Fisheries of the Northeastern United States; Regulatory Amendment to the Fishery Management Plan for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Commercial Quota Harvested for Delaware and New Hampshire

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 960805216-7111-06; I.D. 121796B]

RIN 0648-AH06

Fisheries of the Northeastern United States; Regulatory Amendment

to the Fishery Management Plan for the Summer Flounder, Scup, and Black

Sea Bass Fisheries; Commercial Quota Harvested for Delaware and New

Hampshire

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule; commercial quota harvest.

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

SUMMARY: NMFS issues this final rule to implement approved measures

contained in a regulatory amendment to the Fishery Management Plan for

the Summer Flounder, Scup, and Black Sea Bass Fisheries (FMP). This

regulatory amendment revises the allocation and management of the

commercial scup quota. As a consequence of this rule, NMFS further

announces that no commercial scup quota is available for the States of

Delaware and New Hampshire for the 1997 Summer period, which ends

October 31, 1997.

EFFECTIVE DATE: May 20, 1997.

ADDRESSES: Copies of the regulatory amendment are available upon

request from David R. Keifer, Executive Director, Mid-Atlantic Fishery

Management Council, Room 2115, Federal Building, 300 South New Street,

Dover, DE 19901.

Comments regarding burden-hour estimates for collection-of-

information requirements contained in this final rule should be sent to

Andrew A. Rosenberg, Ph.D., Regional Administrator, 1 Blackburn Drive,

Gloucester, MA 01930, and to the Office of Information and Regulatory

Affairs, Office of Management and Budget (OMB), Washington, D.C. 20502

(Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy

Analyst, 508-281-9221.

SUPPLEMENTARY INFORMATION: This final rule implements approved measures

contained in the regulatory amendment to the FMP, which was prepared by

the Mid-Atlantic Fishery Management Council (Council) and the Atlantic

States Marine Fisheries Commission (Commission). Background concerning

the development of this regulatory amendment was provided in the notice

of proposed rulemaking (62 FR 5375, February 5, 1997), and is not

repeated here.

This rulemaking revises the manner in which the annual commercial

quota is allocated to the scup fishery. With this revision, the total

annual allowable catch (TAC) for the commercial fishery

[[Page 27979]]

is allocated into two Winter periods: January-April (Winter I) and

November-December (Winter II); and one Summer period: May-October

(Summer). Based on historical landings data, the quota is allocated to

each period as follows: Winter I--45.11 percent; Summer--38.95 percent;

and Winter II--15.94 percent. Discard estimates for each period are

subtracted from the TAC for each period to derive the commercial quota

for each period. The quota for each of the two Winter periods is

allocated on a coastwide basis to the coastal states from Maine to

North Carolina. During these Winter periods, coastwide landings (trip)

limits, recommended by the Council and Commission as part of the annual

fishing measures and implemented by the states, are in effect. This

regulatory amendment specifies that during the 1997 Winter II period,

the landings limit will be 12,000 lb (5,443 kg) for vessels with a

Federal scup moratorium permit. During the Summer period, the quota is

distributed among the coastal states based on the percentage shares

specified in this regulatory amendment. The states are responsible for

the management of their respective quotas.

Disapproved Measure

NMFS announces the disapproval of the de minimus provision

specified in this regulatory amendment because it violates national

standard 7, raises questions of consistency with national standard 1,

and appears to be arbitrary and capricious. This measure would require

an annual examination of state landings to determine if a state should

be granted de minimus status. De minimus is defined as landings in a

state during the Summer period that are less than 0.1 percent of the

overall Summer quota. This determination was to be based on landings

for the last preceding year for which data are available. The de

minimus measure imposes an administrative burden and cost without

conferring any demonstrable administrative or conservation benefit.

Consequently, this provision contravenes the requirements of national

standard 7.

In the preamble to the proposed rule to implement this regulatory

amendment, NMFS noted that the de minimus provision was unclear and

invited comments specific to the operation of this provision. The

Council and the State of Delaware's Division of Fish and Wildlife

submitted comments to interpret the provision. However, the comments

did not address NMFS' concern that it is not clear from the record 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 exploitation rate

reduction goals in the FMP, since vessels without Federal permits

fishing exclusively in that state's waters could continue to land scup.

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 scup much larger 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 landing 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.

Last, the de minimus provision submitted by the Council and

Delaware included measures that went beyond the scope of measures taken

to public hearing. For instance, the Council suggested prohibiting scup

landings by any federally permitted vessels in a state granted de

minimus status. To implement this provision at this point would be

inconsistent with the Administrative Procedure Act because the public

has had no opportunity to participate in this measure's development or

to comment on it. Also, note that Table 2 in this final rule lists the

states and their percent shares for the Summer period commercial quota.

These percent shares are the same as were listed in the proposed rule.

However, had the de minimus provision been approved, these percent

shares would have changed.

