Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Proposed Rules 49195

(c) * * *

(2) * * *

(i) Fishing with gear as described in

paragraph (a)(2) of this section;

* * * * *

(f) * * *

(2) * * *

(ii) That are fishing with or using

exempted gear as defined under this

part, excluding pelagic gillnet gear

capable of catching multispecies, except

vessels may fish with a single pelagic

gillnet, not longer than 300 ft. (91.44 m)

and not greater than 6 ft (1.83 m.) deep,

with a maximum mesh size of 3 inches

(7.62 cm.), provided the net is fished in

the upper two-thirds of the water

column and is marked with the owners

name and vessel identification number,

and provided there is no other gear on

board capable of catching multispecies

finfish; or

* * * * *

[FR Doc. 97–24812 Filed 9–18–97; 8:45 am]

BILLING CODE 3510–22–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 648

[Docket No. 970908229–7229–01; 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: Proposed rule; request for

comments.

SUMMARY: NMFS issues this proposed

rule to implement the provisions of

proposed Amendment 10 to the Fishery

Management Plan for the Summer

Flounder, Scup, and Black Sea Bass

Fisheries (FMP). Amendment 10 would

revise some of the management

measures in the summer flounder

fisheries and require a number of

corresponding revisions to the

regulations implementing the FMP and

its amendments.

DATES: Public comments must be

received on or before November 3, 1997.

ADDRESSES: Comments on this proposed

rule should be sent to Andrew A.

Rosenberg, Ph.D., Regional

Administrator, Northeast Regional

Office, NMFS, One Blackburn Drive,

Gloucester, MA 01930. Mark the outside

of the envelope, ‘‘Comments on

Amendment 10 Proposed Rule.’’

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:

Regina L. Spallone, Fishery Policy

Analyst, 508–281–9221.

SUPPLEMENTARY INFORMATION:

Background

Proposed 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), soliciting public

comments on Amendment 10 through

November 3, 1997. All comments

received by the end of the comment

period on the proposed amendment,

whether specifically directed to

Amendment 10 or the proposed rule,

will be considered in the approval/

disapproval decision on Amendment

10; comments received after that date

will not be considered in the approval/

disapproval decision of Amendment 10.

Public comments must be received (not

postmarked or otherwise transmitted) by

the close of business on November 3,

1997, to be considered in the approval/

disapproval decision.

Amendment 10 revises the

management measures in the summer

flounder (Paralichthys dentatus) fishery,

pursuant to the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act), as

amended. The management unit

continues to be summer flounder in U.S.

waters in the western Atlantic Ocean

from the southern border of North

Carolina, northward to the U.S./Canada

border.

The regulations implementing the

FMP and its amendments impose a

broad spectrum of measures on the

fishery to stop overfishing and increase

spawning stock biomass. These

measures include minimum mesh size

limits in the otter trawl fishery, a

moratorium on the entry of new vessels

into the commercial fishery, and a total

harvest limit allocated between the

commercial and recreational sectors of

the fishery. The harvest limit for the

commercial sector is allocated as a

quota, apportioned to the states based

on historical landings data. All

commercial landings in a state count

against that state’s quota.

Proposed Amendment 10 would

require a number of changes to the

summer flounder regulations.

Amendment 10 would modify the

commercial minimum mesh size limit,

continue the moratorium on entry of

additional commercial vessels, remove

the landing requirements applicable to

permit retention, modify the vessel

replacement criteria, would allow any

state to be granted de minimus status if

commercial summer flounder landings

during the preceding calendar year were

less than 0.1 percent of the total

coastwide quota, 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 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 compliance criteria, these

management measures are not part of

the Federal regulatory process and are,

therefore, not included in this proposed

rule. Details of these measures are

described in Amendment 10, which is

available from the Council (see

ADDRESSES).

In addition, the Council reevaluated

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 methods,

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 the

current system allows the states the

most flexibility in managing their

quotas, by implementing state subquotas

and trip limits.

