[Federal Register Volume 65, Number 149 (Wednesday, August 2, 2000)]
[Rules and Regulations]
[Pages 47648-47651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19650]



[[Page 47647]]

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Part V





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 648



Fisheries of the Northeastern United States; Summer Flounder, Scup, and 
Black Sea Bass Fisheries; Emergency for the Summer Flounder Fishery; 
Final Rule

  Federal Register / Vol. 65, No. 149 / Wednesday, August 2, 2000 / 
Rules and Regulations  

[[Page 47648]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 000727220-0220-01; I.D. 072400A]
RIN 0648-AO32


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; Emergency for the Summer Flounder 
Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Emergency interim rule; request for comments.

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SUMMARY: NMFS amends the Summer Flounder, Scup, and Black Sea Bass 
Fishery Management Plan (FMP) and its implementing regulations to 
revise the objective to be achieved by the annual specifications for 
the 2001 summer flounder fishery from obtaining a fishing mortality 
rate (F) target to obtaining a biomass (B) target and to require that, 
if a 2000 state summer flounder commercial quota allocation is not 
fully harvested, the underage be added to that state's 2001 allocation. 
The intent of this action is to comply with a decision issued on April 
25, 2000, by the United States Court of Appeals for the District of 
Columbia Circuit (Court) and to protect the summer flounder stock from 
overfishing.

DATES: This emergency interim rule is effective from August 2, 2000, 
through January 29, 2001. Comments must be received no later than 5 
p.m. EDT September 1, 2000.

ADDRESSES: Copies of the Regulatory Impact Review are available from 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, One Blackburn Drive, Gloucester, MA 01930-2298. Written 
comments on this emergency interim rule should be sent to Patricia A. 
Kurkul at the same address. Comments may also be sent via facsimile 
(fax) to (978)281-9135. Comments will not be accepted if submitted via 
e-mail or the Internet.

FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy 
Analyst, phone (978)281-9221; fax (978)281-9135; e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The summer flounder fishery is managed jointly by the Mid-Atlantic 
Fishery Management Council (Council) and the Atlantic States Marine 
Fisheries Commission (Commission). The summer flounder stock is 
currently overfished. The regulations implementing the FMP, at 
Sec. 648.100, outline the process for specifying annually the catch 
limits for the commercial and recreational fisheries, as well as other 
management measures (e.g., mesh requirements, minimum fish sizes, 
season, and area restrictions) intended to achieve the annual F target 
set forth in the FMP.
    On April 25, 2000, the Court issued an opinion on a challenge to 
the 1999 summer flounder specifications brought by a number of 
environmental groups. The Court remanded the 1999 summer flounder total 
quota (as specified by commercial and recreational harvest limits) to 
NMFS ``for further proceedings consistent with [the] opinion.'' The 
opinion found that (1) priority must be given to conservation measures, 
and, only when two different plans achieve similar conservation goals, 
may the agency consider adverse economic consequences, (2) management 
measures must provide at least a 50-percent probability of achieving 
the target reference point, and (3) reliance on conservation measures 
without quantified benefits is not acceptable to supplement an 
insufficient quota recommendation. The 1999 total quota, when adopted, 
relied on unquantified factors that were found insufficient by the 
Court to supplement the quantified 18-percent likelihood of meeting the 
conservation goals of the FMP.
    In setting the 2000 total quota, unquantified factors were also 
relied upon to supplement the 25-percent quantified likelihood of not 
exceeding the conservation goal. NMFS published final specifications 
for the 2000 summer flounder fishery on May 24, 2000 (65 FR 33486). In 
that final rule, NMFS stated that it intended to revise the 2000 summer 
flounder total quota by August 1, 2000, to set it at a level with at 
least a 50-percent probability of not exceeding the F target as 
required by the Court's decision.
    After reviewing the best available information on the status of the 
summer flounder stock, and to comply with the Court's decision, NMFS is 
taking, through this emergency interim rule, an action that differs 
from that anticipated in the May 24, 2000, final rule. This action 
establishes a clearer standard to be met in setting the 2001 summer 
flounder specifications. Specifically, NMFS is establishing a 
requirement that the 2001 total quota be set at a level that will 
achieve, with at least a 50-percent probability, the biomass level that 
would have been achieved at the end of 2001 if the F target had been 
met in 1999 and 2000 and would have been met in 2001, provided that the 
resultant F does not exceed the F that results in maximum yield per 
recruit (Fmax). This requirement will compensate for the 
failure of the specifications to achieve the FMP's F target in 1999 
and, based on preliminary analysis, in 2000 and put the rebuilding 
program for summer flounder back on schedule.
    The results of an updated assessment of the summer flounder stock 
peer reviewed in June 2000 will be available in August. The new 
assessment will provide the best available scientific data on the 
summer flounder stock, including updated estimates of F and stock 
biomass. The new assessment will be used to make the necessary 
projections for the 2001 specifications.
    The fishing year for summer flounder began January 1, 2000. Many 
states have already harvested a significant portion of their commercial 
allocation, and approximately 75 percent of the coastwide recreational 
fishery will be concluded by the end of August. It would, thus, be 
impracticable, if not impossible, for all of the affected states to 
implement needed management measures to respond to a mid-year 
adjustment in 2000. In many cases, states' commercial fisheries would 
immediately close as a result of such an inseason change, thus 
increasing summer flounder discards. However, this action does contain 
a measure that will encourage efforts by the states to reduce the 
commercial harvest for the remainder of this year. This measure is a 
provision to credit the underharvest of the 2000 commercial quota by 
individual states. Underages for a state in 2000 would be applied to 
that state's 2001 allocation and may, thus, reduce the impacts on the 
commercial sector in those states in that year. However, as noted in 
the final specifications, adjustments to the 2000 specifications for 
overages in the 1999 allocation of quota published in that rule were 
preliminary and subject to change. NMFS will adjust for any additional 
overages that are identified as those data become final. NMFS will 
publish those adjustments in the Federal Register as required by the 
FMP.
    A similar overage and underage mechanism is not being established 
for the recreational fishery. Although data collected by the Marine 
Recreational Fisheries Statistics Survey are used to

