[Federal Register Volume 66, Number 240 (Thursday, December 13, 2001)]
[Proposed Rules]
[Pages 64392-64396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30828]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 011129286-1286-01; I.D. 110601B]
RIN 0648-AP65


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass; Quota Counting Procedures

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

[[Page 64393]]


ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes a regulatory amendment that would establish cut-
off dates for using landings data from the commercial summer flounder, 
scup, and black sea bass fisheries to calculate quota overages. The 
establishment of landings cut-off dates for these fisheries would 
enable NMFS to establish final adjusted quotas before the beginning of 
the fishing year on January 1. NMFS also proposes to remove the 
regulatory language that specifies publication dates for proposed 
annual summer flounder, scup, and black sea bass fishing measures.

DATES: Public comments must be received on or before December 28, 2001.

ADDRESSES: Comments on the proposed rule should be sent to Patricia A. 
Kurkul, Regional Administrator, Northeast Region, NMFS, One Blackburn 
Drive, Gloucester, MA 01930-2298. Mark the outside of the envelope 
``Comments on regulatory amendment.'' Comments may also be submitted 
via facsimile (fax) to 978-281-9135. Comments will not be accepted if 
submitted via e-mail or the Internet.
    Copies of the Environmental Assessment (EA) and Regulatory Impact 
Review (RIR) are available at the above address. They are also 
accessible via the Internet at http://www.nero.nmfs.gov.

FOR FURTHER INFORMATION CONTACT: Allison Ferreira, Fishery Management 
Specialist, 978-281-9103, [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The FMP requires that NMFS compile all landings information on 
summer flounder, scup, and black sea bass and compare these landings to 
the quotas allocated to those fisheries. Landings in excess of quota 
allocations (overages) are required to be deducted from the quota 
allocations for the following year. The annual quota allocations are 
specified through a process that culminates in the publication of final 
specifications, which are scheduled to be published prior to January 1 
each year. However, because the fishing year for these fisheries does 
not end until December 31, it is impossible to have a final accounting 
of annual landings at the time the annual specifications are published 
for the fishing year beginning January 1. As a result, NMFS has had to 
make overage adjustments during the fishing year, when overages were 
identified.
    This proposed regulatory amendment would resolve the timing 
problems associated with the overage provisions of the FMP by 
establishing cut-off dates for commercial summer flounder, scup, and 
black sea bass landings data to be used in setting quotas for the 
upcoming year. If, during the fishing year, NMFS discovers that any 
overage deduction was made in error, e.g., based on calculated landings 
that exceeded actual landings for the period concerned, NMFS would 
restore all or part of the overage to the appropriate quota allocation 
and announce the restoration by publishing a document in the Federal 
Register. The purpose of this action is to allow completion of the 
compilation of landings data used in making adjustments to the next 
fishing year's quotas in sufficient time to include all necessary 
adjustments in the final specifications that establish those quotas. 
The proposed action would thus improve management by NMFS and state 
marine fisheries agencies by establishing final quota allocation before 
the beginning of the fishing year that would not be further adjusted in 
the middle of the fishing year. This would enable fishermen targeting 
these species to plan their activities for the upcoming fishing year 
with greater confidence.
    This proposed rule would also remove the regulatory language found 
at Secs. 648.100 (d), 648.120 (c), and 648.140 (c) that specifies 
publication dates for proposed annual summer flounder, scup, and black 
sea bass fishing measures. The current publication dates of October 15 
for proposed annual fishing measures and of February 15 for proposed 
recreational measures specified in the regulations are misleading 
because there is no corresponding deadline for submission of annual 
specifications and corresponding analyses to NMFS, or publication of 
final measures. The removal of the publication dates would provide NMFS 
with the time necessary to ensure that all proposed alternatives are 
appropriately analyzed.
    The cut-off date proposed for compiling landings data that would be 
used in adjusting the quota allocations for the next fishing year is 
October 31. However, landings data for the full fishing year 2000 have 
already been used to calculate overages and make necessary adjustments 
in 2001. Therefore, this measure would be phased in for the 2002 
fishery in that only landings from January through October 2001 would 
be used to determine 2001 overages for purposes of the 2002 quotas. For 
the 2003 fishery and subsequent years, implementation would occur as 
described below.
    NMFS considered four alternative cut-off dates in developing the 
proposed measure. These cut-off dates consisted of September 30, 
October 31, November 30, and the status-quo or no cut-off date. A 
public hearing was conducted during the October 11, 2001, meeting of 
the Mid-Atlantic Fishery Management Council (Council) in New Bern, NC. 
At that meeting, NMFS announced that its preferred cut-off date was 
October 31. No comments were received that resulted in a modification 
of the preferred cut-off date.

