[Federal Register Volume 69, Number 60 (Monday, March 29, 2004)]
[Rules and Regulations]
[Pages 16175-16179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6971]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 040113012-4093-02; I.D. 121903D]
RIN 0648-AR62


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: Final rule for summer flounder, scup, and black sea bass 
fisheries.

-----------------------------------------------------------------------

SUMMARY: NMFS issues a final rule implementing 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: This rule is effective April 28, 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. The Final 
Regulatory Flexibility Analysis (FRFA) consists of the IRFA, public 
comments and responses, and the summary of impacts and alternatives 
contained in this final rule. Copies of the small entity compliance 
guide are

[[Page 16176]]

available from Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930.

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 geographic 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.
    NMFS published a proposed rule (69 FR 3300, January 23, 2004) to 
implement 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 represent 
fishing mortality not accounted for by landings that would be recorded 
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. 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 2004 
annual quota specifications (69 FR 2074, January 14, 2004) 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 allows for the transfer at sea of scup between 
commercial fishing vessels, subject to certain requirements intended 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 may only occur between vessels with Federal scup 
permits; transfers may 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 
may occur in the Winter I or Winter II periods only; only one transfer 
will 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 must include the entire codend, with all its contents; 
only scup and its normal bycatch may be transferred; only scup may be 
retained by the receiving vessel; while fishing for scup, all other 
nets must be stored in accordance with Sec.  648.23(b); and the 
donating and receiving vessels must 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 (e.g., 
fuel) 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 
measures in the final rule should 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.
    This final rule implements 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 only 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 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]3'0 W. long.; 37[deg]50' N. lat., 
75[deg]00' W. long; and 35[deg]30' N. lat., 75[deg]00' W. long. 
Further, this final rule modifies the Council's recommendations that 
the transfer include the entire codend, and that only scup and its 
normal bycatch could be transferred. This rule requires 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, the entire codend, with all its 
contents, must 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

    This final rule also clarifies the circumstances under which a 
vessel

[[Page 16177]]

must operate consistent with the specified mesh size restrictions for 
otter trawl vessels that possess scup. This final rule modifies 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 must 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. 
However, the regulations are silent regarding the reallocation of RSA 
quota from approved projects that are unable to utilize the entire 
amount of their RSA allocation. 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 is 
authorized to restore the unutilized portion to its respective 
commercial and recreational fisheries. In order to clarify the 
circumstances under which the Regional Administrator must reallocate 
unutilized RSA quota, this rule modifies the RSA provisions that appear 
in the Atlantic mackerel, squid, and butterfish regulations. Therefore, 
this final rule modifies current regulations to indicate that, if an 
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 
publication of a notice in the Federal Register in compliance with the 
Administrative Procedure Act, 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 will 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 of this measure is to ensure that unused 
quota be returned to the fishery, to the extent possible.

Comments and Responses

    Only one comment on the proposed rule was received prior to the end 
of the comment period.
    Comment: The commenter expressed general support for environmental 
reforms, marine sanctuaries, and improved enforcement of fishery 
regulations. The commenter suggested that the TAC be reduced for all 
quota's by 50 percent and by 10 percent in each subsequent year 
thereafter. The commenter also suggested that the commercial interests 
not sit on the Councils. The commenter did not support the use of 
research quotas, and stated researchers were taking too many fish.
    Response: This final rule is designed to provide for the fair and 
efficient use of the Federal scup quotas. While NMFS acknowledges the 
importance of the issues raised by the commenter, they are outside the 
scope of this rulemaking.
    The commenter gave no specific rationale for her suggestion that 
the quotas be reduced. The reasons presented by the Council and NMFS 
for implementing this final rule are discussed in the preambles to both 
the proposed and final rules, and are sufficiently analyzed within the 
Framework 4 documents. Basically, this final rule is designed to reduce 
scup mortality and enhance stock rebuilding. This final rule was 
developed based on the best data available at the time, in accordance 
with the process established by the Magnuson-Stevens Fishery 
Conservation and Management Act. There is no known scientific basis for 
reducing the quotas as suggested by the commenter. Also, the research 
quotas establish a unique and equitable mechanism to provide funding 
for fisheries research while not overfishing the stocks.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Included in this final rule is the Final Regulatory Flexibility 
Analysis (FRFA), prepared pursuant to 5 U.S.C. 604(a). The FRFA 
incorporates the IRFA, the comments and responses to the proposed rule, 
and the analyses completed to support the action. A copy of the IRFA is 
available from the Council (see ADDRESSES). The preamble to the 
proposed rule included a detailed summary of the analyses contained in 
the IRFA and that discussion is not repeated here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the legal basis and reasons for the action, and 
its objectives, can be found in the preamble to the proposed rule (69 
FR 3300, January 23, 2004) and is not repeated here.

