[Federal Register Volume 66, Number 57 (Friday, March 23, 2001)]
[Rules and Regulations]
[Pages 16151-16155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-7266]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

 50 CFR Part 648

[Docket No. 001121328-1066-03; I.D. 111500CB]
RIN 0648-AN71


Fisheries of the Northeastern United States; Summer Flounder 
Fishery; 2001 Specifications

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

ACTION: Final rule, final specifications, and commercial quota 
adjustment.

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SUMMARY: NMFS issues final specifications for the 2001 summer flounder 
fishery and makes preliminary adjustments to the 2001 commercial quotas 
for this fishery. The intent of this action is to comply with 
implementing regulations for the Fishery Management Plan for the Summer 
Flounder Fishery (FMP), which requires NMFS to publish measures for the 
upcoming fishing year that will prevent overfishing of this fishery.

DATES: The 2001 final specifications are effective March 20, 2001, 
through December 31, 2001.

ADDRESSES: Send comments on any ambiguity or unnecessary complexity 
arising from the language used in this final rule to Patricia A. 
Kurkul, Regional Administrator, Northeast Region, National Marine 
Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-2298.
    Copies of supporting documents used by the Summer Flounder 
Monitoring Committee, the Regulatory Impact Review (RIR), the Final 
Regulatory Flexibility Analysis (FRFA) contained within the RIR, and 
the Environmental Assessment (EA) are available from the Northeast 
Regional Office at the same address. The EA/RIR/FRFA is also accessible 
via the Internet at http://www.nero.nmfs.gov/ro/doc/nr.htm.

FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, Fishery Policy 
Analyst, (978)281-9279, fax (978)281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

[[Page 16152]]

Background

    The FMP was developed jointly by the Atlantic States Marine 
Fisheries Commission (Commission) and the Mid-Atlantic Fishery 
Management Council (Council) in consultation with the New England and 
South Atlantic Fishery Management Councils. The management unit 
specified in the FMP is summer flounder (Paralichthys dentatus) in U.S. 
waters of the Atlantic Ocean from the southern border of North Carolina 
northward to the U.S./Canadian border. Implementing regulations for 
this fishery are found at 50 CFR part 648, subparts A and G.
    Pursuant to Sec.  648.100, the Administrator, Northeast Region, 
NMFS, (Regional Administrator) implements measures for the fishing year 
to assure that the 2001 biomass target (B2001) for this fishery is 
achieved. The biomass target and management measures are summarized 
below. Detailed background information regarding the status of the 
summer flounder stock and the development of the proposed 
specifications were provided in the proposed specifications for the 
2001 summer flounder, scup and black sea bass fisheries (65 FR 71042, 
November 28, 2000), and is not repeated here. Final specifications for 
the scup and black sea bass fisheries were published at 66 FR 12902, 
March 1, 2001. NMFS will publish a proposed and final rule for the 2001 
recreational management measures for the summer flounder fishery in the 
Federal Register at a later date.

