[Federal Register Volume 63, Number 11 (Friday, January 16, 1998)]
[Proposed Rules]
[Pages 2651-2654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1154]


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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 (F<INF>max</INF> = 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