Fisheries of the Northeastern United States; Amendment 10 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 970908229-7277-02; I.D. 082797A]

RIN 0648-AJ55

Fisheries of the Northeastern United States; Amendment 10 to the

Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement the approved measures

contained in Amendment 10 to the Fishery Management Plan for the Summer

Flounder, Scup, and Black Sea Bass Fisheries (FMP). Approved measures

of Amendment 10 include a continuation of the moratorium for commercial

vessels; minimum mesh-size requirements throughout the body, extension,

and codend of trawl nets for

[[Page 63873]]

the directed summer flounder fishery; removal of the requirement that a

vessel land summer flounder during a 52-week period in order to retain

a moratorium permit; and a prohibition of the transfer of summer

flounder at sea. This action is intended to enhance the rebuilding of

the summer flounder resource in accordance with the objectives of the

FMP.

DATES: All measures are effective on January 1, 1998, except that the

baseline date for measuring vessel upgrades in

Sec. 648.4(a)(3)(i)(C)(1) and (2) is effective January 2, 1998 and the

gear restrictions in Sec. 648.104(a)(1) are effective June 3, 1998.

ADDRESSES: Copies of Amendment 10, the environmental assessment, and

the regulatory impact review are available from David R. Keifer,

Executive Director, Mid-Atlantic Fishery Management Council, Room 2115

Federal Building, 300 S. New Street, Dover, DE 19904-6790.

FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, Fishery Policy

Analyst, 978-281-9279.

SUPPLEMENTARY INFORMATION:

Background

Amendment 10 was prepared by the Mid-Atlantic Fishery Management

Council (Council) and the Atlantic States Marine Fisheries Commission

(Commission), in consultation with the New England and South Atlantic

Fishery Management Councils. A notice of availability for the amendment

was published in the Federal Register on September 3, 1997 (62 FR

46470), and the proposed rule to implement Amendment 10 was published

in the Federal Register on September 19, 1997 (62 FR 49195). The notice

of availability and the proposed rule solicited public comments through

November 3, 1997. All comments received by the end of the comment

period, whether specifically directed to Amendment 10 or to the

proposed rule, were considered in the approval decision on Amendment

10.

Amendment 10 proposed a number of changes to the summer flounder

regulations. Details concerning the development of Amendment 10 were

provided in the notice of proposed rulemaking and are not repeated

here.

NMFS, on behalf of the Secretary of Commerce, has approved the

measures that (1) modify the commercial minimum mesh size, (2) continue

the moratorium on entry of additional commercial vessels, (3) remove

the landing requirements applicable to permit retention, (4) modify the

vessel replacement criteria, (5) allow federally permitted charter and/

or party vessels to possess fillets less than the minimum size if in

possession of a permit to do so issued by their state, and (6) prohibit

transfer of summer flounder at sea. Amendment 10 also contains measures

adopted by the Commission as part of its interstate management process.

Defined as a compliance criterion, this measure would require states to

document all summer flounder commercial landings in their state that

are not otherwise included in the Federal monitoring of permit holders.

This management measure is not part of the Federal regulatory process

and is, therefore, not detailed in this rule. Details of this measure

are described in Amendment 10, which is available from the Council (see

ADDRESSES).

In addition, the Council re-evaluated in Amendment 10 the

commercial quota system implemented by Amendment 2. During the public

hearings for Amendment 10, the Council and Commission proposed several

alternative quota allocation systems, with the status quo being the

preferred alternative. After receiving and considering public comments,

the Council and Commission voted to maintain the existing state-by-

state commercial quota allocation system. The Council and Commission

felt that the current system allows states the most flexibility in

managing their quotas by implementing state subquotas and trip limits.

Disapproved Measure

After a review of Amendment 10, NMFS found that the de minimus

status provision was not consistent with national standard 7, raised

questions of consistency with national standard 1, and appeared

inconsistent with other applicable law. This measure would require an

annual examination of state landings to determine whether landings in

that state during the preceding year for which data are available were

less than 0.1 percent of the overall annual quota. This determination

was to be based on landings for the last preceding year for which data

are available. If a state met the 0.1 percent criterion, it would be

granted de minimus status. This provision is intended to provide a

small bycatch fishery in a state where summer flounder would otherwise

be discarded. A state's failure to close its fishery when its quota is

harvested would prevent the attainment of the fishing mortality rate

goals in the FMP, since vessels without Federal permits fishing

exclusively in that state's waters could continue to land summer

flounder. This would result in overfishing and would render the measure

inconsistent with national standard 1.

If de minimus status does not, at the very least, require a state

to impose landing constraints, the provision would encourage owners of

vessels that have not traditionally landed in that state to land

amounts of summer flounder much greater than they could land in their

home port states. This could result in the state's de minimus quota

being rapidly exceeded and compound the overfishing situation if a de

minimus state is not required to close its fishery when its de minimus

quota is harvested.