Approved Measures: Implementation of the Revised Quota System

A coastwide commercial quota for scup was implemented on January 1,

1997. Final specifications, effective March 11, 1997 (62 FR 12105,

March 14, 1997), apportioned a quota of 6.0 million lb (2.7 million kg)

to the commercial scup fishery. This quota was derived by subtracting

an estimated 1997 discard of 1.103 million lb (0.5 million kg) from the

7.103 million lb (3.2 million kg) allocated to the commercial sector.

This regulatory amendment specifies that any quota harvested between

January 1, 1997, and April 30, 1997, will count against the Winter I

allocation. Any landings in excess of the 1997 Winter I allocation will

be deducted from the allocation for the 1997 Winter II period. Landings

in excess of the total of both 1997 Winter periods will be deducted

from 1998 Winter periods. This deduction would not affect the Summer

allocation in either year. However, current data show approximately

800,000 lb (362,874 kg) have been landed through March 22, 1997.

Therefore, an overage of the Winter I allocation, specified in the

table below, would be unlikely. As such, no adjustment is necessary to

the Winter II allocation. However, if additional data become available

that show landings during this time are in excess of the Winter I

allocation, an adjustment will be made and the public informed through

notification in the Federal Register.

A summary of the 1997 allocations for the three periods is shown in

Table 1.

Table 1.--Period Allocations of Commercial Scup Quota

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

Quota allocation

Period Percent TAC \1\ Discards \2\ -------------------------------

(pounds) (kilograms)

--------------------------------------------------------------------------------------------------------\3\-----

WINTER I............................. 45.11 3,204,163 497,563 2,706,600 1,227,693

SUMMER............................... 38.95 2,766,619 429,619 2,337,000 1,060,045

WINTER II............................ 15.94 1,132,218 175,818 956,400 433,816

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

TOTAL............................ 100.00 7,103,000 1,103,000 6,000,000 2,721,554

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

\1\ Total Allowable Catch, in pounds. \2\ Discard estimates, in pounds. \3\ Kilograms are as converted

from pounds.

[[Page 27980]]

The 1997 commercial quota for the Summer period (2,337,000 lb;

1,060,045 kg), apportioned among the states according to the percentage

shares specified in Sec. 648.120(d)(3), is presented in Table 2.

Table 2.--Summer Period (May-October) Commercial Quota Shares

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

1997 allocation

State Share ----------------------------

(percent) (pounds) (kilograms)

----------------------------------------------------------------\1\-----

Maine.......................... 0.13042 3,048 1,383

New Hampshire.................. 0.00004 1 0

Massachusetts.................. 15.49117 362,029 164,214

Rhode Island................... 60.56588 1,415,425 642,026

Connecticut.................... 3.39884 79,431 36,029

New York....................... 17.05295 398,527 180,769

New Jersey..................... 3.14307 73,453 33,318

Delaware....................... 0.00000 0 0

Maryland....................... 0.01288 301 137

Virginia....................... 0.17787 4,157 1,886

North Carolina................. 0.02688 628 285

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

Total...................... 100.00000 2,337,000 1,060,045

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

\1\ Kilograms are as converted from pounds and do not add to the

converted total due to rounding.

Section 648.121(b) requires the Administrator, Northeast Region,

NMFS (Regional Administrator) to monitor the Summer period state

commercial quotas and determine the date when a state commercial quota

is harvested. NMFS is required to publish notification in the Federal

Register advising a state and notifying vessel and dealer permit

holders that, effective upon a specific date, a state's Summer period

commercial quota has been harvested and that no Summer period

commercial quota is available for landing scup in that state for the

remainder of the period. Because the amount of commercial quota that is

allocated for the Summer period to the State of New Hampshire is 1 lb

(less than 1 kg) and to the State of Delaware is 0 lb (0 kg), the

Regional Administrator has determined that no quota is available for

landings in those states for the Summer period.

The regulations at Sec. 648.4(b) provide that Federal permit

holders agree, as a condition of the permit, not to land scup in any

state that the Regional Administrator has determined no longer has

commercial quota available. Therefore, effective 0001 hours May 20,

1997, until 2400 hours, October 31, 1997, landings of scup in New

Hampshire or Delaware by vessels holding commercial Federal fisheries

permits are prohibited, unless quota becomes available through a

transfer and is announced in the Federal Register. Federally permitted

dealers are also advised that they may not purchase scup from federally

permitted vessels that land in New Hampshire or Delaware for the

remainder of the Summer period or until quota becomes available through

a transfer.

Comments and Responses

Written comments from the Commonwealth of Massachusetts Division of

Marine Fisheries (MA-DMF); the Commonwealth of Massachusetts Executive

Office of Environmental Affairs, Office of Coastal Zone Management (MA-

OCZM); the State of Delaware Division of Fish and Wildlife (Delaware);

the Council; three fishing industry associations; one U.S. Congressman;

and six members of the public were received during the public comment

period, which ended on March 7, 1997. One association letter was

accompanied by a petition that was signed by 314 individuals. Several

written comments were also received during the public comment period

that were not relevant to the proposed rule for this regulatory

amendment. Those comments are not addressed here.

