Fisheries of the Northeastern United States; Decision on Petition for Rulemaking for Redistribution of the Summer Flounder Quota

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[I.D. 052097C]

Fisheries of the Northeastern United States; Decision on Petition

for Rulemaking for Redistribution of the Summer Flounder Quota

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Decision on petition for rulemaking.

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SUMMARY: NMFS announces its decision to not undertake the rulemaking

requested in a petition submitted by the State of Connecticut,

Commissioner of Environmental Protection (Connecticut). Connecticut

petitioned the Secretary of Commerce (Secretary) to eliminate the

current state-specific allocation of the commercial quota for summer

flounder and implement one of two options specified in its place. The

decision to deny the petition at this time is based on public comments

received on this petition for rulemaking and on the Mid-Atlantic

Fishery Management Council's (Council) and on the Atlantic States

Marine Fisheries Commission's (Commission) decision to retain the

current state-by-state quota system for summer flounder in Amendment 10

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

Sea Bass Fisheries (FMP).

FOR FURTHER INFORMATION CONTACT: Gary C. Matlock, Ph.D., Director,

Office of Sustainable Fisheries, (301) 713-2334, or Mark R. Millikin,

(301) 713-2341.

SUPPLEMENTARY INFORMATION: On June 2, 1997 (62 FR 29694), NMFS

published a notice of receipt of a petition for rulemaking submitted by

Connecticut. The petition requested the Secretary to implement either a

commercial allocation for summer flounder of two winter coastwide

periods and a state-by-state summer period, or a coastwide allocation

system for all three periods (two winter periods and a summer period).

Connecticut further petitioned that any regulation implementing a

state-by-state allocation system base the percent shares for each state

upon landings data for the period 1990 through 1992. On behalf of the

Secretary, NMFS considered the petition and comments received on the

petition.

In considering this petition, NMFS also considered actions

surrounding Amendment 10 to the FMP (Amendment 10) as they relate to

the summer flounder quota. Amendment 10 was approved by NMFS on

November 21, 1997 (62 FR 63872, December 3,

[[Page 2652]]

1997). In Amendment 10, the Council and Commission reconsidered the

method by which the FMP allocates the quota for the summer flounder

commercial fishery. All of the alternatives advocated by Connecticut in

its petition were thoroughly considered by the Council in the

development of Amendment 10. After considering the alternatives, the

Council and Commission chose to maintain the status quo for the

commercial summer flounder fishery and to retain the current state-by-

state allocation. The Council and Commission noted during the

discussions of Amendment 10 that many states have developed quota

management systems to account for seasonal variations in abundance and

in the size of the vessels that target summer flounder. With a

coastwide system, as suggested in Connecticut's petition, states would

lose that flexibility either during the winter or over the entire year.

No alternative system was identified that could provide the same

level of equity as the current system, particularly between the

northern and the southern states and between the small day boats and

larger offshore vessels. The Council and Commission further noted that

revising the years for the baseline allocation to 1990-92 was discussed

at length during the development of Amendment 10. This time period was

rejected under Amendment 10 because the shorter time period did not

account adequately for historical participation in the fishery when

summer flounder were more abundant and generally more available to the

fishery along the entire coast. In light of the deficiencies noted in

the alternatives, the Council and Commission decided to maintain the

current state-by-state system.

Given that the Council and Commission thoroughly considered these

proposed alternatives before proposing to retain the state-by-state

allocation system and that the Council's actions were determined to be

consistent with the Magnuson-Stevens Fishery Conservation and

Management Act (Magnuson-Stevens Act), the national standards, and

other applicable laws, NMFS could find no compelling justification for

any action other than what was approved in Amendment 10.

Since the approved commercial quota allocation system complies with

the Magnuson-Stevens Act and other applicable laws, NMFS believes that

any changes to the allocation system are better handled through the FMP

amendment process, which affords all members of the affected public an

opportunity to comment on proposed measures. Connecticut participated

in the Amendment 10 process as a member of the Commission but was not

able to convince the Council or the Commission to make the modification

it advocates.

In October 1997, the Commission attempted again to address the

issue of different minimum fish sizes in various states over past

years. The Commission conducted public hearings on a proposed

Commission amendment (Amendment 11) in October 1997. Amendment 11

contained an analysis that would be used to redistribute the quota

among the states. The redistribution would have been achieved for 1998

through the quota transfer provision already contained in the FMP. The

Commission Board disapproved Amendment 11 during the annual meeting

held on October 20-23, 1997. The disapproval noted that ``the Board

could find no compromise sufficient to resolve the many regional

differences invoked by this Amendment.''