Further, the standard established to determine de minimus status

(examination of landings data for the last year for which data are

available) would not allow for an accurate calculation of

qualification. Landings in the intervening time period in the state

under consideration for de minimus status could well exceed the

threshold for such status. Thus, such a determination would not reflect

accurately the true status of the state. The de minimus measure would

impose an administrative burden or cost to make this annual

determination, without conferring any demonstrable administrative or

conservation benefit. This contravenes the requirements of national

standard 7. It is unclear whether a de minimus state must close its

state fishery when its quota is harvested.

For the reasons stated above, this measure would impose an

administrative burden or cost to make this determination, without

conferring any demonstrable administrative benefit. This contravenes

the requirements of national standard 7. Further, the failure of a

state to close its fishery when its quota is harvested would result in

overfishing and would render the measure inconsistent with national

standard 1. As a result of this review, NMFS has disapproved the de

minimus measure.

Comments and Responses

Two comments on Amendment 10 were received. One comment was

received from the North Carolina Division of Marine Fisheries (NCDMF)

and another from a member of the fishing industry.

Comment 1: The NCDMF wrote to support all of the provisions in

Amendment 10, including the state-by-state commercial quota allocation

system, which, according to the comment, allows states to manage their

fisheries in accordance with historical management practices such as

trip limits, bycatch limits, and seasonal

[[Page 63874]]

closures. Although supportive of Amendment 10, NCDMF suggested that the

revised minimum mesh-size requirement in the amendment should be

implemented immediately upon approval because mesh of that size is

available. NCDMF notes that a large portion of the annual summer

flounder quota is taken during the first 6 months of the season, and

delayed implementation of the measure will negate the desired

conservation effect for the 1998 fishery.

Response: Amendment 10 specified that the Council would determine

the date of effectiveness of the revised minimum mesh requirement based

upon an assessment of the availability of net construction materials,

which would help to alleviate any localized shortages of twine that

might otherwise occur. The Council found that mesh is not available on

a coastwide basis and recommended the 6-month delay. NMFS concurs.

Comment 2: A member of the fishing industry indicated

dissatisfaction with the minimum mesh-size requirements of Amendment

10. The commenter wrote that the mesh-size requirements will inflict

financial hardship on day boat trawlers of western Long Island, New

York, and northern New Jersey because they will have to purchase new

nets to fish for scup and black sea bass, rather than just changing

codends to fish for these species as they currently do. The commenter

disputed the justification given in Amendment 10 for requiring 5.5-inch

(14.0-cm) mesh in the body, extension, and codend of summer flounder

trawl nets by stating that the practice of constricting the codend of

summer flounder nets to circumvent the minimum mesh-size regulations is

not a problem. Also, the commenter expressed concern that if Amendment

10 is adopted, summer flounder will be the only species that requires

regulated mesh in areas of the net other than the codend. Finally, the

commenter was opposed to the fact that the minimum mesh-size

regulations are not applicable to vessels in the summer flounder small-

mesh exemption program.

Response: Current scup and black sea bass minimum mesh-size

regulations apply only throughout the codend of the net. However, the

black sea bass regulations allow the Council, in future years, to

require minimum mesh size to be applied throughout the entire net.

Also, it is not clear that the requirement will necessarily result in a

need to purchase new nets to fish for scup and black sea bass. A fisher

may still use the same net, albeit with a 5.5-inch (14.0-cm) mesh

extension and body, to fish for these two species by changing only the

codend to conform with the appropriate regulations. The reason for the

change in the mesh regulations is that the Council is concerned about

the ``choking off'' or the constriction of codends in trawl nets in the

summer flounder fishery. The Council was concerned that continued poor

compliance with mesh-size regulations would result in higher fishing

mortality rates and in a decreased rate of stock recovery for summer

flounder. Applying the minimum mesh-size throughout the codend,

extension, and body of the net will eliminate this problem.

Summer flounder is not the only species where minimum mesh- size

regulations apply to portions of the net other than the codend. There

is ample precedence for this requirement. Most notably, the Northeast

multispecies regulations require that vessels fishing under a

multispecies day-at-sea use 6-inch (15.2- cm) square or diamond mesh

throughout the entire net.

The minimum mesh-size requirements do not apply to vessels issued a

summer flounder exemption permit, and fishing from November 1 to April

30 in the ``exemption area'' because the exemption is designed to allow

vessels to retain a bycatch of summer flounder while operating in other

small-mesh fisheries. The exemption allows for the prosecution of a

traditional small- mesh fishery while minimizing discards of summer

flounder. The existence of the exemption program is re-evaluated

annually after a review of sea sampling data, and re-authorized if

appropriate.

Changes From the Proposed Rule

NMFS notes that the Council recommended that May 13, 1997, be the

baseline date for measuring vessel upgrades at the time of replacement.