After a preliminary 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 appears

arbitrary and capricious. This measure

would require an annual examination of

state landings to determine if landings

in that state during the preceding year

for which data are available were less

than 0.1 percent of the overall annual

quota. If a state met this criterion, it

would be granted de minimus status.

The de minimus measure would impose
49196 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Proposed Rules

an administrative burden or cost to

make this annual determination,

without conferring any demonstrable

administrative or conservation benefit.

This would contravene the requirements

of national standard 7. Also, it is not

clear 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

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 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 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)

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.

As a result of this preliminary review,

NMFS proposes to disapprove the de

minimus measure. Therefore, this

measure is not included in the

regulations proposed for public

comment.

Issue of Concern

NMFS notes that the Council

recommended that May 13, 1997, be the

baseline date for measuring vessel

upgrades at the time of replacement.

The baseline date was not specified

when the Council held public hearings

on Amendment 10, although it is a

necessary adjunct required for the

administration of the replacement

upgrade provision. In order that all

potentially affected fishery participants

have equal notice of the baseline date,

NMFS is proposing September 19, 1997,

instead of May 13, 1997, as proposed by

the Council.

Proposed Measures

Minimum Mesh Requirement

The minimum mesh size for otter

trawl vessels possessing 100 lb (45.4 kg)

or more of summer flounder between

May 1 and October 31, or 200 lb (90.8

kg) or more of summer flounder

between November 1 and April 30,

would be 5.5–inch (14.0–cm) diamond,

or 6.0–inch (15.2–cm) square, inside

measure, applied throughout the body,

extension(s) and codend of the net.

Under the existing regulations, this

requirement applies to the codend only.

The minimum mesh size requirement

could be changed annually following

the existing Monitoring Committee

process set forth in the FMP. In future

years, the minimum mesh size could be

specified to apply to any portion of the

entire net, including the wings, body,

extension(s), or codend. The Council

and Commission could recommend to

the Administrator, Northeast Region,

NMFS (Regional Administrator), a

delayed implementation date for any

modification to the minimum mesh size

regulations to account for the

availability of net construction

materials. The delay could be for up to

6 months, and would account for

localized shortages in the twine needed

to meet the mesh requirements. The

Council and Commission assessed the

availability of net construction materials

and recommended an effective date for

the revised mesh requirements of 6

months after the date the final

regulations are published in the Federal

Register.

Commercial Moratorium

Amendment 10 would extend

indefinitely the moratorium on the entry

of additional commercial vessels into

the summer flounder fishery in the

exclusive economic zone. Amendment 2

to the FMP instituted the vessel

moratorium in 1993, which

automatically expires December 31,

1997.

Vessel Replacement Criteria

Amendment 10 would permit a vessel

with a moratorium permit to be replaced

by another vessel and its permit

transferred to the new vessel without

having to leave the fishery involuntarily

(e.g., sink or burn), as is currently

required. The replacement vessel could

be upgraded if it met the criteria

specified in the Fishery Management

Plan for the Northeast Multispecies

Fishery: A one-time horsepower

increase that may not exceed 20 percent

of the horsepower of the vessel replaced

and a one-time increase of up to 10

percent in the vessel’s length, gross

registered tons (GRT), and/or net tons

(NT), all of which must be performed at

the same time. This type of upgrade may

be done separately from an engine

horsepower upgrade. Upgrades would

be based on the original vessel’s

specifications as of the effective date of

the final regulations for Amendment 10.

Expiration of the Moratorium Permit

Amendment 10 would remove the

existing provision that requires a vessel

with a moratorium permit to land

summer flounder at least once every 52

weeks to retain the permit. This

regulation was originally intended to

reduce effort on the fishery by

eliminating inactive permits. However,

since implemented in 1993, no permits

have been lost as a result of this

measure and, in fact, the measure may

increase effort as participants fish

merely to retain their permit. Therefore,

the elimination of this measure may

serve to decrease fishing effort.

