[Federal Register Volume 66, Number 133 (Wednesday, July 11, 2001)]
[Rules and Regulations]
[Pages 36208-36212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17095]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 010618159-01; I.D. 051101A]
RIN 0648-AO92


Fisheries of the Northeastern United States; Summer Flounder 
Fishery; Framework Adjustment 2

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement measures contained in 
Framework Adjustment 2 to the Summer Flounder, Scup and Black Sea Bass 
Fishery Management Plan (FMP). This final rule modifies the mechanism 
for specifying the annual management measures for the summer flounder 
recreational fishery by implementing a management system that will 
either constrain the recreational summer flounder fishery to coastwide 
management measures or allow states to customize summer flounder 
recreational management measures. The intent of this action is to 
establish a management system that allows states to customize 
recreational management measures while still meeting overall FMP 
objectives.

DATES: Effective July 29, 2001.

ADDRESSES: Copies of Framework Adjustment 2 to the Summer Flounder, 
Scup and Black Sea Bass FMP, its

[[Page 36209]]

Environmental Assessment (EA), and Regulatory Impact Review (RIR) are 
available on request from Daniel T. Furlong, Executive Director, Mid-
Atlantic Fishery Management Council, 300 South New Street, Dover, DE 
19904-6790.

FOR FURTHER INFORMATION CONTACT: David M. Gouveia, Fishery Policy 
Analyst, (978) 281-9280, fax (978) 281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: The recreational summer flounder fishery is 
managed through an annual evaluation process, with annual measures 
established to achieve a coastwide recreational harvest limit. After 
the annual coastwide recreational harvest limit recommendation has been 
made by the Mid-Atlantic Fishery Management Council (Council) and the 
Atlantic States Marine Fisheries Commission (Commission), the Summer 
Flounder Monitoring Committee (Committee) meets in December to 
recommend measures necessary to achieve the recreational harvest limit 
(seasons, possession limits and/or minimum fish sizes). The Council 
reviews the Committee's recommendations and any public comment prior to 
submitting its recommendations to NMFS. NMFS then is responsible for 
reviewing the Council's recommendation and assuring the measures will 
have at least a 50-percent likelihood of achieving the harvest limit.
    Because the recreational summer flounder fishery is currently 
managed on a coastwide basis, the FMP requires that the same management 
measures apply to each state. However, summer flounder migration 
patterns have created differences in the availability of summer 
flounder to the recreational fisheries of the states. While coastwide 
measures achieve the target overall, they have a differential impact on 
the states because the availability of summer flounder to the 
recreational sector is not uniform across the states.
    On September 9, 1999, NMFS enacted interim measures to allow states 
to implement in state waters conservation measures that were equivalent 
to the annual Federal summer flounder measures. The temporary interim 
measures were in effect while the Council developed a more 
comprehensive mechanism to address this issue on a permanent basis. 
Under the interim rule, states could select either an individualized 
combination of minimum fish sizes, possession limits, and closed 
seasons, or the coastwide management measures to constrain recreational 
landings to the harvest limit. The state conservation equivalency 
provision was utilized in the summer flounder recreational fishery in 
1999. However, a loophole was discovered during the implementation of 
the interim rule. By allowing states to choose between conservation 
equivalent measures and coastwide measures, states had the ability to 
select management measures that did not achieve the required percentage 
reduction in harvest. In 1999, a 41-percent reduction in recreational 
summer flounder landings was required coastwide. Each state had the 
option to select either the coastwide measures or state-specific 
measures to achieve the reduction. The coastwide measures achieved the 
41-percent reduction overall, but resulted in reductions in individual 
states that ranged from 11 percent to 39 percent. Some states selected 
the coastwide measures because they actually impacted their fishery by 
less than 41 percent. Therefore, by allowing states to choose between 
coastwide and state specific measures, the overall required 41-percent 
reduction was not achieved.
    On April 28, 1999, NMFS approved a framework adjustment process as 
part of Amendment 12 to the FMP, which allows the Council to use this 
process to change the annual specification quota setting process and 
recreational management measures. This framework adjustment specifies 
that the Council and Commission will decide on an annual basis whether 
to recommend a coastwide recreational harvest limit or require states 
to implement summer flounder recreational management measures that 
achieve equivalent conservation. To eliminate the loophole revealed 
during the implementation of the interim rule, states will not be 
authorized to choose between the coastwide and state equivalency 
measures but will all manage on either a coastwide basis or on a state 
equivalent basis. If coastwide measures are recommended, NMFS will 
publish proposed coastwide measures as currently specified in the FMP, 
solicit public comment and then publish final coastwide measures. If 
conservation equivalent measures are recommended, NMFS will publish a 
proposed rule that will include: (1) the overall percentage adjustment 
required in each state to achieve the recreational harvest limit; (2) a 
recommendation to implement state conservation equivalent measures and 
precautionary default measures; and (3) coastwide measures.
    Precautionary default measures are measures that would achieve at 
least the overall required adjustment in landings for each state. For 
example, in 1999 a 41-percent reduction in landings was required. An 
appropriate 1999 precautionary default measure would have been a one-
fish possession limit and a 15.5-inch minimum size limit. These 
measures would have achieved at least a 41-percent reduction in each 
state, assuming the regulations achieve 85-percent effectiveness. 
Precautionary default measures will be recommended at the joint 
Commission/Council meeting when conservation equivalency measures are 
chosen.
    Under conservation equivalency, states will not be allowed to 
implement measures by method of fishing (mode) or area within a state 
unless the proportional standard error (PSE) derived from the Marine 
Recreational Statistical Survey landings, estimated by mode or area, is 
less than 30 percent for each respective state. PSE expresses the 
standard error of a landings estimate as a percentage of that estimate, 
and is a measure of the precision of the landings estimate. The 30-
percent PSE threshold was specified by the Council and Commission.
    Each state will use state-specific tables created by the Committee 
to develop and propose equivalent management measures to achieve the 
recreational harvest limit for the summer flounder fishery. Tables will 
be adjusted to account for effectiveness of the regulations based on 
review of prior years' data. Using these tables, each state will 
develop a suite of management measures composed of possession limits, 
minimum size restrictions, and seasonal restrictions to achieve 
landings consistent with the recreational harvest limit for the summer 
flounder fishery.
    States will submit their proposed suite of recreational measures to 
the Commission for review. Any state that does not submit a proposal or 
submits a proposal that is determined to not achieve the adjustment 
target will be assigned the precautionary default measures. At the 
discretion of the Commission, states that have been assigned the 
precautionary default measures may be authorized to resubmit revised 
management measures, and if those are consistent with the adjustment 
target, the state could implement them in place of the precautionary 
default measures.
    During the proposed rule comment period, the Commission will 
complete its review of state proposals and notify NMFS of its findings. 
Although the Council and Commission may recommend state conservation 
equivalency to NMFS, NMFS has the responsibility of ensuring that the 
measures will achieve the harvest limit.

