Management Plan for the Summer 
Flounder, Scup, and Black Sea Bass Fisheries (FMP). Approved measures 
of Amendment 10 include a continuation of the moratorium for commercial 
vessels; minimum mesh-size requirements throughout the body, extension, 
and codend of trawl nets for

[[Page 63873]]

the directed summer flounder fishery; removal of the requirement that a 
vessel land summer flounder during a 52-week period in order to retain 
a moratorium permit; and a prohibition of the transfer of summer 
flounder at sea. This action is intended to enhance the rebuilding of 
the summer flounder resource in accordance with the objectives of the 
FMP.

DATES: All measures are effective on January 1, 1998, except that the 
baseline date for measuring vessel upgrades in 
Sec. 648.4(a)(3)(i)(C)(1) and (2) is effective January 2, 1998 and the 
gear restrictions in Sec. 648.104(a)(1) are effective June 3, 1998.

ADDRESSES: 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: Richard A. Pearson, Fishery Policy 
Analyst, 978-281-9279.

SUPPLEMENTARY INFORMATION:

Background

    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), and the proposed rule to implement Amendment 10 was published 
in the Federal Register on September 19, 1997 (62 FR 49195). The notice 
of availability and the proposed rule solicited public comments through 
November 3, 1997. All comments received by the end of the comment 
period, whether specifically directed to Amendment 10 or to the 
proposed rule, were considered in the approval decision on Amendment 
10.
    Amendment 10 proposed a number of changes to the summer flounder 
regulations. Details concerning the development of Amendment 10 were 
provided in the notice of proposed rulemaking and are not repeated 
here.
    NMFS, on behalf of the Secretary of Commerce, has approved the 
measures that (1) modify the commercial minimum mesh size, (2) continue 
the moratorium on entry of additional commercial vessels, (3) remove 
the landing requirements applicable to permit retention, (4) modify the 
vessel replacement criteria, (5) 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 (6) 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 a compliance criterion, this measure would require states to 
document all summer flounder commercial landings in their state that 
are not otherwise included in the Federal monitoring of permit holders. 
This management measure is not part of the Federal regulatory process 
and is, therefore, not detailed in this rule. Details of this measure 
are described in Amendment 10, which is available from the Council (see 
ADDRESSES).
    In addition, the Council re-evaluated 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 systems, 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 that the current system allows states the most flexibility in 
managing their quotas by implementing state subquotas and trip limits.

Disapproved Measure

    After a 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 appeared 
inconsistent with other applicable law. This measure would require an 
annual examination of state landings to determine whether landings in 
that state during the preceding year for which data are available were 
less than 0.1 percent of the overall annual quota. This determination 
was to be based on landings for the last preceding year for which data 
are available. If a state met the 0.1 percent criterion, it would be 
granted de minimus status. This provision is intended to provide a 
small bycatch fishery in a state where summer flounder would otherwise 
be discarded. 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 would render 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) would not allow for an accurate calculation of 
qualification. 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. The de minimus measure would 
impose an administrative burden or cost to make this annual 
determination, without conferring any demonstrable administrative or 
conservation benefit. This contravenes the requirements of national 
standard 7. It is unclear whether a de minimus state must close its 
state fishery when its quota is harvested.
    For the reasons stated above, this measure would impose an 
administrative burden or cost to make this determination, without 
conferring any demonstrable administrative benefit. This contravenes 
the requirements of national standard 7. Further, the failure of a 
state to close its fishery when its quota is harvested would result in 
overfishing and would render the measure inconsistent with national 
standard 1. As a result of this review, NMFS has disapproved the de 
minimus measure.