Transfer of Summer Flounder at Sea

Amendment 10 would prohibit

vessels issued a summer flounder

moratorium permit from transferring or

attempting to transfer any summer

flounder from one vessel to another

vessel. Transfer means to begin to

remove, to remove, to pass over the rail,

or to otherwise take away fish from any

vessel and move them to another vessel.

Currently, there is no such prohibition.

As such, vessels might be able to

circumvent regulations such as trip

limits, and Federal and/or state permit

requirements by transferring fish at sea.

These actions could increase effort in

the summer flounder fishery.

Filleting at Sea

Amendment 10 would allow party/

charter boats to fillet summer flounder

at sea if in possession of a state-issued

permit that allows filleting of summer

flounder at sea and possession of body

parts smaller than the minimum size.

Commercial Quota System

Amendment 10 would not change the

existing commercial quota system.

Currently, the coastwide commercial

quota is allocated to each of the states

from Maine to North Carolina, based on

their share of the commercial landings

from 1980 through 1989.

Technical Changes

In 50 CFR part 648, Fisheries of the

Northeastern United States, the vessel

replacement requirements for the scup,

Illex and Loligo moratorium fisheries are

presently specified by referencing the

vessel replacement requirements for the

summer flounder fishery. As a result,
Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Proposed Rules 49197

any change to the regulatory text for the

vessel replacement requirements for the

summer flounder fishery would result

in a change to the replacement

provisions for those other fisheries.

Since the vessel replacement measures

for these other moratorium fisheries

would not be changed by Amendment

10, the wording in the regulations

would be revised in order to maintain

their current vessel replacement criteria.

That is, the replacement vessel

provisions for the Loligo fishery would

be modified to maintain the original

intent, and the replacement provisions

for the remaining fisheries would be

revised to reference the Loligo

provisions.

Classification

This proposed 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

proposed rule, if adopted, would not

have a significant economic impact on

a substantial number of small entities as

follows.

The proposed rule would implement

Amendment 10 by revising a number of the

regulations implementing the FMP and its

amendments and by adding a number of new

regulations. Specifically, the proposed rule

would modify the commercial minimum

mesh size requirement, continue the

moratorium on entry of additional

commercial vessels, modify the vessel

replacement criteria, remove provisions that

pertain to the expiration of the moratorium

permit, and prohibit 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 would impact

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) would be impacted by

this rule. However, the compliance costs

associated with the measure are not

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 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 measures

would result in no significant economic

impacts on small entities. Additionally,

several provisions, such as 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.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and

recordkeeping requirements.

Dated: September 15, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 648 is proposed

to be amended as follows:

PART 648—FISHERIES OF THE

NORTHEASTERN UNITED STATES

1. The authority citation for part 648

continues to read as follows:

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

2. In § 648.4, paragraph (a)(3)(i)(B)(2)

is removed, 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:

§ 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 [INSERT

EFFECTIVE DATE OF THE FINAL

REGULATIONS].

(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 [INSERT

EFFECTIVE DATE OF THE FINAL

REGULATIONS].

* * * * *

(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 § 648.13, paragraph (d) is added

to read as follows:

§ 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 § 648.14, paragraph (j)(9) is

added to read as follows:

§ 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
49198 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Proposed Rules

flounder permit and fishes exclusively

in state waters.

* * * * *

5. In § 648.103, paragraph (c) is

revised to read as follows:

§ 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 § 648.104, paragraph (a)(1) is

revised, and paragraph (f) is added to

read as follows:

§ 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 § 648.100.

[FR Doc. 97–24922 Filed 9–18–97; 8:45 am]

BILLING CODE 3510–22–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 970829216–7216–01; I.D.

073097B]

RIN 0648-AK15

Fisheries of the Exclusive Economic

Zone Off Alaska; Extension of the

Interim Groundfish Observer Program

through 1998

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS issues a proposed rule

to implement a regulatory amendment

to extend with some minor revisions the

current groundfish observer coverage

requirements and implementing

regulations for the North Pacific

Groundfish Observer Program (Observer

Program) that expire December 31, 1997.