Comment: Delaware and the Council submitted a comment to explain

the de minimus provision. Specifically, Delaware interpreted the

provision to include the following points, and the Council concurred:

(1) De minimus status would be valid for 1 year; (2) de minimus quota

would be equal to 0.1 percent of the coastwide summer total and that

amount would be subtracted from the remainder prior to allocation to

the other states; (3) no landings of scup would be permitted by

federally permitted fishing vessels in states granted de minimus

status; (4) to apply for de minimus status, a state must show

``reasonable steps'' were taken to assure landings would not exceed its

de minimus allocation; (5) landings in excess of a de minimus state's

allocation would be taken off next year's allocation; (6) states

granted de minimus status would submit an annual report to the

Monitoring Committee, the Council, and the Board, detailing scup

landings and compliance.

Response: For the reasons noted in the preamble of this final rule,

NMFS has disapproved the provision to grant de minimus status to

states. As noted in the preamble, the clarification submitted did not

clarify adequately the measures and actually raised new concerns about

the provision.

Comment: One industry association urged disapproval because of the

rapid pace used to develop the quota measure. The association felt that

there was inadequate time for constructive discussion of the

alternatives.

Response: Amendment 8 to the FMP, approved on July 29, 1996 (61 FR

43420, August 23, 1996), stressed the Council's intention to revise the

coastwide commercial quota allocation system contained within it. Since

the Council contemplated revisions in Amendment 8, those changes are

promulgated through this regulatory amendment, instead of a plan

amendment. However, a regulatory amendment does not exempt an action

from full public participation afforded under the Magnuson-Stevens

Fishery Conservation and Management Act (Magnuson-Stevens Act). Public

hearings for this regulatory amendment were held from September 10,

1996,

[[Page 27981]]

through September 12, 1996, in coastal communities from Buzzards Bay,

MA, to Cape May Courthouse, NJ. This schedule of hearings invited

widespread public input into the development of the regulatory

amendment, including its alternatives. This schedule is entirely

consistent with the legal requirements that pertain to the fishery

management plan development process.

Comment: Two commenters urged disapproval of the regulatory

amendment as inconsistent with national standard 4. One U.S.

Congressman recommended disapproval of the regulatory amendment because

of the Summer allocations to the states and his concern about the

Massachusetts allocation. One individual requested that NMFS disapprove

the regulatory amendment, because he feels it is based on inaccurate

data, fails to address differing discard rates by gear type, and

imposes no effort control on gear types with high discard rates. This

commenter believes that national standard 4 is violated by both the

coastwide quota approved under Amendment 8 to the FMP and this

regulatory amendment.

Response: For the reasons noted in this preamble, NMFS determined

all measures except de minimus to be consistent with the national

standards and all other applicable laws. NMFS disagrees that annual

allocations, or their distribution in either Amendment 8 or this

regulatory amendment, violate national standard 4. For the most part,

the distribution of the allocations is on a coastwide basis. During the

Winter period coastwide quotas, all industry participants will operate

under uniform landings limits regardless of where they are fishing or

in which state they reside. A coastwide quota does not have a

discriminatory effect between residents of different states, as such a

measure is indifferent to the location of the fishing effort that

results in its harvest. While many would like to see higher annual

quotas, that desire conflicts with the conservation goals established

in Amendment 8, which are consistent with the principal focus of the

Magnuson-Stevens Act to prevent overfishing and to rebuild overfished

stocks, of which scup is one. This approach to management does not

raise any issues with respect to national standard 4. Further, the

state-by-state quota system in the Summer period established by this

regulatory amendment is equally consistent with national standard 4.

National standard 4 requires that any allocation be fair and

equitable to all participants in the fishery. This requirement does not

translate into a management scheme in which all state quotas have to be

the same or similar. The fair and equitable aspect of national standard

4, as applied to this regulatory amendment, relates to the manner in

which the allocation is assigned to the states. In this instance,

during the Summer period, the assignment of the quota to the states is

based on the same formula. Each state receives a percentage of the

quota based on the percentage of the overall catch represented by the

states' landings data from 1983 through 1992. The states are going to

share the quota differently since their historical percentage of the

overall landings are different. The historical landings data are the

best available data upon which to base the allocation system. Use of

these data is consistent with the requirements of national standard 2.

Further, the regulatory amendment specifies that those percentages may

be revised if additional data are provided to indicate that a state's

landings data were incomplete.

This regulatory amendment cannot impose effort control on gear

types with high discard rates because at the present time such

information is not available for analysis. The issue is addressed

elsewhere in this preamble.

Comment: Two industry associations expressed their belief that the

data available are inadequate for use as a basis for management.

Response: NMFS disagrees that available data are not sufficient to

support the measures in this regulatory amendment. The measures rely

upon the best scientific data available from both NMFS and the states.

