[Federal Register Volume 69, Number 15 (Friday, January 23, 2004)]
[Proposed Rules]
[Pages 3300-3303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1481]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 040113012-4012-01; I.D. 121903D]
RIN 0648-AR62

50 CFR Part 648


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; Framework Adjustment 4

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 proposes measures contained in Framework Adjustment 4 
(Framework 4) to the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan (FMP) that would allow for the transfer at sea of scup 
between commercial fishing vessels, and clarify the circumstances under 
which a vessel must operate with the specified mesh. Regulations 
regarding the establishment and administration of research set-aside 
(RSA) quota would also be amended to clarify how unused RSA quota is to 
be returned to the fishery.

DATES: Comments on this proposed rule must be received by February 9, 
2004.

ADDRESSES: Copies of the Framework 4 document, its Regulatory Impact 
Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), the 
Environmental Assessment (EA), and other supporting documents for the 
framework adjustment are available from Daniel Furlong, Executive 
Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal 
Building, 300 South Street, Dover, DE 19901-6790. The EA/RIR/IRFA is 
also accessible via the Internet at http:/www.nero.nmfs.gov. Written 
comments on the proposed rule should be sent to Patricia A. Kurkul, 
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn 
Drive, Gloucester, MA 01930. Mark the outside of the envelope 
``Comments on Framework 4 (Scup).'' Comments may also be sent via 
facsimile (fax) to (978) 281-9135. Comments will not be accepted if 
submitted via e-mail or the Internet.

FOR FURTHER INFORMATION CONTACT: Paul Perra, Fishery Policy Analyst, 
(978) 281-9153, fax (978) 281-9135, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The summer flounder, scup, and black sea bass fisheries are managed 
cooperatively by the Atlantic States Marine Fisheries Commission 
(Commission) and the Mid-Atlantic Fishery Management Council (Council), 
in consultation with the New England and South Atlantic Fishery 
Management Councils. The management unit for scup (Stenotomus 
chrysops), specified in the FMP, is defined as U.S. waters of the 
Atlantic Ocean from 35[deg]13.3' N. lat. (the latitude of Cape Hatteras 
Lighthouse, Buxton, NC) northward to the U.S./Canada border. The FMP 
and its implementing regulations at 50 CFR part 648, subparts A 
(general provisions), and H (scup) describe the process for specifying 
commercial scup measures that apply in the Exclusive Economic Zone 
(EEZ). The states manage these fisheries within 3 nautical miles of 
their coasts, under the Commission's Interstate Summer Flounder, Scup, 
and Black Sea Bass Fishery Management Plan. The Federal regulations 
govern vessels fishing in the EEZ, as well as vessels possessing a 
Federal fisheries permit, regardless of where they fish.
    The Council initiated Framework 4, pursuant to Sec.  648.127(a), to 
reduce regulatory discards of scup that can occur when vessels catch 
large amounts of scup, which would exceed their trip limits, and must 
discard them. The majority of these discarded scup would die, and thus 
be counted as fishing mortality, rather than landings that would be 
counted under the quota. Framework 4 would allow the commercial scup 
fishery to be more efficient and to better achieve the management 
objectives of the FMP, specifically regarding attainment of optimum 
yield from the scup fishery.
    The commercial scup fishery is managed under a system that 
allocates the annual quota to three periods: Winter I, January-April 
(45.11 percent); Summer, May-October (38.95 percent); and Winter II, 
November-December (15.94 percent). During the Winter periods, the quota 
is monitored on a coastwide basis. During the Summer period, the quota 
is also monitored on a coastwide basis, but the Commission uses a 
state-by-state allocation system to help manage the Federal quota. The 
Federal commercial scup fishery is closed coastwide when the allocation 
for a period is reached. In addition, any overages during a quota 
period are subtracted from that period's allocation for the following 
year. Any quota overages by a state during the Summer period (whether 
or not the total Summer period quota is exceeded) are subtracted

[[Page 3301]]