Summer Flounder

    The commercial summer flounder quota is allocated on a state-by-
state basis to the states from Maine through North Carolina. The 
proposed cut-off date of October 31 would provide sufficient time to 
compile commercial summer flounder landings data through October 31 and 
to make necessary quota adjustments to be published in the rule 
establishing the final specifications for the upcoming year. In 
addition, this cut-off date would insure that the majority of summer 
flounder landings data (approximately 80 percent, based on the 
availability of 2000 summer flounder landings date) are included in the 
calculation of state-by-state quota overages.
    For example, during November 2002, all available 2002 landings data 
for the period January 1 through October 31 would be compiled and 
compared to proposed 2002 state quota allocations. Any overages would 
then be determined, and required deductions would be made from the 
state allocations for 2003 in the final rule that establishes the 2003 
measures (to be published in December 2002). In addition, 2001 landings 
data for the period January 1 through December 31 would be reviewed and 
compared to 2001 state quota allocations. This would be the first 
consideration of landings data for the period November through December 
2001. It would be the second consideration of landings from the period 
January through October 2001; these data would be reviewed to identify 
any data that were submitted late. Any new overages identified for the 
2001 fishing year as the result of this examination would also be 
deducted from state allocations for 2003 in the final rule that 
establishes the 2003 measures.
    If NMFS determines that a state's quota allocation has been 
exceeded as of October 31, then that state's commercial summer flounder 
fishery would be closed in accordance with the regulations fount at 
Sec.  648.101(c). Any additional overages that may occur

[[Page 64394]]

during November and December as a result of state waters remaining open 
would be deducted from the quota allocation for that state in the 
following fishing year.

Scup

    The commercial scup quota is allocated coastwide from Maine through 
North Carolina, to three seasonal allocation periods: Winter I, January 
through April; Summer, May through October; and Winter II, November 
through December. The proposed action would establish a landings cut-
off date of October 31 for the Winter I and Summer quota periods, and 
establish a second landings cut-off date of June 30 of the following 
year for the Winter II quota period. A landings cut-off date of October 
31 would provide sufficient time to compile commercial scup landings 
for the Winter I and Summer quota periods and to make necessary 
adjustments to the quota allocations for these quota periods in the 
final specifications for the upcoming year. In addition, the proposed 
cut-off date is consistent with the end of the Summer quota period. 
Based on the availability of 2000 scup landings data for the Winter I 
and Summer quota periods, most (up to 95 percent) of the landings 
occurring during these quota periods would be available for inclusion 
in the calculation of quota overages for the final specifications if a 
cut-off date of October 31 was established. The establishment of a 
second landings cut-off date of June 30 for the scup fishery is 
proposed because all scup landings for the Winter II fishery are 
generally accounted for before that date, based on the availability of 
commercial scup landings for the 2000 Winter II quota period.
    For example, during November 2002, all available 2002 landings data 
for the period January 1 through October 31 would be compiled and 
compared to the 2002 Winter I and Summer quota allocations. Any 
overages would then be determined, and required deductions would be 
made from the Winter I and/or Summer allocations for 2003 in the final 
rule that establishes the 2003 measures. In addition, all available 
2001 landings data for the period January 1 through December 31 would 
be compiled and compared to the 2001 period allocations (Winter I, 
Summer, and Winter II). Any new overages identified for the 2001 
fishing year as the result of late data would be determined, and the 
required deductions would be made from the appropriate period 
allocations for 2003 in the final rule that establishes the 2003 
measures.
    By June 30, 2003, all available 2002 landings data for the Winter 
II period (November through December) would be compiled and compared to 
the 2002 Winter II quota allocation. Any overages would be determined, 
and the required deductions would be made from the Winter II allocation 
for 2003. The public would then be informed of this adjustment in a 
Federal Register notification published in July 2003.