[[Page 47649]]

estimate the annual recreational harvest of summer flounder, the use of 
those data to make deductions from the recreational harvest limit for 
the following year may result in annual quota changes reflective of 
inter-annual variability in the survey results rather than in actual 
landings.
    Preliminary analyses based on the new stock assessment indicate at 
this time that the B quota would be 67,500 mt. A total quota with a 50-
percent probability of achieving that target at the end of 2001 would 
be approximately 17.91 million lb (8,125 mt); the total quota with a 
60-percent probability would be approximately 17.37 million lb (7,881 
mt); and the total quota with a 75-percent probability would be 
approximately 16.57 million lb (7,515 mt). In the annual specification 
process for the 2001 fishing year, the Council will use the final 
assessment results to estimate what the biomass level would have been, 
had the F targets in 1999 and 2000 been achieved. The total summer 
flounder quota for 2001 will be set at a level that is expected to 
result in that biomass at the end of 2001. The total quota selected 
must have at least a 50-percent probability of achieving the required B 
target. The total quota will be allocated 60 percent to the commercial 
sector and 40 percent to the recreational sector, as currently 
specified in the FMP. Landings in excess of a state's commercial 
allocation will be deducted from that state's allocation in 2001.
    In addition, this rule establishes a new provision that requires 
any the underharvest of an individual state's commercial quota in 2000 
to be applied to the final specifications for 2001 for that state. The 
overage and underage adjustments will be made when final 2000 landings 
have been enumerated.

Classification

    This emergency rule has been determined to be not significant for 
purposes of E.O. 12866.
    Providing prior notice and opportunity for comment would be 
contrary to the public interest because the framework established by 
this rule must be in place before the August meetings of the technical 
Monitoring Committee and Council so that the Committee and Council may 
recommend specifications for the 2001 fisheries that address the Court 
decision and are timely. Delay in instituting the framework would 
translate into a delay in setting the 2001 specifications and into a 
delay in addressing the Court decision in an equitable manner for the 
different states involved. Therefore, the Assistant Administrator for 
Fisheries, NOAA (AA), finds good cause under 5 U.S.C. 553(b)(B) to 
waive the requirement for prior notice and opportunity for comment.
    Also, providing a 30-day delay in the effective date of this rule 
is unnecessary, because this rule merely establishes a framework 
designed to guide the Committee and Council in the specification 
process for the 2001 fishery and does not impose requirements on 
members of the public with which they have to comply. Therefore, the AA 
finds good cause under 5 U.S.C. 553(d)(3) not to delay for 30 days the 
effective date of this rule.
    The President has directed Federal agencies to use plain language 
in their communications with the public, including regulations. To 
comply with this directive, we seek public comment on any ambiguity or 
unnecessary complexity arising from the language used in this final 
rule.
    This emergency rule is exempt from the analytical requirements of 
the Regulatory Flexibility Act because prior notice and comment is not 
required by 5 U.S.C. 553 or any other law.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: July 31, 2000.
Penelope D. Dalton,
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. 648.100, paragraphs (a) through (e) are suspended, and 
paragraphs (f) through (j) are added to read as follows:


Sec. 648.100  Catch quotas and other restrictions.

