[Federal Register Volume 65, Number 19 (Friday, January 28, 2000)]
[Proposed Rules]
[Pages 4546-4547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1989]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[I.D. 092799B]


Fisheries of the Northeastern United States; Decision on Petition 
for Rulemaking for Seasonal Area Closures, Bycatch Quotas, and Related 
Measures to Reduce Scup Bycatch

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

ACTION:  Notice of finding on petition for rulemaking.

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SUMMARY:  NMFS announces its decision not to undertake the rulemaking 
requested in a petition submitted by the Natural Resources Defense 
Council, the Environmental Defense Fund, the Center for Marine 
Conservation, the National Audubon Society, and the American Oceans 
Campaign (Petitioners). The Petitioners had petitioned NMFS and the 
Mid-Atlantic Fishery Management Council (Council) to implement 
emergency or other interim measures to reduce scup bycatch through 
seasonal area closures and a bycatch quota; monitor the Loligo squid 
fishery through a vessel monitoring system (VMS) and observers; and 
develop new gear designs. The Petitioners requested that these measures 
be put in place, beginning November 1999, to reduce the amount of scup 
caught incidentally in the Loligo squid fishery. The decision to deny 
the petition is based on the inclusion of similar provisions in the 
proposed 2000 specifications for summer flounder, scup, and black sea 
bass, which are published elsewhere in this issue of the Federal 
Register.

FOR FURTHER INFORMATION CONTACT:  Mark R. Millikin, Domestic Fisheries 
Division, NMFS, (301) 713-2341.

SUPPLEMENTARY INFORMATION:  On October 14, 1999 (64 FR 55688), NMFS 
published a notice requesting public comments on an amended petition 
for rulemaking submitted by the Petitioners. The amended petition 
requested that NMFS implement, through emergency or other interim 
action, fishing restrictions in specified areas in 1999, with 
additional measures to be implemented in 2000 and beyond. The 
Petitioners requested measures to reduce the bycatch and associated 
mortality of juvenile scup caught in the small mesh Loligo squid 
fishery. For 1999, the Petitioners requested (1) a closure of the 
Loligo fishery in NMFS Northeast Statistical Area (area) 613 for the 
Winter II (November-December) season, (2) the imposition of a scup 
bycatch quota throughout the Loligo management unit for the Winter II 
season, or (3) both options (1) and (2). The Petitioners also requested 
the immediate implementation of the Council's Summer Flounder 
Monitoring Committee's recommendation to establish areas closed to the 
Loligo squid fishery in areas 537 and 539 during the Winter II season, 
and in areas 616 and 622 during the Winter I (January-April) season.
    In addition, the Petitioners requested that NMFS establish adequate 
enforcement mechanisms and observer coverage for these bycatch-
reduction measures. For instance, if area 613 were closed, the 
Petitioners suggested that NMFS require a VMS in the Loligo fleet. If a 
bycatch quota were implemented, the Petitioners suggested observer 
coverage be required at levels sufficient to ensure observations of a 
statistically significant percentage of Loligo catch. Finally, the 
Petitioners requested that, for 2001, NMFS and the Council oversee the 
development, testing, and implementation of appropriately modified gear 
as an effective and equitable means of reducing scup bycatch.
    At about the same time the Petitioners were raising their concerns, 
the Council was developing annual specifications for the scup fishery. 
The Council's Monitoring Committee recommended extensive area 
restrictions similar to the areas recommended by the Petitioners. While 
the Council accepted the Committee's recommendation for restrictions 
beginning in the year 2000, they created a Scup Working Group comprised 
of some members of the Council, Atlantic States Marine Fisheries 
Commission, and industry to develop sub-areas within the larger 
restricted areas. The Council intended that these sub-areas would be 
restricted to reduce scup bycatch while minimizing the impacts on other 
fisheries. In addition to specifying an annual commercial quota, the 
sub-areas recommended by the Scup Working Group were submitted by the 
Council as part of the proposed 2000 specifications.
    With the development of these restricted areas, the Council 
considered ways to reduce mortality on juvenile scup due to bycatch in 
small-mesh fisheries, including the Loligo fishery. In addition to 
restrictions in the Loligo squid fishery, the recommendation would 
restrict fishing in other fisheries utilizing small mesh, defined as 
less