While data are lacking for certain elements of this fishery--notably

landings from some states' inshore handline fisheries--this regulatory

amendment does contain the provision to allow states to revise their

summer shares based on amended data for the historical period. Further,

if gear-specific data become available, that data could be reflected in

the annual quota calculation.

Comment: The MA-DMF commented that the regulatory amendment

violates national standard 9 because it fails to reduce bycatch.

Response: To begin addressing discards in the scup fishery, and

bycatch of scup in other fisheries, the final specifications for the

1997 scup fishery revised gear requirements for the commercial sector

of this fishery. Specifically, the minimum codend mesh for otter trawl

vessels was increased to 4.5 inches (11.43 cm), triggered by the

harvest of a threshold of 4,000 lb (1,814 kg) from November through

April, and 1,000 lb (453 kg) from May through October. The intent of

this measure is to encourage offshore vessels that target squid with

1.875 inch (4.76 cm) mesh, to move off concentrations of scup, unless

the vessel intends to continue fishing with the larger mesh. As the

regulatory amendment calls for discards to be subtracted from a

period's TAC, there is further incentive to discard less, as lower

levels of discards could also be reflected in the annual quota

calculation. This approach is consistent with national standard 9 that

directs, in part, that to the extent practicable, bycatch should be

minimized.

Comment: One industry association expressed concern about the

adequacy of data available to estimate discards (referring to the

estimate as ``subjective'') and also about the methods for using those

data in calculating the quotas.

Response: Since the estimate of scup discards are the best

available data at this time, it would be inappropriate to characterize

these data as ``subjective.'' The term ``subjective'' implies that the

estimates are modified by individual bias, when, in fact, the estimates

used are based on direct observations from sea sampling and landings.

These data are the best scientific information available to NMFS. The

estimation methodology has been reviewed and accepted by the NMFS Stock

Assessment Workshop process, which is a peer-reviewed process involving

participants from academia, Federal and state agencies, and industry.

With this regulatory amendment, the discard estimates attributable

to a period are to be subtracted from that period's TAC. The first step

in estimating a TAC (used to determine the quota) is estimating current

stock size. That stock size estimate is based on an analysis of the

effects of both discards and landings. The target exploitation rate,

including the effects of both discards and landings, is then ``plugged

into'' the current stock size to determine the TAC. It is assumed that

the observed discard pattern (including the ratio of discards to

landings of fish at each age) in a given year will persist in the year

for which the TAC is allocated. Thus, the TAC equals landings plus

discards. If discards are not subtracted from the TAC, and the entire

TAC is allowed as landings, then the target exploitation rate will be

substantially exceeded.

Comment: Three industry associations, two individuals, and the MA-

DMF questioned the adequacy of discard data used in calculating the

commercial quota. Concern was expressed about inadequate sea sampling

of offshore freezer trawler vessels and the lack of specific action to

reduce discards. The MA-DMF

[[Page 27982]]

contends that the treatment of the discard data is inequitable to the

Massachusetts fishery.

Response: The amount of discard data that may be collected is

dependent on the amount of funding available for sea sampling in a

given year. NMFS notes that sea sampling is especially difficult for

the scup fishery, as the fishery is pursued over a wide geographic

range as well as a wide range of seasons and gear types. However, this

regulatory amendment and the existing FMP rely on data that are the

best available scientific information.

Comment: Three industry associations and one U.S. Congressman felt

the regulations gave no consideration to past conservation actions

taken by the Commonwealth of Massachusetts and that Massachusetts lacks

effective participation in fishery management plans administered

jointly by the Council and Commission. Some of these commenters felt

that this apparent lack of participation by Massachusetts was in

violation of national standard 4.

Response: The allocation of commercial quota is based on data for a

state's historical fishery from the base years of 1983 through 1992 and

includes all data supplied by NMFS and the states for those years.

Measures adopted by Massachusetts in 1992 and subsequent years,

including a ban on night dragging and minimum fish size, are

commendable and excellent conservation measures for the scup stock.

However, those measures do not impact the landings during the base

years that define the historical fishery in this regulatory amendment.

This regulatory amendment, as well as the FMP, was prepared jointly

by the Council and the Commission, with assistance provided by the New

England Fishery Management Council. Massachusetts effectively

participated in the development of this regulatory amendment through

two of those bodies: The New England Fishery Management Council, on

which Massachusetts holds a voting seat, and the Commission, which

votes on actions independent of the Council by way of the Summer

Flounder, Scup, and Black Sea Bass Board (Board). A representative of

Massachusetts chairs the Commission's Board. Massachusetts'

participation, or any lack thereof, does not raise any issues with

respect to national standard 4 that have not been addressed above.

Comment: One industry association made a specific request to

eliminate wasteful, harmful fishing practices and encourage

conservation by exempting handlines, scup pots, and weirs from the

quota plan.

Response: The commercial quota is one of the major conservation

measures to achieve the target exploitation rates of the FMP. The FMP

specifically requires that all scup landed for sale in a state,

regardless of where or how it is harvested, count against the quota.