by the Commission from that state's Summer period share the following 
year. Also, the regulations allow for the rollover of unused quota from 
the Winter I period to the Winter II period within a fishing year (68 
FR 62250, November 3, 2003). The final rule to implement the 2003 
annual quota specifications (68 FR 60, January 2, 2003) established 
possession limits of 15,000 lb (6,804 kg) per trip during Winter I and 
1,500 lb (680 kg) during Winter II, and specified that the Winter I 
possession limit be reduced to 1,000 lb (454 kg) per trip when 80 
percent of the commercial quota allocated to that period is projected 
to be harvested.
    Framework 4 proposes to allow the transfer at sea of scup between 
commercial fishing vessels, subject to certain requirements, to improve 
the enforceability of the transfers and to ensure that they are used to 
respond to occasional unanticipated catches, rather than targeted 
fishing. Any amount of scup less than the possession limit could be 
transferred between two vessels, given the following conditions: 
Transfers could only occur between vessels with Federal scup permits; 
transfers could only occur seaward of a boundary line that is roughly 
20 nm from shore; the donating and receiving vessels must possess gear 
that meets the regulatory requirements at Sec.  648.123(a)(2), (3), and 
(4) for commercial scup fishing gear; transfers could occur in the 
Winter I or Winter II periods only; only one transfer would be allowed 
per fishing trip for the donor vessel; after the donor vessel removes 
only enough scup to attain the scup possession limit, the transfer 
would include the entire codend; only scup and its normal bycatch could 
be transferred; only scup could be retained by the receiving vessel; 
while fishing for scup, all other nets must be stored below deck; and 
the donating and receiving vessels would report the transfer amount on 
the vessel trip report for each vessel.
    Framework 4 was initiated to address discard issues, because otter 
trawl vessels targeting scup occasionally make very large hauls 
consisting almost entirely of scup, which can easily exceed the scup 
possession limit. Currently, when one of these large hauls occurs, most 
scup in the net are dead, and all scup in excess of the possession 
limit must be discarded. Under Framework 4, the contents of a large 
scup haul could be transferred to another federally permitted scup 
vessel under prescribed circumstances. This would convert regulatory 
discards of scup into landings, thus reducing bycatch and improving the 
efficiency of the commercial scup fishery. Both the donor and receiver 
vessels could benefit financially. The donor vessel could benefit by 
selling fish that would otherwise be discarded, and the receiver vessel 
could benefit from obtaining fish while using less resources than under 
a typical fishing operation. It is possible that allowing the transfer 
of scup at sea could result in an earlier closure of the fishery 
because of higher scup retained catch rates. However, discard rates of 
scup are expected to be less during a scup fishery closure, because 
vessels would not be directing on scup. Thus, the proposed measures 
would serve to minimize bycatch and improve efficiency in fleet 
operations.
    It is the Council's intention that the framework adjustment apply 
only to the scup otter trawl fishery, and that the transfer of scup at 
sea would occur only under safe weather and sea conditions, as 
determined by the participants in any such transfer.
    NMFS proposes to implement the conditions on the transfer of scup 
at sea that the Council included in Framework 4, as summarized in this 
preamble. In addition, NMFS has defined a boundary beyond which 
transfers of scup may occur. This boundary is intended to improve 
enforceability of these regulations and to restrict transfers at sea to 
vessels already on the fishing grounds. The proposed boundary line 
begins at 40[deg]50' N. lat., 70[deg]00' W. long., and runs south to 
connect the points at 40[deg]15' N. lat., 73[deg]30' W. long.; 
37[deg]50' N. lat., 75[deg]00' W. long; and 35[deg]30' N. lat., 
75[deg]00' W. long. Further, NMFS proposes to modify the Council's 
recommendations that the transfer include the entire codend, and that 
only scup and its normal bycatch could be transferred by requiring that 
the donor vessel may only remove enough scup from the net to attain the 
scup possession limit for the donor vessel, and that, after removal of 
scup from the net by the donor vessel, only the entire codend, with all 
its contents, could be transferred to the receiving vessel. This is 
intended to allow for retention of scup by the donor vessel up to its 
possession limit, and to improve at-sea enforcement of the proposed 
measures.

Need for Correction/Clarification

    NMFS also proposes to clarify the circumstances under which a 
vessel must operate consistent with the specified mesh size 
restrictions for otter trawl vessels that possess scup. This proposed 
rule would modify current regulations to indicate that no owner or 
operator of an otter trawl vessel that is issued a scup moratorium 
permit may possess 500 lb (226.8 kg) or more of scup from November 1 
through April 30, or 100 lb (45.4.kg) or more of scup from May 1 
through October 31, unless fishing with nets that have a minimum mesh 
size of 4.5-inch (11.4-cm) diamond mesh for no more than 25 continuous 
meshes forward of the terminus of the codend, and with at least 100 
continuous meshes of 5.0-inch (12.7-cm) mesh forward of the 4.5-inch 
(11.4-cm) mesh, and all other nets are stored in accordance with Sec.  
648.23(b). For trawl nets with codends (including an extension) less 
than 125 meshes, the entire trawl net must have a minimum mesh size of 
4.5 inches (11.4-cm) throughout the net. Scup on board these vessels 
would be required to be stored separately and kept readily available 
for inspection.
    Also, current regulations state that unused RSA quota from 
disapproved RSA proposals may be reallocated to the respective 
commercial and recreational fisheries by the Regional Administrator, 
but the regulations are silent regarding the reallocation of RSA quota 
from approved but discontinued projects. Framework 1 to the FMP states 
that, in the event approved proposals do not make use of any or all of 
the set-aside quota for a particular species, the Regional 
Administrator would be authorized to restore the unutilized portion to 
its respective commercial and recreational fisheries. In order to 
clarify the circumstances under which the Regional Administrator shall 
reallocate unutilized RSA quota, NMFS proposes a change to the RSA 
provisions which appear in the Atlantic mackerel, squid, and butterfish 
regulations. Therefore, this proposed rule would modify current 
regulations to indicate that, if a RSA proposal is disapproved, or if 
the Regional Administrator determines that the allocated RSA quota 
cannot be utilized by a project, the Regional Administrator shall 
reallocate the unused amount of RSA quota to the respective commercial 
and recreational fisheries by notice in the Federal Register, provided 
that the reallocation of the unused amount of RSA quota is in accord 
with National Standard 1, and must be available for harvest before the 
end of the fishing year in which the initial RSA allocation was made. 
Any reallocation of unused RSA quota would be consistent with the 
proportional division of quota between the commercial and recreational 
fisheries in the relevant FMP, and allocated to the remaining quota 
periods for the fishing year, proportionally. The intent is to ensure 
that unused quota be returned to the fishery, if possible.