* * * * *
    (f) Annual review for the 2001 measures. The Summer Flounder 
Monitoring Committee shall review the following data on or before 
August 15, 2000, to determine the biomass level that would have 
resulted in 2001 (B2001), assuming the target fishing 
mortality rate (F) been achieved in 1999 and 2000 and would be achieved 
in 2001, provided that the resultant F does not exceed Fmax. 
The Summer Flounder Monitoring Committee shall also review the 
following data to determine the allowable levels of fishing and other 
restrictions necessary in 2001 to accomplish, with at least a 50-
percent probability of success, the specified B2001 by the 
end of 2001: Commercial and recreational catch data; current estimates 
of fishing mortality; stock status; recent estimates of recruitment; 
virtual population analysis results; levels of noncompliance by 
fishermen or individual states; impact of size/mesh regulations; sea 
sampling and winter trawl survey data or, if sea sampling data are 
unavailable, length frequency information from the winter trawl survey 
and mesh selectivity analyses; impact of gear other than otter trawls 
on the mortality of summer flounder; and any other relevant 
information.
    (g) Recommended measures for 2001. Based on the review outlined in 
paragraph (f) of this section, the Summer Flounder Monitoring Committee 
shall recommend to the Demersal Species Committee of the MAFMC and the 
Commission the following measures to assure that the B2001 
is achieved with at least a 50-percent probability of success:
    (1) Commercial quota set from a range of 0 to the maximum allowed 
to achieve the specified B2001.
    (2) Commercial minimum fish size.
    (3) Minimum mesh size.
    (4) Recreational possession limit set from a range of 0 to 15 
summer flounder to achieve the specified B2001.
    (5) Recreational minimum fish size.
    (6) Recreational season.
    (7) Restrictions on gear other than otter trawls.
    (8) Adjustments to the exempted area boundary and season specified 
in Sec. 648.104(b)(1) by 30-minute intervals of latitude and longitude 
and 2-week intervals, respectively, based on data specified in 
paragraph (f) of this section to prevent discarding of sublegal sized 
summer flounder in excess of 10 percent, by weight.
    (h) Annual fishing measures for 2001. The Demersal Species 
Committee shall review the recommendations of the Summer Flounder 
Monitoring Committee. Based on these recommendations and any public 
comment, the Demersal Species Committee shall recommend to the MAFMC 
measures necessary to assure, with at least a 50-percent probability of 
success, that B2001 will be achieved. The MAFMC shall review 
these recommendations and, based on the recommendations and any public 
comment, recommend to the Regional Administrator measures necessary to 
assure, with at least a 50-percent probability of success, that 
B2001 will be achieved. The MAFMC's recommendations must 
include supporting documentation, as appropriate, concerning the

[[Page 47650]]

environmental and economic impacts of the recommendations. The Regional 
Administrator shall review these recommendations and any 
recommendations of the Commission. After such review, the Regional 
Administrator will publish a proposed rule in the Federal Register by 
October 15 to implement a coastwide commercial quota and recreational 
harvest limit and additional management measures for the commercial 
fishery, and will publish a proposed rule in the Federal Register by 
February 15 to implement additional management measures for the 
recreational fishery, if he/she determines that such measures are 
necessary to assure, with at least a 50-percent probability of success, 
that B2001 will be achieved. After considering public 
comment, the Regional Administrator will publish a final rule in the 
Federal Register to implement the measures necessary to assure, with at 
least a 50-percent probability of success, that B2001 will 
be achieved.
    (i) Distribution of the annual quota for 2001. (1) The annual 
commercial quota for 2001 will be distributed to the states, based upon 
the following percentages:

                     ANNUAL COMMERCIAL QUOTA SHARES
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                        State                           Share (percent)
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Maine................................................            0.04756
New Hampshire........................................            0.00046
Massachusetts........................................            6.82046
Rhode Island.........................................           15.68298
Connecticut..........................................            2.25708
New York.............................................            7.64699
New Jersey...........................................           16.72499
Delaware.............................................            0.01779
Maryland.............................................            2.03910
Virginia.............................................           21.31676
North Carolina.......................................           27.44584
------------------------------------------------------------------------

    (2) All summer flounder landed for sale in a state shall be applied 
against that state's annual commercial quota, regardless of where the 
summer flounder were harvested. Any overages of the commercial quota 
landed in any state will be deducted from that state's annual quota for 
the following year. If landings in any state implementing a commercial 
quota for the year 2000 are less than that state's allocation, the 
amount of the unharvested quota (i.e., quota underage), will be added 
to that state's 2001 allocation of commercial quota.
    (j) Quota transfers and combinations. Any state implementing a 
state commercial quota for summer flounder may request approval from 
the Regional Administrator to transfer part or all of its annual quota 
to one or more states. Two or more states implementing a state 
commercial quota for summer flounder 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 summer flounder must be made by 
individual or joint letter(s) signed by the principal state official 
with marine fishery management responsibility and expertise, or his/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 annual 
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 FMP and Magnuson-Stevens Act.
    (2) The transfer of quota or the combination of quotas will be 
valid only for the calendar year for which the request was made and 
will be effective upon the filing by NMFS of a notice of the approval 
of the 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 notice of the approval of the 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 fishing year, the overage will 
be deducted from the following year'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 year. If there is a quota underage among one or more of the 
states involved in the combination of quotas at the end of the 2000 
fishing year, the underage will be added to the 2001 quota for each of 
the states involved in the combined quota. The addition will be 
proportional, based on each state's relative share of the combined 
quota for the previous year. A transfer of quota or combination of 
quotas does not alter any state's percentage share of the overall quota 
specified in paragraph (i) of this section.
    3. In Sec. 648.101, paragraph (a) is suspended and paragraph (c) is 
added to read as follows:


Sec. 648.101  Closures.