Therefore, there is no provision in the regulations to exempt the catch

taken by any specific gear type from the quota. The commenter did not

elaborate on how such an exemption from the quota by a user group would

discourage wasteful and harmful fishing practices or encourage

conservation. The commenter offered no alternative that would allow the

inshore industry to assist in meeting the reductions in exploitation

mandated by the FMP.

Comment: One industry association and one individual felt this

regulatory amendment discriminated against specific gear types because

the discard deduction does not distinguish between different fishing

methods.

Response: The data presently available do not provide the basis to

manage individual gear types differently. However, the regulatory

amendment does provide a mechanism that will allow future consideration

of gear differences, should such data become available.

Comment: Two individuals expressed concern that the quota would be

caught early in the fishing year and that there would be no fishery for

the summer inshore commercial fishery in Massachusetts.

Response: This regulatory amendment incorporates language to

address specifically this concern. Any overages that occur in the 1997

Winter I allocation, and made prior to implementation of this

regulatory amendment, will be taken off the 1997 Winter II and

subsequent Winter periods. In 1998 and beyond, overages in a period's

allocation will be deducted from that period the following year. In no

scenario will an overage from a winter fishery impact a Summer period

allocation.

Comment: One industry association and one member of the public

commented that this regulatory amendment would financially devastate

coastal communities. The association noted that almost all of its

members derive greater than 50 percent of their income from the

commercial harvest of scup. They feared that between May 1 and May 15

or 20, when trap fishermen and handliners normally start harvesting,

the quota could be filled by draggers issued a Massachusetts Coastal

Access vessel permit. As a result, Massachusetts' fishery would close

before they could fish. This early closure would result in financial

devastation for the coastal communities in which they do business.

Response: Under this rule, the commercial quota for the Summer scup

fishery (May through October) will be managed on a state-by-state

basis. This regulatory amendment requires the full cooperation of the

states in order for the entire FMP to be successful. The states may

implement their Summer allocation in a manner that best suits their

individual fisheries. Massachusetts may choose to implement its quota

using trip limits or other measures to preserve quota for particular

sectors of its industry. Such measures, implemented by the State, would

serve to mitigate the financial impacts of the Summer quota. The

Assistant General Council for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration, when this rule was proposed, that

this rule is not expected to have a significant economic impact on a

substantial number of small entities. That certification, including the

reasons for it, was published in the preamble to the proposed rule (62

FR 5375, February 5, 1997). This regulatory amendment is intended to

preserve the historical pattern of commercial harvest of scup by

seasons, thus reducing the impact on small entities that may otherwise

be felt under a coastwide quota with no method of controlling the rate

of harvest.

Comment: One industry group and one member of the public expressed

concern for participants in the recreational fishery because of the

belief that the group, although large in number, receives very little

quota and will be negatively impacted by this regulatory amendment.

Response: This regulatory amendment has no impact on the

recreational fishery. The recreational sector of the fishery is

currently operating under a target harvest limit that is not revised by

this action. Final specifications for the commercial and recreational

scup fisheries were published on March 14, 1997 (62 FR 12105). Those

specifications allocate 6.0 million lb (2.7 million kg) to the

commercial sector and 1.947 million lb (0.88 million kg) to the

recreational sector. Neither allocation is changed by this regulatory

amendment.

Comment: The MA-CZM commented that the Council should consider

measures other than quota to control fishing (e.g., ban night trawling,

etc.), as Massachusetts did several years ago.

Response: The commercial quota revised by this action is but one of

several measures implemented under

[[Page 27983]]

Amendment 8 to control fishing mortality in the scup fishery. Other

measures include a moratorium on new entrants into the fishery, gear

restrictions, minimum fish size, pot/trap requirements, and a target

harvest level for the recreational fishery. Generally, controls on

fishing gear, such as mesh and escape vent sizes, control the rate of

mortality on sublegal fish, i.e., fish that are not yet vulnerable to

the gear. The quota measures constrain the number of legal sized fish

that may be removed from a stock. These two measures combined are

intended to achieve the goals of the FMP to reduce overfishing on the

scup stock.

Comment: The MA-DMF commented that the mixed species/discard

problem is not resolved with minimum fish and mesh size requirements.

The MA-DMF strongly advocates large season/area closures in offshore

waters, particularly during the fall through spring seasons to reduce

the discard of small scup.

Response: NMFS agrees that such measures may be prudent for this

fishery, and deserve to be seriously considered for implementation in

1998.

Changes From the Proposed Rule

This final rule implements the provisions of the regulatory

amendment by amending 50 CFR part 648, Fisheries of the Northeastern

United States. As a result of the President's Regulatory Reinvention

Initiative, regulatory language for all of the fishery management plans

within the purview of the Council and the New England Fishery

Management Council were consolidated into part 648. In some cases, this

final rule mentions fisheries other than scup in the regulatory

language. The regulations governing these other fisheries have not been

amended here and their mention in the regulatory language is merely to

reduce confusion for the reader.