[[Page 3302]]

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA was prepared that describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the reasons why this action is being considered, and the objectives 
of and legal basis for this action are contained at the beginning of 
this preamble. The preamble to this proposed rule also includes 
complete descriptions of the proposed and no action alternatives 
discussed here. There are no new recordkeeping or reporting 
requirements proposed in this rule. There are no relevant Federal rules 
that duplicate, overlap, or conflict with this proposed rule. All 
vessels that would be impacted by this proposed rulemaking are 
considered to be small entities; therefore, there would be no 
disproportionate impacts between large and small entities. A summary of 
the analysis follows:
    The purpose of this framework is to reduce discards and improve 
efficiency in the scup fishery by allowing for the transfer at sea of 
scup between commercial fishing vessels, and clarifying the 
circumstances under which a vessel must operate with the specified 
mesh. Alternative 1 (No Action) would not affect the manner in which 
the commercial fishery operates or the quantity of scup landed in the 
commercial sector. The Preferred Alternative would allow for the 
transfer of scup at sea; both the donor and receiver vessels may 
benefit economically. The owner of the donor vessel may benefit by 
selling fish that would otherwise be discarded to the owner of the 
receiving vessel and the owner of the receiving vessel may benefit from 
acquiring fish obtained from fishing activity of another vessel, thus 
requiring less resources (e.g., less fuel and wear and tear on the net) 
than under a typical fishing operation. It is possible that allowing 
the transfer of scup at sea could result in the scup fishery being 
closed earlier because of higher retained catch rates. This would 
depend on the number of vessels that have large scup catches, and the 
opportunity to conduct transfers. If a scup period were to close sooner 
under the Preferred Alternative, the level of discards during a longer 
closure may not offset the saving of discards realized through the 
ability to transfer. However, scup discards are expected to be lower 
during a closure of the directed scup fishery, because vessels will not 
be directing on scup. Also, it is reasonable to expect that the ability 
to transfer scup would be limited to a somewhat narrow window of time 
and would depend on the proximity of a nearby, permitted scup vessel, 
and how quickly that vessels could retrieve the codend of the donor 
vessel. Large catches of scup in the net die quickly and may sink to a 
point where they are irretrievable or, if held in the codend on board 
the donor vessel for too long, they spoil and become unmarketable. A 
longer closure may also have adverse economic impacts if affected 
fishermen do not have suitable alternative opportunities. However, 
since there are no data available to determine accurately how many 
vessels would participate in the transfer of scup at sea and how much 
scup would be transferred at sea under this alternative, the full 
impact of this alternative on early closures cannot be fully assessed.
    The Council's recommendation on this action was predicated upon the 
need to make a decision to either allow at-sea transfers of scup to 
reduce regulatory discards (the preferred alternative), or to maintain 
the current prohibition on at-sea transfers (the no action 
alternative). Other alternatives to address the larger issues of 
regulatory discards and/or economic efficiency of the fleet were not 
considered to be within the scope of this action (which is a Framework 
Adjustment and therefore of limited scope). The Council did identify 
and discuss additional options to be part of the preferred alternative, 
but these were determined to be either unenforceable (e.g., allowing 
transfers of scup in excess of the possession limit to occur off the 
fishing grounds), cost prohibitive (e.g., requiring vessels to obtain a 
vessel monitoring system prior to participating), or not practicable 
(e.g., requiring participating vessels to contact NMFS personnel prior 
to conducting an at-sea transfer).

List of Subjects in 50 CFR Part 648

    Fishing, Fisheries, Reporting and recordkeeping requirements.

    Dated: January 16, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons stated 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.  648.6, paragraph (a)(1) is revised by adding a new 
final sentence to read as follows:


Sec.  648.6  Dealer/processor permits.