Summer Flounder

    In order to comply with a Court Order issued by the U.S. Court of 
Appeals for the District of Columbia on April 25, 2000, NMFS 
implemented an emergency interim rule on August 2, 2000 (65 FR 47648), 
temporarily amending the FMP and the regulations that establish the 
target to be achieved by the 2001 total allowable landings (TAL) for 
summer flounder. The emergency interim rule established a biomass 
target for 2001, rather than the F target specified in the FMP. 
Further, the emergency interim rule requires 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 targets had been met in 1999 and 2000, and would be 
met in 2001. The emergency interim rule was effective through January 
29, 2001, and was extended for 180 days at 66 FR 8091, January 29, 
2001, until July 28, 2001.
    As indicated in the emergency interim regulations, the most recent 
stock assessment specified a biomass target of 148.8 million lb (67.5 
million kg) by December 31, 2001. The biomass target was calculated 
using the results of the summer flounder stock assessment completed by 
the 31st Stock Assessment Review Committee Consensus Summary of 
Assessment (SARC 31) in June 2000. A summary of the summary flounder 
stock assessment was provided in the proposed rule for the 2001 
specifications and is not repeated here.
    The Summer Flounder Monitoring Committee reviewed the stock status 
and projections to meet the biomass target based on these data and 
recommended a 17.91-million lb (8.125-million kg) TAL for 2001, which 
would be divided into a commercial quota of 10.75 million lb (4.877 
million kg) and a recreational harvest limit of 7.16 million lb (3.248 
million kg). The Council adopted these recommendations, and this final 
rule implements them, because they are consistent with the emergency 
interim rule. Based on the current status of the stock and assuming the 
F targets in 1999 and 2000 have been achieved, this level has a 50-
percent probability of achieving the 2001 biomass target of 148.8 
million lb (6,751 mt).
    Although the Council and the Commission's Summer Flounder Board 
(Board) met jointly, the Board declined to adopt the Council's 2001 TAL 
recommendation for summer flounder at its August 2000 meeting. The 
Board later adopted a 2001 summer flounder TAL of 20.5 million lb 
(9.298 million kg) on November 29, 2000, on the basis that this TAL is 
consistent with the F target in the Commission's Interstate FMP.
    The Commission has voluntary measures in place to decrease discards 
of sublegal fish in the commercial fishery, as well as to reduce 
regulatory discards occurring as a result of landing limits in the 
states. The Commission established a system whereby 15 percent of each 
state's quota could be voluntarily set aside each year for vessels to 
land an incidental catch allowance (implemented as trip limits) after 
the directed fishery has been closed. Table 3 in the preamble of the 
proposed rule showed the 15-percent set-aside for each state.
    This final rule implements the following summer flounder measures 
for 2001: (1) A TAL of 17.91 million lb (8.125 million kg); (2) a 
coastwide commercial quota of 10.75 million lb (4.877 million kg); and 
(3) a coastwide recreational harvest limit of 7.16 million lb (3.248 
million kg). The preliminary final commercial quotas, by state, for 
2001 are presented in Table 1 of this document.
    Section 648.100(d)(2) provides that all landings of summer flounder 
for sale in a state shall be applied against that state's annual 
commercial quota. Any landings in excess of a state's commercial quota 
allocation in 1 year must be deducted from that state's annual quota 
allocation for the following year. The emergency interim rule 
established a provision for the specification of quotas in 2001 whereby 
any under-harvest of an individual state's summer flounder commercial 
quota in 2000 would be applied to the final 2001 specifications for 
that state. This temporary measure was enacted because NMFS expected 
that some states might have been prompted by the Court Order to reduce 
commercial harvests prior to the implementation of the emergency 
measures. Therefore, the measure was established to avoid penalizing 
states for their precautionary action. This final rule contains: (1) 
Final specifications, and (2) associated preliminary adjustments to 
each state's 2001 quotas as a result of known 2000 overages or 
underages. The adjustments made in this final rule are preliminary 
because it is likely that additional data will be received from the 
states that will alter the figures, including late landings reported 
from either federally permitted dealers or state statistical agencies 
reporting landings by non-federally permitted dealers. This document 
utilizes preliminary 2000 commercial landings data that have been 
provided to NMFS through March 19, 2001.
    Based on dealer reports and other available information, NMFS has 
determined that the States of Maine, Massachusetts, New York, New 
Jersey, Delaware, Maryland, and North Carolina exceeded their 2000 
quotas. Thus far, the remaining States of New Hampshire, Rhode Island, 
Connecticut, and Virginia are not known to have exceeded their 2000 
quotas. The preliminary 2000 landings and resulting overages for all 
states are given in Table 2 of this document. The resulting adjusted 
2001 commercial quota for each state is given in Table 3 of this 
document.

[[Page 16153]]



                                         Table 1. Preliminary Final 2001 Summer Flounder State Commercial Quotas
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                             State                                      Percent Share                      lb                           kg\1\
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ME                                                                                   0.04756                         5,112                         2,319
NH                                                                                   0.00046                            49                            22
MA                                                                                   6.82046                       733,031                       332,497
RI                                                                                  15.68298                     1,685,534                       764,545
CT                                                                                   2.25708                       242,580                       110,032
NY                                                                                   7.64699                       821,863                       372,791
NJ                                                                                  16.72499                     1,797,524                       815,343
DE                                                                                   0.01779                         1,912                           867
MD                                                                                   2.03910                       219,153                        99,406
VA                                                                                  21.31676                     2,291,026                     1,039,192
NC                                                                                  27.44584                     2,949,751                     1,337,985
ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½
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\1\Kilograms are as converted from pounds and may not add to the converted total due to rounding.