Comments and Responses

A total of 74 letters; including 1 letter from the Commonwealth of

Massachusetts, 1 letter from the State of New Hampshire, 1 letter from

the State of Connecticut, 1 cosigned letter from Connecticut senators

and from one representative, 1 letter from the Southern New England

Fishermen's and Lobstermen's Association, and 33 individual form

letters and 36 individual form postcards were received during the

comment period for this action, which ended on August 1, 1997. Several

of the letters contained comments on the FMP in general or offered

suggestions for future management that are not within the scope of this

action. Only comments relevant to the proposed petition for rulemaking

that were received by NMFS prior to the close of business on the date

specified as the close of comments were considered for this action.

Comment: The State of New Hampshire, the Commonwealth of

Massachusetts, and several individuals support the petition. New

Hampshire specifically agreed with Connecticut's point in the petition

regarding the inequities in state quota shares based on historical

summer flounder landings because some states had smaller minimum fish

sizes than those implemented by Connecticut and by other states during

the base period 1980-89. Connecticut Senators Lieberman and Dodd and

Representative Gejdenson also feel that the current quota system did

not take into consideration the stricter conservation requirements in

some states, including in Connecticut. New Hampshire feels that the

current system is flawed and in need of correction.

Response: NMFS believes the Council addressed the minimum fish size

issue clearly in Amendment 10 to the FMP. The Council explained that

landings data reflect minimum size regulations implemented in each of

the states. Landings do not reflect the actual sizes of fish available

to the gear, caught by commercial fishermen, and discarded dead.

Hypothetically speaking, if more restrictive minimum size regulations

had been implemented in southern states during those years, more fish

would have been discarded dead and there would have been increased

pressure on, and increased landings of, larger fish. As such, the

availability of larger fish to the northern states could have been

reduced. Consequently, the landings in the northern states could have

been reduced. In reality, the fact that some northern states had a

larger minimum size than some southern states reflects that fewer fish

smaller than that length had been traditionally available to commercial

fishermen in the northern states.

Comment: Connecticut Senators Lieberman and Dodd and Representative

Gejdenson support a coastwide quota and uniform landing limits, as

described in the petition.

Response: As with the response to the comment above, NMFS believes

the Council addressed the coastwide quota and uniform trip limits issue

clearly in Amendment 10 to the FMP. The Council and Commission

determined, and NMFS agrees, that a coastwide quota would not provide

the flexibility afforded under the state-by-state system. Since the

inception of the current system, state personnel have developed and

refined management systems to account for seasonal variations in

abundance, as well as in the vessels that harvest summer flounder. In

addition, the Council and Commission noted, and NMFS agrees, that it

would be difficult to design a coastwide system that provides for an

equitable distribution between the northern and southern participants,

as well as between the smaller day boats and the larger offshore

vessels. Uniform landing limits, it was noted, may not be suitable for

all vessels, gears, or areas. For these reasons, the Council and

Commission concluded that the coastwide systems proposed in Amendment

10, and again proposed by this petition, were found to not provide the

same level of equity to all user groups and areas as the existing quota

allocation system.

[[Page 2653]]

Comment: The Commonwealth of Massachusetts commented that, since

the commercial quota allocation and management regimes for the related

fisheries of summer flounder, scup, and black sea bass are all

different, the state-by-state allocation system for summer flounder

discriminates between residents of different states and violates

national standard 4.

Response: That three fisheries have different allocation systems

does not mean that one is discriminatory. Each system was implemented

through an FMP amendment that was found consistent with all of the

national standards. NMFS notes that to recognize the varying levels of

historical participation in each of the states is not inherently

discriminatory. Because each state participated in a fishery to varying

degrees, each state receives a different portion of the whole,

reflecting its relative level of historical participation. The same

basis for distribution is employed for all states. Thus, there is no

discrimination between residents of different states.

Comment: The State of Connecticut feels that the current commercial

quota management system violates (1) national standard 1 (overfishing)

because it has not prevented overfishing, (2) national standard 5

(efficiency) because it does not consider efficiency in the utilization

of the resource, (3) national standard 7 (minimize costs) because it

fails to minimize costs, and (4) national standard 10 (safety at sea)

because fishermen travel to states with the most favorable trip limit,

increasing the risk of mishap or disaster at sea. The Commonwealth of

Massachusetts also feels that the current state-specific commercial

quota system violates national standard 1 because it has been

unsuccessful in reducing fishing mortality although it has been

implemented for 5 years. Massachusetts urges NMFS to develop the

regulations suggested in the petition since, as the current system has

not reduced fishing mortality, quotas are likely to get smaller.