Comments and Responses

    Two comments on Amendment 10 were received. One comment was 
received from the North Carolina Division of Marine Fisheries (NCDMF) 
and another from a member of the fishing industry.
    Comment 1: The NCDMF wrote to support all of the provisions in 
Amendment 10, including the state-by-state commercial quota allocation 
system, which, according to the comment, allows states to manage their 
fisheries in accordance with historical management practices such as 
trip limits, bycatch limits, and seasonal

[[Page 63874]]

closures. Although supportive of Amendment 10, NCDMF suggested that the 
revised minimum mesh-size requirement in the amendment should be 
implemented immediately upon approval because mesh of that size is 
available. NCDMF notes that a large portion of the annual summer 
flounder quota is taken during the first 6 months of the season, and 
delayed implementation of the measure will negate the desired 
conservation effect for the 1998 fishery.
    Response: Amendment 10 specified that the Council would determine 
the date of effectiveness of the revised minimum mesh requirement based 
upon an assessment of the availability of net construction materials, 
which would help to alleviate any localized shortages of twine that 
might otherwise occur. The Council found that mesh is not available on 
a coastwide basis and recommended the 6-month delay. NMFS concurs.
    Comment 2: A member of the fishing industry indicated 
dissatisfaction with the minimum mesh-size requirements of Amendment 
10. The commenter wrote that the mesh-size requirements will inflict 
financial hardship on day boat trawlers of western Long Island, New 
York, and northern New Jersey because they will have to purchase new 
nets to fish for scup and black sea bass, rather than just changing 
codends to fish for these species as they currently do. The commenter 
disputed the justification given in Amendment 10 for requiring 5.5-inch 
(14.0-cm) mesh in the body, extension, and codend of summer flounder 
trawl nets by stating that the practice of constricting the codend of 
summer flounder nets to circumvent the minimum mesh-size regulations is 
not a problem. Also, the commenter expressed concern that if Amendment 
10 is adopted, summer flounder will be the only species that requires 
regulated mesh in areas of the net other than the codend. Finally, the 
commenter was opposed to the fact that the minimum mesh-size 
regulations are not applicable to vessels in the summer flounder small-
mesh exemption program.
    Response: Current scup and black sea bass minimum mesh-size 
regulations apply only throughout the codend of the net. However, the 
black sea bass regulations allow the Council, in future years, to 
require minimum mesh size to be applied throughout the entire net. 
Also, it is not clear that the requirement will necessarily result in a 
need to purchase new nets to fish for scup and black sea bass. A fisher 
may still use the same net, albeit with a 5.5-inch (14.0-cm) mesh 
extension and body, to fish for these two species by changing only the 
codend to conform with the appropriate regulations. The reason for the 
change in the mesh regulations is that the Council is concerned about 
the ``choking off'' or the constriction of codends in trawl nets in the 
summer flounder fishery. The Council was concerned that continued poor 
compliance with mesh-size regulations would result in higher fishing 
mortality rates and in a decreased rate of stock recovery for summer 
flounder. Applying the minimum mesh-size throughout the codend, 
extension, and body of the net will eliminate this problem.
    Summer flounder is not the only species where minimum mesh- size 
regulations apply to portions of the net other than the codend. There 
is ample precedence for this requirement. Most notably, the Northeast 
multispecies regulations require that vessels fishing under a 
multispecies day-at-sea use 6-inch (15.2- cm) square or diamond mesh 
throughout the entire net.
    The minimum mesh-size requirements do not apply to vessels issued a 
summer flounder exemption permit, and fishing from November 1 to April 
30 in the ``exemption area'' because the exemption is designed to allow 
vessels to retain a bycatch of summer flounder while operating in other 
small-mesh fisheries. The exemption allows for the prosecution of a 
traditional small- mesh fishery while minimizing discards of summer 
flounder. The existence of the exemption program is re-evaluated 
annually after a review of sea sampling data, and re-authorized if 
appropriate.