                                              Table 2. Summer Flounder Preliminary 2000 Landings by State.
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                                                    2000 Quota\1\                   Preliminary 2000 landings          2000 Overages and Underages\3\
                 State                 -----------------------------------------------------------------------------------------------------------------
                                                lb               kg\2\                lb               kg\2\                lb               kg\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME                                                  3,956              1,794              6,922              3,140              2,966              1,345
NH                                                     51                 23                  0                  0            (51)\3\            (23)\3\
MA                                                703,136            318,937            790,504            358,566             87,368             39,629
RI                                              1,742,566            790,415          1,694,283            768,514        (48,283)\3\        (21,901)\3\
CT                                                244,085            110,715            239,628            108,693         (4,457)\3\         (2,022)\3\
NY                                                849,672            385,405            873,984            396,432             24,312             11,028
NJ                                              1,794,299            813,880          2,153,632            973,793            359,333            162,991
DE                                            (31,303)\4\        (14,199)\4\             12,317              5,587             43,620             19,786
MD                                                226,568            102,770            261,207            118,481             34,639             15,712
VA                                              2,293,410          1,040,273          2,226,192          1,009,784        (67,218)\3\        (30,489)\3\
NC                                              3,049,560          1,383,257          3,347,841          1,518,555            298,281            135,298
ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½
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\1\Reflects quotas as published on December 29, 2000 (65 FR 82945).
\2\Kilograms as converted from pounds and may not add to the converted total due to rounding.
\3\Numbers in parentheses are underages.
\4\ Parentheses indicate a negative number.


                                                   Table 3. Summer Flounder Final 2001 Adjusted Quotas
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                                                                     2001 Initial quota                                2001 Adjusted quota
                        State                        ---------------------------------------------------------------------------------------------------
                                                                 lb                     kg\1\                      lb                     kg\1\
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ME                                                                      5,112                    2,319                    2,146                      973
NH                                                                         49                       22                      100                       45
MA                                                                    733,031                  332,497                  645,663                  292,868
RI                                                                  1,685,534                  764,545                1,733,817                  786,446
CT                                                                    242,580                  110,032                  247,037                  112,054
NY                                                                    821,863                  372,791                  797,551                  361,763
NJ                                                                  1,797,524                  815,343                1,438,191                  652,352
DE                                                                      1,912                      867                 (41,708)                 (18,918)
MD                                                                    219,153                   99,406                  184,514                   83,694
VA                                                                  2,291,026                1,039,192                2,358,244                1,069,681
NC                                                                  2,949,751                1,337,985                2,651,470                1,202,687
ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Parentheses indicate a negative number.
\1\Kilograms are as converted from pounds and may not add to the converted total due to rounding.
\2\Total accounts for DE as zero. Kilograms are as converted from pounds and may not add to the converted total due to rounding.

Comments and Responses

    Five comments on the proposed rule were received regarding the 
summer flounder measures, primarily from fishing industry participants 
and organizations representing the commercial fishing industry. A co-
signed document was submitted by a group of environmental 
organizations. All comments received prior to the close of the comment 
period that directly related to the measures in the proposed rule were 
considered in developing the measures contained in this final rule.
    Comment 1: Four commenters stated that they were opposed to the 
proposed summer flounder TAL because, in their view, it is too low and 
will continue to

[[Page 16154]]