Black Sea Bass

    The black sea bass quota is allocated coastwide, from Maine to 
North Carolina, to quarterly allocations: Quarter 1, January through 
March; Quarter 2, April through June; Quarter 3, July through 
September; and Quarter 4, October through December. The proposed action 
would establish a landings cut-off date of October 31 for the Quarter 1 
through Quarter 3 fisheries, and establish a second landings cut-off 
date of June 30 of the following year for the Quarter 4 fishery. 
Similar to scup, a landings cut-off date of October 31 would provide 
sufficient time to compile commercial black sea bass landings and make 
necessary adjustments to the quota allocations for the Quarter 1 
through Quarter 3 fisheries in the final specifications for the 
upcoming year. Based on the availability of 2000 black sea bass 
landings for this period, at least 90 percent of landings occurring 
during these quota periods would be available for inclusion in the 
calculation of quota overages for the final specifications if a cut-off 
date of October 31 was established. In addition, NMFS is recommending 
that landings for the Quarter 4 black sea bass fishery be assessed as 
of June 30 of the following year because the prior year's landings data 
for this quota period are relatively complete by that date.
    For example, during November 2002, all available 2002 landings data 
for Quarters 1 through 3 that are received by October 31 would be 
compiled and compared to the 2002 quota allocations for Quarters 1 
through 3. Any overages would then be determined, and required 
deductions would be made from the Quarter 1, 2 or 3 allocations for 
2003 in the final rule that establishes the 2003 measures. In addition, 
all available 2001 landings data (Quarters 1 through 4) would be 
reviewed to identify any data reported late. Any new overages 
identified for the 2001 fishing year as the result of this review would 
also be deducted from the appropriate quarterly allocations for 2003.
    By June 30, 2003, all available 2002 landings data for Quarter 4 
would be compiled and compared to the 2002 quota allocation for Quarter 
4. Any overage would be determined, and required deductions would be 
made from the Quarter 4 allocation for 2003. The public would then be 
informed of this adjustment in a Federal Register notification 
published in July 2003.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This proposed rule does not contain certain policies with 
Federalism implications as that term is defined in Executive Order 
13132.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    The proposed measures contained in this regulatory amendment could 
affect any vessel holding an active Federal moratorium permit for 
summer flounder, scup, or black sea bass, as well as vessels that fish 
for any one of these species in state waters. Data from the Northeast 
permit application database show that, as of September 25, 2001, there 
were 1,396 commercial vessels permitted to take part in the commercial 
summer flounder, scup, and/or black sea bass fisheries. All of these 
vessels are considered to be small entities. However, the establishment 
of a landings cut-off date would not directly modify fishing activities 
associated with the summer flounder, scup, and black sea bass 
fisheries. As a result, this action is not expected to have any 
economic impact on vessels participating in the commercial summer 
flounder, scup, and black sea bass fisheries. Thus, the revenues and 
profitability of individual vessels will not be adversely affected by 
this action. However, the action will allow vessel owners to know the 
exact quotas for the upcoming fishing year and may enable them to make 
adjustments to their fishing operations that could potentially increase 
their profitability by providing vessel owners more certainty in 
planning for the upcoming fishing year. With exact knowledge of the 
quotas, they can better plan when to fish based on ex-vessel prices; 
costs of fuel and food; and arrangements with brokers, dealers, and 
wharf facilities. As a result, an initial regulatory flexibility 
analysis was not prepared.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements


[[Page 64395]]


    Dated: December 7, 2001.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

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

    2. In Sec. 648.100, the first sentence of paragraph (d) 
introductory text, and paragraph (d)(1)(ii) are revised to read as 
follows:


Sec. 648.100  Catch quotas and other restrictions.