Changes From the Proposed Rule

    NMFS notes that the Council recommended that May 13, 1997, be the 
baseline date for measuring vessel upgrades at the time of replacement. 
However, the baseline date was not specified when the Council held 
public hearings on Amendment 10, although it is a necessary adjunct 
required for administration of the replacement upgrade provision. 
Therefore, in order for all potentially affected fishery participants 
to have an equal notice of the baseline date, NMFS noted in the 
proposed rule its intent to link the baseline date to the rulemaking. 
However, the proposed rule was inconsistent in its description of the 
date proposed. In one section it proposed to use September 19, 1997-- 
the date the proposed rule was published. In another, it proposed to 
use the date 30 days following publication of the final rule. NMFS 
received no comments on this matter. Therefore, this final rule 
establishes January 2, 1998 as the baseline, because, as a general 
matter, rules are to have prospective effect and some members of 
industry may have relied on that date rather than September 19, 1997.
    In Sec. 648.4, paragraph (a)(3)(i)(C)(3) is added, which indicates 
that a vessel's horsepower, length, gross registered tonnage (GRT), and 
net tonnage (NT) may be increased through replacement only once. If 
length, GRT, or NT is increased, an increase in the other two 
specifications must be performed at the same time, and this type of 
increase may be done separately from a horsepower increase. This 
provision is contained in Amendment 10, but was inadvertently omitted 
from the proposed rule. As such, a prior notice and opportunity for 
comment was provided through the notice of availability for Amendment 
10. It has been added to this final rule to reflect the Council's 
intent.

Classification

    This final 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 final rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities as follows:

    The final rule implements Amendment 10 by revising a number of 
the regulations implementing the FMP and its amendments and by 
adding a number of new regulations. No public comments were received 
about the Council's economic analysis for Amendment 10 as it 
pertains to Regulatory Flexibility Act nor the certification made by 
the Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce, that this rule would not have a significant 
economic impact on a substantial number of small entities, as 
mentioned in the proposed rule.
    The final rule modifies the commercial minimum mesh size 
requirement, continues the moratorium on entry of additional 
commercial vessels, modifies the vessel replacement criteria, 
removes provisions that pertain to the expiration of the moratorium 
permit, and prohibits 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 impacts 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) are 
impacted by this rule. However, the compliance costs associated with 
the measure are not

[[Page 63875]]

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 (e.g., modification of 
vessel replacement criteria and prohibition of transfer of summer 
flounder at sea) 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 new 
measures would result in no significant economic impacts on small 
entities. Additionally, 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. Meanwhile, a 
qualitative examination of the effects of the extension, 
indefinitely, of the moratorium on new vessels and maintaining the 
state-by-state allocation system for the coastwide quota for the 
commercial fishery, indicates that these measures will not result in 
a significant economic impact on a substantial number of small 
entities. These measures should not cause more than 2 percent of the 
vessels or dealers to cease business operations, result in a loss of 
5 percent or more of ex-vessel revenues for 20 percent or more of 
the participating vessels, nor change compliance costs. If the 
moratorium was allowed to expire then it's conceivable that enough 
new vessels would enter the fishery, so that a significant number of 
vessels already in the fishery would incur a loss of 5 percent or 
more in ex-vessel revenues. Similarly, if the state-by-state 
allocation of the commercial quota was not continued, then the 
states might lose enough flexibility so that some vessels would gain 
in ex-vessel revenues, but a substantial number of small entities 
might experience a significant loss in ex-vessel revenues.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: November 26, 1997.

Rolland Schmitten,
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 (a)(3)(i)(B)(2) is removed and 
reserved, 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 January 2, 1998.
    (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 January 2, 1998.
    (3) A vessel's horsepower may be increased through replacement only 
once. A vessel's length, GRT, and NT may be increased through 
replacement only once. If any of these specifications is increased, any 
increase in the other two must be performed at the same time. This type 
of increase may be done separately from a horsepower increase.
* * * * *
    (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 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:

[[Page 63876]]

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. 97-31708 Filed 11-28-97; 2:01 pm]
BILLING CODE 3510-22-F