In Sec. 648.14, paragraph (a)(89), the phrase ``fish for, catch or

retain'' is revised to read ``fish for, catch and retain, or land'' to

clarify the prohibition on landing more than the limit.

Since the measure to grant de minimus status to a state was

disapproved by NMFS, in Sec. 648.120, paragraphs (b)(2) through (b)(8)

are redesignated as (b)(4) through (b)(10) and proposed paragraphs

(b)(4) and (e) are removed from the regulations.

The paragraph specifying states' shares in proposed

Sec. 648.120(d)(7) is corrected to read ``(d)(3),'' and the requirement

that the Council and Commission recommend to the Regional Administrator

that the seasonal allocations in paragraph (d)(1) be revised as a

result of changes in landings data available from the states for the

base years 1983-92, is added.

Proposed Sec. 648.120(f) is redesignated as Sec. 648.120(e).

Classification

This rule will enhance the efficiency of the Fishery Management

Plan for the Summer Flounder, Scup, and Black Sea Bass Fisheries, and

offer benefits in implementing the commercial quota provisions of this

joint plan by redistributing the quota in the manner already approved

by the Commission. In order to realize these benefits, this rule must

be effective as close as possible to May 1, the start of the 1997

Summer period. Therefore, there is good cause under 5 U.S.C. 553(d)(3)

not to delay for 30 days the effective date of these regulations but to

make them effective upon the date of filing for public inspection at

the Office of the Federal Register.

The Regional Administrator determined that this regulatory

amendment is necessary for the conservation and management of the scup

fishery and that it is consistent with the Magnuson-Stevens Act and

other applicable laws.

This final rule has been determined to be not significant for the

purposes of E.O. 12866.

Notwithstanding any other provision of the law, no person is

required to respond to nor shall any person be subject to a penalty for

failure to comply with a collection of information subject to the

requirements of the Paperwork Reduction Act (PRA), unless that

collection of information displays a currently valid OMB control

number.

This rule contains a collection-of-information requirement subject

to the PRA. The state request to transfer quota has been approved by

OMB under control number 0648-0202 and is estimated to average 1 hour

per response. The estimated response time includes the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding this burden

estimate, or any other aspect of the collection of information,

including suggestions for reducing the burden, to NMFS and OMB (see

ADDRESSES).

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, when this rule was proposed, that

the management measures contained in this regulatory amendment will not

have a significant economic impact on a substantial number of small

entities. The reasons for this certification are contained in the

certification, which was published as part of the preamble to the

proposed rule (62 FR 5375, February 5, 1997) and are not repeated here.

NMFS received several comments from representatives of the

Massachusetts inshore fishery regarding the economic impacts of this

rulemaking, but none specifically addressing this certification. These

comments were addressed in the Comments/Response section of this final

rule. The commenters noted primarily that many participants in the

inshore segment of the Massachusetts fishery derive a significant

portion of their income from the harvest of scup during the Summer

period. Other comments stressed that many of the landings from this

segment of the fishery are not represented in the scup landings

database. The commenters have come forward with concerns that can not

be confirmed by the scup landings database. Without specific data on

the level of fishing historically undertaken by the inshore segment of

the commercial scup fishery, it is impossible to analyze the economic

impacts on the inshore Massachusetts fishery versus the fishery as a

whole. If the inshore fishery is taken as a distinct universe of

participants for the purpose of determining impacts under RFA, it is

conceivable that this action may meet the criteria for significant

impact, as the commenters claim. However, NMFS cannot confirm that

claim because data are lacking for that segment of the fishery. The

comments did not provide any information changing the basis for the

certification. As a result, no regulatory flexibility analysis was

prepared.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: May 16, 1997.

Gary Matlock,

Acting 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 (b) is revised to read as follows:

[[Page 27984]]

Sec. 648.4 Vessel and individual commercial permits.