[[Page 4547]]

than the scup minimum mesh size (4.5-in (11.4-cm) diamond mesh in the 
codend). Those other fisheries target herring, Atlantic mackerel, black 
sea bass, and whiting. The Council also recommended allowing the 
continuation of fisheries that do not exceed a 10-percent scup bycatch. 
Further discussion on the development of the Council alternatives is 
provided to the public through the proposed rule to implement 2000 
specifications for the summer flounder, scup, and black sea bass 
fisheries, published elsewhere in this issue of the Federal Register.
    Given the fact that similar measures for scup are in the proposed 
2000 specifications, NMFS is denying this petition for rulemaking. 
Implementing these controversial measures through emergency or other 
interim Secretarial action would not afford an opportunity for public 
comment prior to implementation. NMFS prefers that they undergo full 
public review and comment, within the context of the annual 
specifications process for scup.
    In the proposed specifications, NMFS is not proposing the selected 
restricted mesh areas recommended by the Council because NMFS considers 
them to be inadequate in size and duration to reduce bycatch and be 
enforceable. However, NMFS is proposing one of the Council's non-
selected alternatives. The areas in the proposed alternative are more 
extensive in both size and time than the Council's recommended areas 
and, thus, more enforceable. The areas are not as extensive, however, 
as those recommended by the Petitioners or the Monitoring Committee. 
The large areas recommended by the Petitioners and Monitoring Committee 
included areas of few scup discards and did not include some areas of 
high scup discards. Additional discussion of the rationale for the 
proposed restricted mesh areas can be found in the proposed 
specifications for the scup fishery published elsewhere in this issue 
of the Federal Register.
    In addition, NMFS believes the implementation of ``adequate 
enforcement mechanisms,'' such as a VMS requirement or a bycatch quota 
monitored by at-sea observers, as requested by the Petitioners, would 
be better handled through the fishery management plan amendment 
process. Further, the Petitioners' request that, for 2001, NMFS and the 
Council oversee the development, testing, and implementation of 
appropriately modified gear as an effective and equitable means of 
reducing scup bycatch is already possible under the Experimental 
Fishery Permit process and therefore does not require additional 
rulemaking. (See also response to Comment 2.)
    The proposed 2000 specifications for scup, summer flounder, and 
black sea bass are being published concurrently in the Federal Register 
with this notice of finding on the petition to enable the Petitioners 
and the public to observe the relationship between these two actions. 
In addition, the public will now have an opportunity to review the 
proposed measures and submit comments that will be considered in the 
establishment of the final specifications.

Comments and Responses

    Five comment letters, including four from commercial fishing 
industry groups and one from the Commonwealth of Massachusetts, 
Division of Marine Fisheries, were received during the comment period 
for this action, which ended on November 15, 1999. All five letters 
supported the petition. Several of the letters contained comments or 
suggestions for management actions that were not within the scope of 
the petition. Only comments relevant to the proposed petition for 
rulemaking that were received by NMFS prior to the close of business on 
November 15, 1999, were considered for this action.
    Comment 1: While supporting adoption of the regulated areas in 
concept, several of the commenters supported alternative areas not 
considered within the petition. In addition, the commenters supported 
complete, seasonal closures (to all gear types) if the seasonal gear 
restrictions were found to be not feasible in terms of enforcement and 
compliance.
    Response: NMFS notes the support for action to reduce the discards 
of scup. NMFS also notes that seasonal closures of specific areas to 
all gear types would be a management alternative beyond the scope of 
this petition.
    Comment 2: Four of the commenters supported gear modifications to 
minimize bycatch as well as impacts on fishermen and industry 
infrastructure. The commenters also supported the use of sea samplers 
(observers) to monitor experimental small-mesh fisheries, the Loligo 
squid fishery, and bycatch quotas.
    Response: NMFS agrees that sea sampling is important, although it 
notes that funding is currently inadequate to support all of the sea 
sampling needs identified. NMFS agrees that gear modifications to 
minimize bycatch, as developed through experimental fisheries, could 
offer another alternative to area restrictions. The Council is working 
with industry members who have volunteered to identify modifications 
that could reduce catch of scup in small-mesh fisheries for squid. In 
addition, the Council is considering a proposal that would allow 
vessels with experimental exempted fishing permits to conduct 
experiments to assess the efficacy of trawl gear modifications to 
reduce discards. This proposal would rely on NMFS-certified sea 
samplers to collect valid data on scup discards in these fisheries.
    Comment 3: Several commenters supported the idea of bycatch quotas 
of scup and experimental fisheries, provided they receive rigorous 
review, as have other experimental fisheries.
    Response: NMFS believes this is an appropriate approach. At its 
August 1999 meeting, the Council voted to initiate a framework action 
to consider quota set-asides for scientific research in the scup and 
other fisheries. Since NMFS has decided not to implement a bycatch 
quota by way of interim action through this petition, the Council would 
need to adopt an appropriate framework as a mechanism to provide a 
bycatch quota for NMFS approval and implementation.

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

    Dated: January 21, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 00-1989 Filed 1-24-00; 4:47 pm]
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