* * * * *
    (d) After such review, the Regional Administrator will publish a 
proposed rule in the Federal Register to implement a coastwide 
commercial quota, a recreational harvest limit, and additional 
management measures for the commercial fishery. * * *
    (1) * * *
    (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 landings in excess of the 
commercial quota in any state will be deducted from that state's annual 
quota for the following year in the final rule that establishes the 
annual state-by-state quotas. The overage deduction will be based on 
landings for the current year through October 31, and on landings for 
the previous calendar year that were not included when the overage 
deduction was made in the final rule that established the annual quota 
for the current year. If the Regional Administrator determines during 
the fishing year that any part of an overage deduction was based on 
erroneous landings data that were in excess of actual landings for the 
period concerned, NMFS will restore all or part of the overage deducted 
to the appropriate quota allocation. The Regional Administrator will 
publish a notification in the Federal Register announcing such 
restoration.
* * * * *

    3. In Sec. 648.120, paragraphs (d)(4), (d)(5), and (d)(6) are 
removed, paragraph (c) is revised and paragraph (d)(3) is added to read 
as follows:


Sec. 648.120  Catch quotas and other restrictions.

* * * * *
    (c) Annual fishing measures. The Demersal Species Committee shall 
review the recommendations of the Scup Monitoring Committee. Based on 
these recommendations and any public comment, the Demersal Species 
Committee shall recommend to the MAFMC measures necessary to assure 
that the specified exploitation rate will not be exceeded. The MAFMC's 
recommendation 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. After such 
review, NMFS will publish a proposed rule to implement a commercial 
quota in the Federal Register, specifying the amount of quota allocated 
to each of the three periods, landings limits for the Winter I and 
Winter II periods, the percentage of landings attained during the 
Winter I fishery at which the landing limits will be reduced, a 
recreational harvest limit, and additional management measures for the 
commercial fishery. If the Regional Administrator determines that 
additional recreational measures are necessary to assure that the 
specified exploitation rate will not be exceeded, he or she will 
publish a proposed rule in the Federal Register to implement additional 
management measures for the recreational fishery. After considering 
public comment, the Regional Administrator will publish a final rule in 
the Federal Register to implement annual measures.
    (d) * * *
    (3) All scup landed for sale in any state during a quota period 
shall be applied against the coastwide commercial quota for that 
period, regardless of where the scup were harvested. Any current year 
landings in excess of the commercial quota in any quota period will be 
deducted from that quota period's annual quota in the following year as 
prescribed below:
    (i) For the Winter I and Summer quota periods, landings in excess 
of the allocation will be deducted from the appropriate quota period 
for the following year in the final rule that establishes the annual 
quota. The overage deduction will be based on landings for the current 
year through October 31, and on landings for the previous calendar year 
that were not included when the overage deduction was made in the final 
rule that established the period quotas for the current year. If the 
Regional Administrator determines during the fishing year that any part 
of an overage deduction was based on erroneous landings data that were 
in excess of actual landings for the period concerned, NMFS will 
restore all or part of the overage deduction to the appropriate quota 
allocation. The Regional Administrator will publish notification in the 
Federal Register announcing the restoration.
    (ii) For the Winter II quota period, landings in excess of the 
allocation will be deducted from the Winter II period for the following 
year in a notification published in the Federal Register during the 
following year. The overage deduction will be based on landings 
information available for the Winter II period as of June 30. If the 
Regional Administrator determines during the fishing year that any part 
of an overage deduction was based on erroneous landings data that were 
in excess of actual landings for the period concerned, NMFS will 
restore all or part of the overage deduction to the appropriate quota 
allocation. The Regional Administrator will publish notification in the 
Federal Register announcing the restoration.
* * * * *

    4. In Sec. 648.140, paragraphs (c) and (d)(2) are revised and 
paragraphs (d)(3) and (d)(4) are added to read as follows:


Sec. 648.140  Catch quotas and other restrictions.