This action is necessary to assure

uninterrupted observer coverage

requirements through 1998. This

proposed rule also provides notice of

proposed changes to observer

qualifications and observer training/

briefing requirements, which are noncodified elements of the Observer

Program. This action is intended to accomplish

the objectives of the Fishery

Management Plan for Groundfish of the

Gulf of Alaska and the Fishery

Management Plan for the Groundfish

Fishery of the Bering Sea and Aleutian

Islands Area (FMPs).

DATES: Comments on the proposed rule

must be received by October 20, 1997.

ADDRESSES: Comments should be sent to

Chief, Fisheries Management Division,

Alaska Region, NMFS, P.O. Box 21668,

Juneau, AK 99802, Attn: Lori J. Gravel,

or delivered to the Federal Building, 709

West 9th Street, Juneau, AK. Copies of

the Environmental Assessment/

Regulatory Impact Review/Final

Regulatory Flexibility Analysis (EA/

RIR/FRFA) prepared for the 1997

Interim Groundfish Observer Program

may be obtained from the Fisheries

Management Division, Alaska Region,

NMFS, P.O. Box 21668, Juneau, AK

99802; telephone: 907–586–7228.

Copies of the Regulatory Impact

Review/Initial Regulatory Flexibility

Analysis(RIR/IRFA) prepared for the

proposed regulatory amendment also

may be obtained from this address.

FOR FURTHER INFORMATION CONTACT: Kim

S. Rivera, 907–586–7228.

SUPPLEMENTARY INFORMATION:

Background

The U.S. groundfish fisheries of the

Gulf of Alaska (GOA) and the Bering Sea

and Aleutian Islands Area in the

Exclusive Economic Zone are managed

by NMFS under the FMPs. The FMPs

were prepared by the North Pacific

Fishery Management Council (Council)

under the Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act) and are

implemented by regulations for the U.S.

fisheries at 50 CFR part 679. General

regulations that also pertain to U.S.

fisheries appear at subpart H of 50 CFR

part 600. In 1996, the Council adopted and

NMFS implemented the Interim

Groundfish Observer Program. The

Interim Groundfish Observer Program

superseded the North Pacific Fisheries

Research Plan and extended the 1996

mandatory groundfish observer

requirements through 1997, unless

superseded by a long-term program that

addresses concerns about observer data

integrity, equitable distribution of

observer coverage costs, and observer

compensation and working conditions.

NMFS continues to pursue a long-term

solution and is developing an

alternative that was supported by the

Council at its June 1997 meeting. The

Council is scheduled to take final action

on a long-term alternative at its

December 1997 meeting. Given that this

alternative cannot be in place by

January 1, 1998, the current interim

program must be extended to assure

uninterrupted observer coverage

requirements.

At its June 1997 meeting, the Council

unanimously requested NMFS to extend

through 1998 the current interim

program, with minor revisions

recommended by NMFS. In addition,

the Council recommended an

adjustment to the existing observer

conflict-of-interest standard that

prohibits a person from serving as an

observer if that person was employed in

a North Pacific fishery during the

previous 12-month period. The Council

recommended a less restrictive standard

that would prohibit an observer from

working on any vessel or at any

shoreside processor owned or operated

by a person who previously employed

the observer during the previous 12-

month period. Public testimony at the

Council meeting indicated that the

current conflict-of-interest standard may

be too restrictive given that the interim

observer program does not address the

issue of an adequate observer

compensation package. Until the

observers are more adequately

compensated, they may need to engage

in non-observer employment in North

Pacific fisheries.

Proposed Regulatory Changes For The

1998 Interim Groundfish Observer

Program

A description of the regulatory

provisions of the Interim Groundfish

Observer Program was provided in the

preambles to the proposed and final

rules implementing this program (61 FR

40380, August 2, 1996; 61 FR 56425,

November 1, 1996). Only minor changes

from the 1997 regulations are being

proposed for 1998. They are described

and justified below.

1. Extend the effective period of 50

CFR 679.50 through December 31, 1998.

The 1-year extension is intended to

encompass the period of time necessary

for NMFS to develop a long-term

program that addresses concerns about