* * * * *

(b) Permit conditions. Any person who applies for a fishing permit

under this section must agree as a condition of the permit that the

vessel and the vessel's fishing activity, catch, and pertinent gear

(without regard to whether such fishing occurs in the EEZ or landward

of the EEZ, and without regard to where such fish or gear are

possessed, taken or landed), are subject to all requirements of this

part, unless exempted from such requirements under this part. All such

fishing activities, catch, and gear will remain subject to all

applicable state requirements. Except as otherwise provided in this

part, if a requirement of this part and a management measure required

by a state or local law differ, any vessel owner permitted to fish in

the EEZ for any species managed under this part must comply with the

more restrictive requirement. Owners and operators of vessels fishing

under the terms of a summer flounder moratorium, scup moratorium, or

black sea bass moratorium permit must also agree not to land summer

flounder, scup, or black sea bass, respectively, in any state after

NMFS has published a notification in the Federal Register stating that

the commercial quota for that state or period has been harvested and

that no commercial quota is available for the respective species. A

state not receiving an allocation of summer flounder, scup, or black

sea bass, either directly or through a coastwide allocation, is deemed

to have no commercial quota available. Owners or operators fishing for

surf clams and ocean quahogs within waters under the jurisdiction of

any state that requires cage tags are not subject to any conflicting

Federal minimum size or tagging requirements. If a surf clam and ocean

quahog requirement of this part differs from a surf clam and ocean

quahog management measure required by a state that does not require

cage tagging, any vessel owners or operators permitted to fish in the

EEZ for surf clams and ocean quahogs must comply with the more

restrictive requirement while fishing in state waters. However,

surrender of a surf clam and ocean quahog vessel permit by the owner by

certified mail addressed to the Regional Administrator allows an

individual to comply with the less restrictive state minimum size

requirement, as long as fishing is conducted exclusively within state

waters. If the commercial black sea bass quota for a period is

harvested and the coast is closed to the possession of black sea bass

north of 35 deg.15.3' N. lat., any vessel owners that hold valid

commercial permits for both the black sea bass and the NMFS Southeast

Region Snapper-Grouper fisheries may surrender their moratorium Black

Sea Bass permit by certified mail addressed to the Regional

Administrator and fish pursuant to their Snapper-Grouper permit, as

long as fishing is conducted exclusively in waters, and landings are

made, south of 35 deg.15.3' N. lat. A moratorium permit for the black

sea bass fishery that is voluntarily relinquished or surrendered will

be reissued upon the receipt of the vessel owner's written request

after a minimum period of 6 months from the date of cancellation.

* * * * *

3. In Sec. 648.14, paragraphs (a)(89) through (a)(101) are

redesignated as (a)(90) through (a)(102), respectively, and a new

paragraph (a)(89) is added to read as follows:

Sec. 648.14 Prohibitions.

(a) * * *

(89) Fish for, catch and retain, or land scup in or from the EEZ

north of 35 deg.15.3' N. lat. in excess of the landing limit

established pursuant to Sec. 648.120 (b)(2) and (b)(3).

* * * * *

4. In Sec. 648.120, paragraph (b)(1) is revised, paragraphs (b)(2)

through (b)(8) are redesignated as paragraphs (b)(4) through (b)(10),

respectively, new paragraphs (b)(2) and (b)(3) are added, paragraphs

(c) and (d) are revised, and paragraph (e) is added to read as follows:

Sec. 648.120 Catch quotas and other restrictions.

* * * * *

(b) * * *

(1) The commercial quota for each of the three periods specified in

paragraph (d)(1) of this section, to be set from a range of 0 to the

maximum allowed to achieve the specified exploitation rate. The

commercial quota will be established by estimating the annual total

allowable catch (TAC), allocating it into the three periods, and

deducting the discard estimates for each period.

(2) Landing limits for the Winter I and Winter II periods.

(3) Percent of landings attained at which the landing limit for the

Winter I period will be reduced.

* * * * *

(c) Annual fishing measures. The Demersal Species Committee shall

review the recommendations of the Scup Monitoring Committee. Based on

these recommendations and any public comment, the Demersal Species

Committee shall recommend to the MAFMC measures necessary to assure

that the specified exploitation rate will not be exceeded. The MAFMC

shall review these recommendations and, based on these recommendations

and any public comment, recommend to the Regional Administrator

measures necessary to assure that the specified exploitation rate will

not be exceeded. The MAFMC's recommendation must include supporting

documentation, as appropriate, concerning the environmental and

economic impacts of the recommendations. The Regional Administrator

shall review these recommendations and any recommendations of the

Commission. After such review, NMFS will publish a proposed rule in the

Federal Register by October 15 to implement a commercial quota,

specifying the amount of quota allocated to each of the three periods,

landing limits for the Winter I and Winter II periods, the percentage

of landings attained during the Winter I fishery at which the landing

limits will be reduced, a recreational harvest limit and additional

management measures for the commercial fishery. NMFS will publish a

proposed rule in the Federal Register by February 15 to implement

additional management measures for the recreational fishery, if the

Regional Administrator determines that such measures are necessary to

assure that the specified exploitation rate will not be exceeded. After

considering public comment, NMFS will publish a final rule in the

Federal Register to implement the annual measures.

(d) Distribution of Commercial Quota. (1) The annual commercial

quota will be allocated into three periods, based on the following

percentages:

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

Period Percent

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

Winter I--January-April...................................... 45.11

Summer-May-October........................................... 38.95

Winter II--November-December................................. 15.94

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

(2) The Winter I and Winter II commercial quotas will each be

distributed to the coastal states from Maine through North Carolina on

a coastwide basis.

(3) The Summer commercial quota will be allocated to the coastal

states from Maine through North Carolina, based upon the following

percentages:

Summer Period (May-October) Commercial Quota Shares

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

Share

State (percent)

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

Maine................................................... 0.13042

New Hampshire........................................... 0.00004

[[Page 27985]]

Massachusetts........................................... 15.49120

Rhode Island............................................ 60.56589

Connecticut............................................. 3.39884

New York................................................ 17.05295

New Jersey.............................................. 3.14307

Delaware................................................ 0.00000

Maryland................................................ 0.01286

Virginia................................................ 0.17789

North Carolina.......................................... 0.02690

Total................................................... 100.00000

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

(4) All scup landed for sale in any state during either Winter I or

Winter II shall be applied against the coastwide commercial quota for

that period, regardless of where the scup were harvested. All scup

landed for sale in a state during the Summer period shall be applied

against that state's summer commercial quota, regardless of where the

scup were harvested.