waste the resource due to regulatory discards.
    Response: The summer flounder TAL being implemented by NMFS in this 
final rule has been developed through the FMP's procedures for 
establishing annual specifications and is consistent with the 
provisions of the FMP and an emergency interim rule implemented by NMFS 
on August 2, 2000. This emergency interim rule was published in 
response to a Court Order issued on April 25, 2000, and is intended to 
provide at least a 50-percent probability of attaining the stock 
biomass level by the end of 2001 that was contemplated by the FMP's 
rebuilding schedule. To set the TAL at a higher level would not ensure 
at least a 50-percent probability of the achieving the target biomass, 
causing NMFS to not meet its legal obligation.
    Comment 2: The environmental organizations who are parties to a 
Settlement Agreement with NMFS, which was negotiated to conclude the 
NRDC v. Daley lawsuit challenging the 2000 summer flounder quota, and 
respond to a Court Order issued by the U.S. Court of Appeals for the 
District of Columbia on April 25, 2000, commented that NMFS should 
revise the 2001 summer flounder TAL of 17.91 million lb (8.12 million 
kg) downward, or adopt additional conservation measures in response to 
two developments: The Commission's adoption of a 2001 summer flounder 
TAL of 20.5 million lb (9.29 million kg), and a substantial 
recreational overage projected for the 2000 fishing year.
    Response: NMFS is currently considering whether any action is 
necessary based on these two developments. Any action taken by NMFS to 
reduce the TAL could not prevent a harvest of summer flounder in excess 
of the reduced quota, because non-federally permitted vessels and 
recreational fisheries in state waters are capable of taking the 
Commission's higher TAL.
    The procedure used by the Council and NMFS since quota management 
was established in 1993 has never compensated in subsequent years for 
recreational landings in excess of recreational harvest limits. To 
date, NMFS has not factored into a final TAL specification projected 
recreational landings from the previous year. Once recreational 
landings data for a particular year are finalized, they are utilized in 
the stock assessment the next year to set the TAL for the subsequent 
year (i.e., 1999 data were used in 2000 to set the 2001 TAL). Factoring 
preliminary recreational data from one year into the following year's 
specifications (i.e., 2000 data used for 2001 specifications) has been 
considered by the Council on several occasions, but there has been no 
consensus to do so, in part because recreational data are incomplete at 
the time the recreational harvest limit must be specified.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This action establishes annual quotas and management measures for 
the summer flounder fishery. Action to restrict landings must be taken 
immediately to conserve these fishery resources. It would be 
impracticable to delay implementation of the quota provisions because 
doing so would prevent NMFS from carrying out its function of 
preventing overfishing of the summer flounder resource. The fishery 
covered by this action is already in progress and quota monitoring for 
the fishing year began on January 1, 2001. Therefore, the Assistant 
Administrator finds good cause under 5 U.S.C. 553(d)(3) to waive the 
30-day delayed effectiveness period for the 2001 summer flounder quota.
    NMFS determined that this rule will be implemented in a manner that 
is consistent, to the maximum extent practicable, with the approved 
coastal zone management programs of Maine, New Hampshire, 
Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, New 
Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, 
Georgia and Florida. This determination was submitted for review by the 
responsible state agencies on October 24, 2000, under section 307 of 
the Coastal Zone Management Act. The following states agreed with NMFS' 
determination: Massachusetts, Rhode Island, New York, New Jersey, 
Pennsylvania, Delaware, North Carolina and Georgia. Maine, New 
Hampshire, Maryland, South Carolina and Florida did not respond and, 
therefore, consistency is inferred. The State of Connecticut concurred 
with all of the components of the 2001 specifications, except for the 
summer flounder TAL. Connecticut indicated that the commercial quota to 
be implemented by NMFS in response to the April 25, 2000, Court Order 
would be disruptive and harmful socioeconomically to Connecticut's 
fishing industry, due to annual fluctuations in harvest levels. NMFS 
notes that it is legally obligated to abide by the Court Order. The TAL 
meets the minimum requirements of that Order. Therefore, NMFS cannot 
implement the higher TAL alternative suggested by the State of 
Connecticut. Furthermore, NMFS is legally required under section 304(e) 
of the Magnuson-Stevens Fishery Conservation and Management Act to 
rebuild the summer flounder fishery in a period not to exceed 10 years. 
The TAL is consistent with that requirement. Therefore, the summer 
flounder TAL is consistent, to the maximum extent practicable, with 
Connecticut's coastal zone management program and NOAA's Coastal Zone 
Management Act Federal consistency regulations.
    The Council and NMFS prepared a final regulatory flexibility 
analysis (FRFA) for this action. A copy of this analysis is available 
from the Regional Administrator (see ADDRESSES). The preamble to the 
proposed rule included a detailed summary of the analyses contained in 
the IRFA, and that discussion is not repeated in its entirety here. A 
summary of the FRFA follows:
    A description of the reasons why action by the agency is being 
taken and the objectives of this final rule are explained in the 
preambles to the proposed rule and this final rule and are not repeated 
here. This action does not contain any collection-of-information, 
reporting, recordkeeping, or other compliance requirements.

Public Comments

    Five comments were received on the summer flounder measures 
contained in the proposed rule. Comments were not specifically on the 
IRFA, but were related to economic impacts on small entities (see 
response to comment 1 in the preamble of this rule).

Number of Small Entities

    The measure established by this action potentially affects a total 
of 915 vessels that participated in the summer flounder fishery in 
1999.

Minimizing Significant Economic Impact on Small Entities

    In the FRFA, NMFS analyzed the measures being implemented in this 
action. The analysis compared the effects of the measures to both the 
2000 adjusted quotas and to actual 2000 landings when available. When 
not available, 1999 landings were used.
    For the 2001 specifications, NMFS was obligated by a Court Order to 
implement a summer flounder TAL that was determined to have at least a 
50-percent probability of achieving a specified biomass target by 
December 31, 2001. No other alternative that was considered would meet 
this objective while minimizing significant economic impacts on small 
entities.

[[Page 16155]]

    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 proposed 
rule. Such comments should be sent to the Northeast Regional 
Administrator (see ADDRESSES).

    Dated: March 20, 2001.
William T. Hogarth
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 01-7266 Filed 3-20-01; 2:05 pm]
BILLING CODE 3510-22-S