However, the baseline date was not specified when the Council held

public hearings on Amendment 10, although it is a necessary adjunct

required for administration of the replacement upgrade provision.

Therefore, in order for all potentially affected fishery participants

to have an equal notice of the baseline date, NMFS noted in the

proposed rule its intent to link the baseline date to the rulemaking.

However, the proposed rule was inconsistent in its description of the

date proposed. In one section it proposed to use September 19, 1997--

the date the proposed rule was published. In another, it proposed to

use the date 30 days following publication of the final rule. NMFS

received no comments on this matter. Therefore, this final rule

establishes January 2, 1998 as the baseline, because, as a general

matter, rules are to have prospective effect and some members of

industry may have relied on that date rather than September 19, 1997.

In Sec. 648.4, paragraph (a)(3)(i)(C)(3) is added, which indicates

that a vessel's horsepower, length, gross registered tonnage (GRT), and

net tonnage (NT) may be increased through replacement only once. If

length, GRT, or NT is increased, an increase in the other two

specifications must be performed at the same time, and this type of

increase may be done separately from a horsepower increase. This

provision is contained in Amendment 10, but was inadvertently omitted

from the proposed rule. As such, a prior notice and opportunity for

comment was provided through the notice of availability for Amendment

10. It has been added to this final rule to reflect the Council's

intent.

Classification

This final rule has been determined to be not significant for

purposes of E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this final rule, if adopted,

would not have a significant economic impact on a substantial number of

small entities as follows:

The final rule implements Amendment 10 by revising a number of

the regulations implementing the FMP and its amendments and by

adding a number of new regulations. No public comments were received

about the Council's economic analysis for Amendment 10 as it

pertains to Regulatory Flexibility Act nor the certification made by

the Assistant General Counsel for Legislation and Regulation of the

Department of Commerce, that this rule would not have a significant

economic impact on a substantial number of small entities, as

mentioned in the proposed rule.

The final rule modifies the commercial minimum mesh size

requirement, continues the moratorium on entry of additional

commercial vessels, modifies the vessel replacement criteria,

removes provisions that pertain to the expiration of the moratorium

permit, and prohibits transfer of summer flounder at sea. Amendment

10 examined alternate state commercial quota allocation mechanisms.

However, no change was made to the existing state-by-state system.

The requirement that minimum mesh size be applied throughout the

net impacts an estimated 42 percent of the participants in the

summer flounder fishery (443 of the 1,063 permit holders); the other

620 are already subject to requirements for minimum mesh throughout

the net because they hold northeast multispecies vessel permits.

Therefore, a substantial number of small entities (42 percent) are

impacted by this rule. However, the compliance costs associated with

the measure are not

[[Page 63875]]

significant under the Regulatory Flexibility Act. Costs were broken

down into trip or variable costs (e.g., fuel, ice, food) and yearly

or fixed costs (e.g., gear, insurance, engine and gear repair,

electronic equipment expenses). Labor costs were not included in the

analysis because labor is generally paid as a percentage of the

total revenues after certain expenses are subtracted. Compliance

costs are less than 1 percent of the total annual costs for offshore

vessels and 1.45 percent for the smaller inshore vessels. Compliance

costs reflect the cost of the gear conversion ranging from $775 for

inshore vessels to $1,354 for offshore vessels versus annualized

vessel costs ranging from $39,695 for vessels 5-50 in gross

registered tonnage to $171,692 for vessels greater than 150 gross

registered tons.

According to the Council, specific data are not available for

quantitative analysis of other new measures (e.g., modification of

vessel replacement criteria and prohibition of transfer of summer

flounder at sea) in Amendment 10. A qualitative analysis conducted

by the Council indicates that those measures would have no

significant impact on a substantial number of small entities because

of their implementation. The National Marine Fisheries Service

(NMFS) reviewed this analysis, and since most measures proposed in

Amendment 10 are administrative in nature, NMFS concurs that the new

measures would result in no significant economic impacts on small

entities. Additionally, the prohibition of transferring summer

flounder at sea and the vessel replacement criteria, would make the

FMP consistent with the Multispecies Fishery Management Plan, and

therefore would create no additional impacts for industry

participants who also participate in that fishery. Meanwhile, a

qualitative examination of the effects of the extension,

indefinitely, of the moratorium on new vessels and maintaining the

state-by-state allocation system for the coastwide quota for the

commercial fishery, indicates that these measures will not result in

a significant economic impact on a substantial number of small

entities. These measures should not cause more than 2 percent of the

vessels or dealers to cease business operations, result in a loss of

5 percent or more of ex-vessel revenues for 20 percent or more of

the participating vessels, nor change compliance costs. If the

moratorium was allowed to expire then it's conceivable that enough

new vessels would enter the fishery, so that a significant number of

vessels already in the fishery would incur a loss of 5 percent or

more in ex-vessel revenues. Similarly, if the state-by-state

allocation of the commercial quota was not continued, then the

states might lose enough flexibility so that some vessels would gain

in ex-vessel revenues, but a substantial number of small entities

might experience a significant loss in ex-vessel revenues.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: November 26, 1997.