(5) All scup landed for sale in any state during the period January

1, 1997, through April 30, 1997, shall be applied against the coastwide

commercial quota for the 1997 Winter I period, regardless of where the

scup were harvested. Any landings during that time in excess of the

1997 Winter I commercial quota will be subtracted from the 1997 Winter

II period's allocation. Any overage beyond the 1997 Winter II

allocation will be deducted from subsequent winter periods.

(6) Beginning in 1997, any overages of the commercial quota landed

in any state during the Summer period will be deducted from that

state's Summer period quota for the following year. Beginning in 1998,

any overages of the commercial quota landed in any Winter period will

be subtracted from the period's allocation for the following year.

(7) Based upon any changes in the landings data available from the

states for the base years 1983-92, the Commission and the Council may

recommend to the Regional Administrator that the states' shares

specified in paragraph (d)(3) of this section and the period

allocations specified in paragraph (d)(1) of this section be revised.

The Council's and the Commission's recommendation must include

supporting documentation, as appropriate, concerning the environmental

and economic impacts of the recommendation. The Regional Administrator

shall review the recommendation of the Commission and the Council.

After such review, NMFS will publish a proposed rule in the Federal

Register to implement a revision in the state shares. After considering

public comment, NMFS will publish a final rule in the Federal Register

to implement the changes in allocation.

(e) Quota transfers and combinations. Any state implementing a

state commercial quota for scup may request approval from the Regional

Administrator to transfer part or all of its Summer period quota to one

or more states. Two or more states implementing a state commercial

quota for scup may request approval from the Regional Administrator to

combine their quotas, or part of their quotas, into an overall regional

quota. Requests for transfer or combination of commercial quotas for

scup must be made by individual or joint letter(s) signed by the

principal state official with marine fishery management responsibility

and expertise, or his or her previously named designee, for each state

involved. The letter(s) must certify that all pertinent state

requirements have been met and identify the states involved and the

amount of quota to be transferred or combined.

(1) Within 10 working days following the receipt of the letter(s)

from the states involved, the Regional Administrator shall notify the

appropriate state officials of the disposition of the request. In

evaluating requests to transfer a quota or combine quotas, the Regional

Administrator shall consider whether:

(i) The transfer or combination would preclude the overall Summer

period quota from being fully harvested.

(ii) The transfer addresses an unforeseen variation or contingency

in the fishery.

(iii) The transfer is consistent with the objectives of the Summer

Flounder, Scup, and Black Sea Bass FMP and the Magnuson-Stevens Act.

(2) The transfer of quota or the combination of quotas will be

valid only for the Summer period for which the request was made and

will be effective upon the filing by NMFS of a notification of approval

of the quota transfer or combination with the Office of the Federal

Register.

(3) A state may not submit a request to transfer quota or combine

quotas if a request to which it is party is pending before the Regional

Administrator. A state may submit a new request when it receives notice

that the Regional Administrator has disapproved the previous request or

when notification of approval of the quota transfer or combination has

been filed at the Office of the Federal Register.

(4) If there is a quota overage among states involved in the

combination of quotas at the end of the Summer period, the overage will

be deducted from the following Summer period's quota for each of the

states involved in the combined quota. The deduction will be

proportional, based on each state's relative share of the combined

quota for the previous Summer period. A transfer of quota or

combination of quotas does not alter any state's percentage share of

the overall Summer period quota specified in paragraph (d) of this

section.

5. Section 648.121 is revised to read as follows:

Sec. 648.121 Closures.

(a) Winter closures. The Regional Administrator will monitor the

harvest of commercial quota for each Winter period based on dealer

reports, state data, and other available information and shall

determine the date when the commercial quota for a Winter period will

be harvested. NMFS shall close the EEZ to fishing for scup by

commercial vessels for the remainder of the indicated period by

publishing notification in the Federal Register advising that,

effective upon a specific date, the commercial quota for that period

has been harvested, and notifying vessel and dealer permit holders that

no commercial quota is available for landing scup for the remainder of

the period.

(b) Summer closure. The Regional Administrator will monitor the

Summer period state commercial quota based on dealer reports, state

data, and other available information, and shall determine the date

when a state's commercial quota will be harvested. NMFS shall publish

notification in the Federal Register advising a state that, effective

upon a specific date, its Summer period commercial quota has been

harvested and notifying vessel and dealer permit holders that no Summer

period commercial quota is available for landing scup in that state for

the remainder of the period.

[FR Doc. 97-13504 Filed 5-20-97; 8:45 am]

BILLING CODE 3510-22-P