    (a) General. (1) * * * Persons aboard vessels receiving transfers 
of scup at sea from other vessels are deemed not to be dealers, and are 
not required to possess a valid dealer permit under this section, for 
purposes of receiving scup, provided the vessel complies with Sec.  
648.13(2).
* * * * *
    3. In Sec.  648.13, paragraph (i) is added to read as follows:


Sec.  648.13  Transfers at sea.

* * * * *
    (i) Scup. (1) Except as provided in paragraph (i)(2) of this 
section, all persons or vessels issued a Federal scup permit are 
prohibited from transferring, or attempting to transfer, at sea any 
scup to any vessel, and all persons or vessels are prohibited from 
transferring, or attempting to transfer, at sea to any vessel any scup 
while in the EEZ, or any scup taken in or from the EEZ portion of the 
Scup Management Unit.
    (2) The owner or operator of a vessel issued a Federal scup permit 
under Sec.  648.4(a)(6)(i)(A) may transfer at sea scup taken in or from 
the EEZ portion of the Scup Management Unit, provided:
    (i) The transfer occurs between vessels with Federal scup permits;
    (ii) The transfer occurs seaward of a boundary line that begins at 
40[deg]50' N. lat., 70[deg]00' W. long., and runs south to connect 
points at 40[deg]15' N. lat., 73[deg]30' W. long.; 37[deg]50' N. lat., 
75[deg]00' W. long.; and 35[deg]30' N. lat., 75[deg]00' W. long.;
    (iii) The donating and receiving vessels possess gear that meets 
the requirements at Sec.  648.123(a)(2), (3), and (4) for commercial 
scup fishing gear;
    (iv) The transfer occurs in the Winter I or Winter II periods of 
the scup fishing year;
    (v) There is only one transfer per fishing trip for the donor 
vessel;
    (vi) The donor vessel removes only enough scup from the net to 
attain the scup possession limit;
    (vii) After removal of scup from the net by the donor vessel, only 
the entire codend, with all its contents, is transferred to the 
receiving vessel;
    (viii) Only scup are retained by the receiving vessel;
    (ix) While fishing for scup, all other nets are stored in 
accordance with Sec.  648.23(b)(1); and
    (x) The donating and receiving vessels report the transfer amount 
on the vessel trip report for each vessel.
    4. In Sec.  648.14, new paragraph (k)(13) is added to read as 
follows:

[[Page 3303]]

Sec.  648.14  Prohibitions.

* * * * *
    (k) * * *
    (13) Transfer scup at sea, except pursuant to provisions of Sec.  
648.13(i).
* * * * *
    5. In Sec.  648.21, paragraph (g)(5) is revised to read as follows:


Sec.  648.21  Procedures for determining initial annual amounts.

* * * * *
    (g) * * *
    (5) If a proposal is disapproved by the Regional Administrator or 
the NOAA Grants Office, or if the Regional Administrator determines 
that the allocated research quota cannot be utilized by a project, the 
Regional Administrator shall reallocate the disapproved or unused 
amount of research quota to the respective commercial and recreational 
fisheries by notice in the Federal Register, provided:
    (i) The reallocation of the disapproved or unused amount of 
research quota is in accord with National Standard 1, and can be 
available for harvest before the end of the fishing year in which the 
initial allocation was made; and
    (ii) Any reallocation of unused research quota shall be consistent 
with the proportional division of quota between the commercial and 
recreational fisheries in the relevant FMP and allocated to the 
remaining quota periods for the fishing year proportionally.
* * * * *
    6. In Sec.  648.123, paragraph (a)(1) is revised to read as 
follows:


Sec.  648.123  Gear restrictions.

    (a) * * *
    (1) Minimum mesh size. No owner or operator of an otter trawl 
vessel that is issued a scup moratorium permit may possess 500 lb 
(226.8 kg) or more of scup from November 1 through April 30, or 100 lb 
(45.4 kg) or more of scup from May 1 through October 31, unless fishing 
with nets that have a minimum mesh size of 4.5-inch (11.4-cm) diamond 
mesh for no more than 25 continuous meshes forward of the terminus of 
the codend, and with at least 100 continuous meshes of 5.0-inch (12.7-
cm) mesh forward of the 4.5-inch (11.4-cm) mesh, and all other nets are 
stowed in accordance with Sec.  648.23(b)(1). For trawl nets with 
codends (including an extension) less than 125 meshes, the entire trawl 
net must have a minimum mesh size of 4.5 inches (11.4 cm) throughout 
the net. Scup on board these vessels shall be stowed separately and 
kept readily available for inspection. Measurement of nets will be in 
conformity with Sec.  648.80(f)(2)(ii).
* * * * *
[FR Doc. 04-1481 Filed 1-22-04; 8:45 am]
BILLING CODE 3510-22-S