Rolland Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 648 is amended

as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

follows:

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

2. In Sec. 648.4, paragraph (a)(3)(i)(B)(2) is removed and

reserved, and paragraphs (a)(3)(i)(C), (a)(5)(i)(A)(2), (a)(5)(i)(C),

(a)(5)(ii)(A)(2), (a)(5)(ii)(C), (a)(6)(i)(A)(2), (a)(6)(i)(C) are

revised to read as follows:

Sec. 648.4 Vessel and individual commercial permits.

(a) * * *

(3) * * *

(i) * * *

(C) Replacement vessels. To be eligible for a moratorium permit,

the replacement vessel must meet the following criteria:

(1) The replacement vessel's horsepower may not exceed by more than

20 percent the horsepower of the vessel that was initially issued a

moratorium permit as of January 2, 1998.

(2) The replacement vessel's length, GRT, and NT may not exceed by

more than 10 percent the length, GRT, and NT of the vessel that was

initially issued a moratorium permit as of January 2, 1998.

(3) A vessel's horsepower may be increased through replacement only

once. A vessel's length, GRT, and NT may be increased through

replacement only once. If any of these specifications is increased, any

increase in the other two must be performed at the same time. This type

of increase may be done separately from a horsepower increase.

* * * * *

(5) * * *

(i) * * *

(A) * * *

(2) The vessel is replacing such a vessel and the replacement

vessel meets the requirements of paragraph (a)(5)(i)(C) of this

section.

* * * * *

(C) Replacement vessels. To be eligible for a moratorium permit,

the replacement vessel must be replacing a vessel of substantially

similar harvesting capacity that is judged unseaworthy by the USCG, for

reasons other than lack of maintenance, or that involuntarily left the

fishery during the moratorium. Both the entering and replaced vessels

must be owned by the same person. Vessel permits issued to vessels that

involuntarily leave the fishery may not be combined to create larger

replacement vessels.

* * * * *

(ii) * * *

(A) * * *

(2) The vessel is replacing such a vessel and meets the

requirements of paragraph (a)(5)(i)(C) of this section.

* * * * *

(C) Replacement vessels. See paragraph (a)(5)(i)(C) of this

section.

* * * * *

(6) * * *

(i) * * *

(A) * * *

(2) The vessel is replacing such a vessel and meets the

requirements of paragraph (a)(5)(i)(C) of this section.

* * * * *

(C) Replacement vessels. See paragraph (a)(5)(i)(C) of this

section.

* * * * *

3. In Sec. 648.13, paragraph (d) is added to read as follows:

Sec. 648.13 Transfers at sea.

* * * * *

(d) All persons are prohibited from transferring or attempting to

transfer at sea summer flounder from one vessel to another vessel.

4. In Sec. 648.14, paragraph (j)(9) is added to read as follows:

Sec. 648.14 Prohibitions.

* * * * *

(j) * * *

(9) Offload, remove, or otherwise transfer, or attempt to offload,

remove or otherwise transfer summer flounder from one vessel to

another, unless that vessel has not been issued a summer flounder

permit and fishes exclusively in state waters.

* * * * *

5. In Sec. 648.103, paragraph (c) is revised to read as follows:

Sec. 648.103 Minimum fish sizes.

* * * * *

(c) The minimum sizes in this section apply to whole fish or to any

part of a fish found in possession, e.g., fillets, except that party

and charter vessels possessing valid state permits authorizing

filleting at sea may possess fillets smaller that the size specified if

all state requirements are met.

6. In Sec. 648.104, paragraph (a)(1) is revised, and paragraph (f)

is added to read as follows:

[[Page 63876]]

Sec. 648.104 Gear restrictions.

(a) * * * (1) Otter trawlers whose owners are issued a summer

flounder permit and that land or possess 100 or more lb (45.4 or more

kg) of summer flounder from May 1 through October 31, or 200 lb or more

(90.8 kg or more) of summer flounder from November 1 through April 30,

per trip, must fish with nets that have a minimum mesh size of 5.5-inch

(14.0-cm) diamond or 6.0-inch (15.2-cm) square mesh applied throughout

the body, extension(s), and codend portion of the net.

* * * * *

(f) The minimum net mesh requirement may apply to any portion of

the net. The minimum mesh size and the portion of the net regulated by

the minimum mesh size may be adjusted pursuant to the procedures in

Sec. 648.100.

[FR Doc. 97-31708 Filed 11-28-97; 2:01 pm]

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