* * * * *
    (c) EEZ closure. The Regional Administrator shall close the EEZ to 
fishing for summer flounder by commercial vessels for the remainder of 
the calendar year by publishing notification in the Federal Register if 
he/she determines that the inaction of one or more states will cause 
the biomass target (B2001) identified in Sec. 648.100(f) not 
to be achieved or if the commercial fisheries in all states have been 
closed. The Regional Administrator may reopen the EEZ if earlier 
inaction by a state has been remedied by that state or if commercial 
fisheries in one or more states have been reopened without causing 
B2001 not to be achieved.
    4. In Sec. 648.104, the last sentence of paragraph (c) is suspended 
and paragraph (g) is added to read as follows:


Sec. 648.104  Gear restrictions.

* * * * *
    (g) Net modifications. No vessel subject to this part shall use any 
device, gear, or material, including, but not limited to nets, net 
strengtheners, ropes, lines, or chafing gear, on the top of the 
regulated portion of a trawl net; except that, one splitting strap and 
one bull rope (if present) consisting of line or rope no more than 3 
inches (7.2 cm) in diameter may be used if such splitting strap and/or 
bull rope does not constrict, in any manner, the top of the regulated 
portion of the net, and one rope no greater than 0.75 inches (1.9 cm) 
in diameter extending the length of the net from the belly to the 
terminus of the codend along the top, bottom, and each side of the net. 
``Top of the regulated portion of the net'' means the 50 percent of the 
entire regulated portion of the net that (in a hypothetical situation) 
will not be in contact with the ocean bottom during a tow if the 
regulated portion of the net were laid flat on the ocean floor. For the 
purpose of this paragraph (g), head ropes shall not be considered part 
of the top of the regulated portion of a trawl net. A vessel shall not 
use any means or mesh

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configuration on the top of the regulated portion of the net, as 
defined in paragraph (e) of this section, if it obstructs the meshes of 
the net or otherwise causes the size of the meshes of the net while in 
use to diminish to a size smaller than the minimum specified in 
Sec. 648.104(a).
    5. In Sec. 648.107, paragraphs (a) and (b) are suspended and 
paragraphs (c) and (d) are added to read as follows:


Sec. 648.107  Conservation equivalent measures for the recreational 
summer flounder fishery.

* * * * *
    (c) Through September 5, 2000, states may implement on an annual 
basis conservation equivalent measures that reduce the recreational 
catch to the same extent as the annual Federal summer flounder measures 
specified under Sec. 648.100(h) to achieve the recreational harvest 
limit in any year. These measures would be a different combination of 
minimum fish sizes, possession limits, and closed seasons that are the 
conservation equivalent of those Federal summer flounder measures 
specified on an annual basis.
    (d) A determination of equivalency would be made annually for any 
state proposing alternative recreational measures by the Summer 
Flounder Technical Committee of the Commission. Conservation equivalent 
measures may be implemented by any state without a determination of 
equivalency by the Summer Flounder Technical Committee review, but only 
if states use the state-specific tables provided by the Commission and 
maintain a 15-inch (38-cm) or greater minimum fish size.
    (1) Once a state receives a determination of equivalency from the 
Summer Flounder Technical Committee or a state implements conservation 
equivalent measures contained in the state-specific table provided by 
the Commission, the Commission will recommend to the Regional 
Administrator that a notification be published in the Federal Register 
to waive the annual Federal summer flounder measures specified under 
Sec. 648.100(h) and to notify vessel permit holders of the equivalent 
measures approved by the Summer Flounder Technical Committee for 
landing summer flounder in that state.
    (2) States electing not to implement conservation equivalent 
measures or states that did not receive a determination of equivalency 
from the Summer Flounder Technical Committee and not implementing 
conservation equivalent measures contained in the state-specific table 
provided by the Commission would be required to implement the annual 
Federal summer flounder measures specified under Sec. 648.100(h) in 
accordance with the provisions of the Fishery Management Plan for the 
Summer Flounder, Scup, and Black Sea Bass Fisheries.
[FR Doc. 00-19650 Filed 7-31-00; 12:32 pm]
BILLING CODE 3510-22-F