Lastly, Massachusetts notes that the current system forces fishermen to

travel to ports that are open to landings or that have higher trip

limits, therefore increasing the risk to vessel and life at sea, in

violation of national standard 10 and negatively impacting New England

ports, which lose those landings while other ports benefit from them.

Response: Since Amendment 10 to the FMP contemplated alternatives

to the commercial quota allocation method, the Council was required to

review all alternatives for consistency with the national standards. As

with the minimum fish size issue, NMFS believes the Council addressed

this issue adequately and clearly in that document. The points of those

discussions are reiterated here.

National standard 1 - The most recent stock assessment, completed

in August 1997, indicates that the summer flounder stock is at a medium

level of historical (1968-96) abundance and is overexploited. The

fishing mortality rate (F) estimated for 1996 was 1.0 (an exploitation

rate of 58 percent). While this estimate of fishing mortality is above

the overfishing definition (Fmax = 0.24), it is

significantly below the peak fishing mortality rate estimated for 1992

(F = 2.1). More importantly, the spawning stock biomass estimate for

1996 indicated the highest level since 1983. Additionally, the age

structure is improving, with 34 percent of the biomass age 2 and older

in 1996, compared with 17 percent in 1992. The size of the stock older

than age 2 is an important indicator of the stock health, as it may

reflect more accurately the number of successful spawners. While the

stock is showing signs of improvement, the improvement is not occurring

at as high a rate as anticipated by managers. NMFS notes that quota

overages and unaccounted for mortality (underreporting and/or discard)

are more likely to explain the slow recovery than the manner in which

the quota is allocated. Overall, the management scheme is allowing a

stock rebuilding and a progression toward an end of overfishing.

National standard 5 - The Council and Commission have developed a

system that is intended to operate at the lowest possible cost with

regard to effort, administration, and enforcement, given the objectives

of the FMP. NMFS has determined that the state-by-state allocation

system makes efficient use of fishery resources and is, therefore,

consistent with national standard 5.

National standard 7 - Amendment 10, a joint document from both the

Council and Commission, contains management measures that will be

implemented by the Commission as part of its interstate management

process. These measures, called compliance criteria, include a

requirement that states document all summer flounder commercial

landings in their states. This will aid in the elimination of double

counting of any landings and, therefore, help keep enforcement costs

down, as much effort is spent tracking down landings in order to

maintain the integrity of the quota. Such costs are independent of the

allocation system. Under any other scenario proposed in this petition,

costs are still incurred with regard to quota monitoring, enforcement

of trip limits, and seasons.

National standard 10 - The state-by-state quota allocation system

for summer flounder is not inconsistent with national standard 10. Many

of the New England vessels are permitted to land in neighboring states.

These and other vessels have traditionally traveled long distances to

fish for and land summer flounder, so risks at sea cannot be ascribed

solely to behavior resulting from a state-by-state quota allocation.

The state-by- state quota system does not require a vessel to travel to

distant ports, and an individual vessel operator must weigh the

benefits of landing in a distant port versus the costs associated with

that travel with regard to steaming time, fuel consumption, weather,

and other factors.

Comment: Connecticut's petition stated that, should the alternative

embracing a state-by-state summer allocation be implemented, the

percent shares for each state should be based upon landings data for

the period 1990 through 1992.

Response: When the quota allocation system was developed, the

Council and Commission reviewed the history of the fishery and

recommended a 10-year time frame as the appropriate historical period

upon which quotas would be based. This decision was discussed

thoroughly. While proposals were made to shorten the period to as

little as 3 years, it was recognized that short-term variations in

landings did occur and that quotas based on a short time series would

penalize one segment of the fishery while granting others what was

considered an excessive share. The states, through the Commission,

approved the 10-year time period and the method of allocating the

quota.

Comment: One form letter requests the Secretary to use his office

to assure that Council plans comply with the requirements of the

Magnuson-Stevens Act which, the letter states, the plans do not

currently do.

Response: The Magnuson-Stevens Act requires that any management

plan prepared, and any regulation promulgated to implement any such

plan, shall be consistent with the 10 national standards for fishery

conservation and management, other provisions of the Magnuson-Stevens

Act, and other applicable laws. Indeed, any Council regulatory

submission adopted by NMFS has been thoroughly reviewed for its

consistency with every applicable legal requirement. There is no

exception to this requirement.

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

[[Page 2654]]

Dated: January 9, 1998.

David L. Evans,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

[FR Doc. 98-1154 Filed 1-15-98; 8:45 am]

BILLING CODE 3510-22-F