[[Page 36210]]

 Therefore, NMFS retains the final authority to approve either 
coastwide or state equivalency and will publish its determination in 
the final rule for recreational measures. Should NMFS approve state 
conservation equivalent measures, NMFS will publish in the final rule 
the state conservation equivalent and/or precautionary default measures 
for each respective state for the exclusive economic zone (EEZ). For 
states with approved conservation equivalent measures, NMFS will also 
announce as part of the final recreational measures that it is waiving 
the permit condition found at Sec. 648.4(b), which requires federally 
permitted vessels to comply with the more restrictive management 
measures when state and Federal measures differ. In the case of states 
that are initially assigned precautionary default measures, but 
subsequently receive Commission approval of customized state measures, 
NMFS will publish a notification in the Federal Register announcing the 
waiver of the permit condition at Sec.  648.4(b).

Economic Impact Analysis

    The potential impacts that may result from this action have been 
considered in the EA and RIR. This action proposes a management system 
that will provide the Council and Commission the flexibility to 
recommend cooperatively either coastwide management measures or 
customized state summer flounder recreational management to achieve the 
recreational summer flounder harvest limit, rather than relying solely 
on coastwide management measures. Should the Council and Commission 
choose to allow states to customize summer flounder recreational 
management measures, states will be able to set management measures 
that will maintain traditional fishing practices within each respective 
state. This action is not, therefore, expected to result in negative 
impacts to charter/party vessels participating in the recreational 
summer flounder fishery compared to the no-action alternative of solely 
relying on coastwide management measures. Other alternatives were 
considered, including conservation equivalency by sub-regions, 
conservation equivalency by state using sub-regional data, conservation 
equivalency as established through the interim action, and state by 
state allocations for recreational fishing. While several of these 
would also provide greater flexibility than the current measures in the 
FMP, none were identified as minimizing impacts in comparison to the 
adopted measures.

Abbreviated Rulemaking

    NMFS is making these revisions to the regulations under the 
framework abbreviated rulemaking procedure codified at 50 CFR part 648, 
subpart G. This procedure requires the Council, when making 
specifically allowed adjustments to the regulations, to develop and 
analyze the actions over the span of at least two Council meetings. The 
Council must provide the public with advance notice of both the 
proposals and the analysis, and with an opportunity to comment on them 
at the first meeting and prior to and at the second Council meeting. 
Upon review of the analysis and public comment, the Council may 
recommend to the Administrator, Northeast Region, NMFS, that the 
measures be published as a final rule if certain conditions are met. 
NMFS may publish the measures as a final rule, or as a proposed rule if 
additional public comment is necessary.
    The public was provided the opportunity to comment on the 
management measures contained in Framework 2 at the Council's December 
12-14, 2000, and February 6-8, 2001, meetings. Documents summarizing 
the Council's proposed action and the analysis of biological and 
economic impacts of this and alternative actions were available for 
public review at the December 12-14, 2000, meeting and prior to the 
final February 8, 2001, meeting, as is required under the framework 
adjustment procedures. Written comments could be submitted up to and 
during the final meeting. No comments were received.