Summary of Significant Issues Raised in Public Comments

    One comment was received on the proposed rule, but the comment did 
not specifically refer to the IRFA or the economic impacts of the rule. 
The commenter was not supportive of the proposed measures, but offered 
no rationale for making changes. No changes to the proposed rule were 
required to be made as a result of public comments. For a summary of 
the comment, refer to the section above entitled ``Comments and 
Responses.

Description and Estimate of Number of Small Entities to Which the Final 
Rule Will Apply

    Fishing vessels issued Federal scup moratorium permits represent 
the universe of small entities potentially affected by this action. 
Data from the Northeast permit application database show that 878 
commercial vessels held scup moratorium permits in 2001. Since all 
permit holders may not actually target scup, the more immediate impact 
of the action will be derived by the subset of permit holders actively 
participating in this fishery that choose to take advantage of the 
opportunity to transfer scup at sea.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    There are no new recordkeeping or reporting requirements proposed 
in this final rule.

Description of the Steps Taken to Minimize Economic Impact on Small 
Entities

    All vessels that would be impacted by this final rulemaking are 
considered to be small entities (i.e., commercial fishing entities with 
less than $3.5 million in gross receipts); therefore, there would be no 
disproportionate impacts between large and small entities.
    The purpose of this framework is to reduce discards and improve 
efficiency in the scup fishery by allowing for the

[[Page 16178]]

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 will 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 reduction of discards realized 
through the ability to transfer may not offset the level of increased 
discards that may occur during a longer closure. However, scup discards 
are expected to be lower during a closure of the directed scup fishery 
than before the fishery closes, 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).
    Section 212 of the Small Business Regulatory Enforcement and 
Fairness Act of 1996 states that, for each rule or group of related 
rules for which an agency is required to prepare a FRFA, the agency 
shall publish one or more guides to assist small entities in complying 
with the rule, and shall designate such publications as ``small entity 
compliance guides.'' The agency shall explain the actions a small 
entity is required to take to comply with a rule or group of rules. As 
part of this rulemaking process, a small entity compliance guide will 
be sent to all holders of scup moratorium vessel permits. In addition, 
copies of this final rule and guide (i.e., permit holder letter) are 
available from NMFS (see ADDRESSES) and at the following web site: 
http://www.nero.noaa.gov/.

    Dated: March 23, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons stated in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.6, paragraph (a)(1) is amended 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).
* * * * *

0
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 two 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, the 
entire codend, with all its contents, is transferred to the receiving 
vessel;
    (viii) Only scup in an amount not to exceed the possession limit 
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.

0
4. In Sec.  648.14, new paragraph (k)(13) is added to read as follows:


Sec.  648.14  Prohibitions.

    (k) * * *
    (13) Transfer scup at sea, or attempt to transfer at sea to any 
vessel, any scup taken from the EEZ, unless in compliance with the 
provisions of Sec.  648.13(i).
* * * * *

0
5. In Sec.  648.21, paragraph (g)(5) is revised to read as follows:

[[Page 16179]]

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 unallocated or unused 
amount of research quota to the respective commercial and recreational 
fisheries by publication of a notice in the Federal Register in 
compliance with the Administrative Procedure Act, provided:
    (i) The reallocation of the unallocated 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 for which the 
research quota is specified; and
    (ii) Any reallocation of unallocated or 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.
* * * * *

0
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. 04-6971 Filed 3-26-04; 8:45 am]
BILLING CODE 3510-22-S