Classification

    The Regional Administrator determined that this framework 
adjustment to the FMP is necessary for the conservation and management 
of the summer flounder fishery and that it is consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and other applicable laws.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553 et seq., or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable. Nevertheless, the impacts of this action on 
affected small entities were considered in the RIR contained in the 
supporting analyses for Framework 2. The impacts are described in the 
SUPPLEMENTARY INFORMATION section of the preamble to this final rule.
    The Assistant Administrator for Fisheries, NOAA (AA), finds that, 
because public meetings held by the Council to discuss the management 
system implemented by this final rule provided adequate prior notice 
and opportunity for public comment, further notice and opportunity to 
comment on this final rule is unnecessary. Therefore, the AA, under 5 
U.S.C. 553 (b)(B), finds good cause exists to waive prior notice and 
additional opportunity for public comment.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 29, 2001.
William T. Hogarth,
Acting 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. 648.4, paragraph (a)(3)(iii) is revised to read as 
follows:


Sec. 648.4  Vessel permits.

    (a) * * *
    (3) * * *
    (iii) Exemption permits. Owners of summer flounder vessels seeking 
an exemption from the minimum mesh requirement under the provisions of 
Sec. 648.104 (b)(1) must apply to the Regional Administrator under 
paragraph (c) of this section at least 7 days prior to the date they 
wish the permit to become effective. The applicant must mark 
``Exemption Permit Request'' on the permit application at the top. A 
permit issued under this paragraph (a)(3)(iii) does not meet the 
requirements of paragraph (a)(3)(i) of this section, but is subject to 
the other provisions of this section. Persons issued an exemption 
permit must surrender it to the Regional Administrator at least 1 day 
prior to the date they wish to fish not subject to the exemption. The 
Regional Administrator may impose temporary additional procedural 
requirements by publishing a notification in the Federal Register. If a 
summer flounder charter or party requirement of this part differs from 
a summer flounder charter or party management measure required by a 
state, any vessel owners or operators fishing under the terms of a 
summer flounder charter/party vessel permit in

[[Page 36211]]

the EEZ for summer flounder must comply with the more restrictive 
requirement while fishing in state waters, unless otherwise authorized 
under Sec. 648.107.
* * * * *

    3. Section 648.100 is revised to read as follows:


Sec. 648.100  Catch quotas and other restrictions.

    (a) Annual review. The Summer Flounder Monitoring Committee shall 
review the following data on or before August 15 of each year to 
determine the allowable levels of fishing and other restrictions 
necessary to achieve, with at least a 50-percent probability of 
success, a fishing mortality rate (F) that produces the maximum yield 
per recruit (Fmax): 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.
    (b) Recommended measures. Based on this review, the Summer Flounder 
Monitoring Committee shall recommend to the Demersal Species Committee 
of the MAFMC and the Commission the following measures to ensure, with 
at least a 50-percent probability of success, that the F specified in 
paragraph (a) of this section will not be exceeded:
    (1) Commercial quota set from a range of 0 to the maximum allowed 
to achieve the specified F.
    (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 F.
    (5) Recreational minimum fish size.
    (6) Recreational season.
    (7) Recreational state conservation equivalent and precautionary 
default measures utilizing possession limits, minimum fish sizes, and/
or seasons.
    (8) Restrictions on gear other than otter trawls.
    (9) 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 (a) of this section to prevent discarding of sublegal sized 
summer flounder in excess of 10 percent, by weight.
    (c) Annual fishing measures. 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 
ensure, with at least a 50-percent probability of success, that the 
applicable specified F will not be exceeded. The MAFMC shall review 
these recommendations and, based on the recommendations and any public 
comment, recommend to the Regional Administrator measures necessary to 
ensure, with at least a 50-percent probability of success, that the 
applicable specified F will not be exceeded. The MAFMC's 
recommendations must include supporting documentation, as appropriate, 
concerning the environmental and economic impacts of the 
recommendations. The Regional Administrator shall review these 
recommendations and any recommendations of the Commission.
    (d) Commercial measures. After such review, the Regional 
Administrator will publish a proposed rule in the Federal Register on 
or about October 15 to implement a coastwide commercial quota and 
recreational harvest limit and additional management measures for the 
commercial fishery. After considering public comment, the Regional 
Administrator will publish a final rule in the Federal Register to 
implement the measures necessary to ensure, with at least a 50-percent 
probability of success, that the applicable specified F will not be 
exceeded.
    (1) Distribution of annual quota. (i) The annual commercial quota 
will be distributed to the states, based upon the following 
percentages:

                     ANNUAL COMMERCIAL QUOTA SHARES
------------------------------------------------------------------------
                        State                           Share (percent)
------------------------------------------------------------------------
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
------------------------------------------------------------------------

    (ii) 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.
    (2) 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.
    (3) 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.
    (4) 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.
    (5) 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.
    (6) If there is a quota overage among states involved in the 
combination of quotas at the end of the fishing year, the

[[Page 36212]]

 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. A transfer of quota or combination of 
quotas does not alter any state's percentage share of the overall quota 
specified in paragraph (d)(1)(i) of this section.
    (e) Recreational measures. 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 and Commission measures 
necessary to ensure, with at least a 50-percent probability of success, 
that the applicable specified F will not be exceeded. The MAFMC shall 
review these recommendations and, based on the recommendations and any 
public comment, recommend to the Regional Administrator measures 
necessary to ensure, with at least a 50-percent probability of success, 
that the applicable specified F will not be exceeded. The MAFMC's 
recommendations must include supporting documentation, as appropriate, 
concerning the environmental and economic impacts of the 
recommendations. The Council and the Commission will recommend that the 
Regional Administrator implement either:
    (1) Coastwide measures. Annual coastwide management measures that 
constrain the recreational summer flounder fishery to the recreational 
harvest limit, or
    (2) Conservation equivalent measures. States may implement 
different combinations of minimum fish sizes, possession limits, and 
closed seasons that achieve equivalent conservation as the coastwide 
measures established under paragraph (e)(1) of this section. Each state 
may implement measures by mode or area only if the proportional 
standard error of Marine Recreational Statistical Survey landings 
estimates by mode or area for that state are less than 30 percent.
    (i) After review of the recommendations, the Regional Administrator 
will publish a proposed rule in the Federal Register on or about March 
1 to implement the overall percent adjustment in recreational landings 
required for the fishing year, the Council and Commission's 
recommendation concerning state conservation equivalency, the 
precautionary default measures, and coastwide measures.
    (ii) During the public comment period on the proposed rule, the 
Commission will review state conservation equivalency proposals and 
determine whether or not they achieve the necessary adjustment to 
recreational landings. The Commission will provide the Regional 
Administrator with the individual state conservation measures for the 
approved state proposals, and in the case of disapproved state 
proposals, the precautionary default measures.
    (iii) The Commission may allow states assigned the precautionary 
default measures to resubmit revised management measures. The 
Commission will detail the procedures by which the state can develop 
alternate measures. The Commission will notify the Regional 
Administrator of any resubmitted state proposals approved subsequent to 
publication of the final rule and the Regional Administrator will 
publish a notice in the Federal Register to notify the public.
    (iv) After considering public comment, the Regional Administrator 
will publish a final rule in the Federal Register to implement either 
the state specific conservation equivalency measures or coastwide 
measures to ensure that the applicable specified target is not 
exceeded.

    4. Section 648.102 is revised to read as follows:


Sec. 648.102  Time restrictions.

    Unless otherwise specified in Sec.  648.107, vessels that are not 
eligible for a moratorium permit under Sec. 648.4 (a)(3) and fishermen 
subject to the possession limit may fish for summer flounder from 
January 1 through December 31. This time period may be adjusted 
pursuant to the procedures in Sec. 648.100.

    5. In Sec. 648.103, paragraph (b) is revised to read as follows:


Sec. 648.103  Minimum fish sizes.

* * * * *
    (b) Unless otherwise specified in Sec. 648.107, the minimum size 
for summer flounder is 15 inches (38 cm) TL for all vessels that do not 
qualify for a moratorium permit, and charter boats holding a moratorium 
permit if fishing with passengers for hire or carrying more than three 
crew members, or party boats holding a moratorium permit if fishing 
with more than five crew members.
* * * * *

    6. In Sec. 648.105, the first sentence of paragraph (a) is revised 
to read as follows:


Sec. 648.105  Possession restrictions.

    (a) Unless otherwise specified in Sec. 648.107, no person shall 
possess more than eight summer flounder in, or harvested from, the EEZ 
unless that person is the owner or operator of a fishing vessel issued 
a summer flounder moratorium permit or is issued a summer flounder 
dealer permit. * * *
* * * * *

    7. Section 648.107 is revised to read as follows:


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

    No conservation equivalent measures are specified.
[FR Doc. 01-17095 Filed 7-10-01; 8:45 am]
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