* * * * *
    (c) Annual fishing measures. The Demersal Species Committee shall 
review the recommendations of the Black Sea Bass Monitoring Committee. 
Based on these recommendations and any public comment, the Demersal 
Species Committee shall make its recommendations to the Council with 
respect to the measures necessary to assure that the target 
exploitation rate specified in paragraph (a) of this section is not 
exceeded. The Council shall review these recommendations and, based on 
the recommendations and public comment, make recommendations to the 
Regional Administrator with respect to the measures necessary to assure 
that the target exploitation rate specified in paragraph (a) of this 
section is not exceeded. Included in the recommendation will be 
supporting documents, as appropriate, concerning the environmental and 
economic impacts of the proposed action. The Regional Administrator 
will review these recommendations and any recommendations of the 
Commission. After such review, the Regional Administrator will publish 
a proposed rule in the Federal Register to implement a commercial 
quota, a

[[Page 64396]]

recreational harvest limit, and additional management measures for the 
commercial fishery. If the Regional Administrator determines that 
additional recreational measures are necessary to assure that the 
target exploitation rate specified in paragraph (a) of this section 
will not be exceeded, he or she will publish a proposed rule in the 
Federal Register to implement additional management measures for the 
recreational fishery. After considering public comment, the Regional 
Administrator will publish a final rule in the Federal Register to 
implement the measures necessary to assure that the target exploitation 
rate specified in paragraph (a) of this section is not exceeded.
    (d) * * *
    (2) All black sea bass landed for sale in the states from North 
Carolina through Maine by a vessel with a moratorium permit issued 
under Sec. 648.4 (a)(7) shall be applied against that quarter's 
commercial quota, regardless of where the black sea bass were 
harvested. All black sea bass harvested north of 35 deg.15.3' N. lat., 
and landed for sale in the states from North Carolina through Maine by 
any vessel without a moratorium permit and fishing exclusively in state 
waters will be counted against the quota by the state in which it is 
landed pursuant to the Fishery Management Plan for the Black Sea Bass 
Fishery adopted by the Commission. The Regional Administrator will 
determine the date on which the quarterly quota will have been 
harvested; the EEZ north of 35 deg.15.3' N. lat. will be closed on that 
date. The Regional Administrator will publish a notice in the Federal 
Register advising that, upon, and after, that date, no vessel may 
possess black sea bass in the EEZ north of 35 deg.15.3' N. lat. during 
a closure, nor may vessels issued a moratorium permit land black sea 
bass during the closure. Individual states will have the responsibility 
to close their ports to landings of black sea bass during a closure 
pursuant to the Fishery Management Plan for the Black Sea Bass Fishery 
adopted by the Commission.
    (3) For the Quarter 1 through Quarter 3 quota periods, landings in 
excess of the allocation will be deducted from the appropriate quota 
period for the following year in the final rule that establishes the 
annual quota. The overage deduction will be based on landings for the 
current year through September 30, and landings for the previous 
calendar year that were not included when the overage deduction was 
made in the final rule that established the quarterly quotas for the 
current year. If the Regional Administrator determines during the 
fishing year that any part of an overage deduction was based on 
erroneous landings data that were in excess of actual landings for the 
period concerned, NMFS will restore all or part of the overage 
deduction to the appropriate quota allocation. The Regional 
Administrator will publish a notification in the Federal Register 
announcing the restoration.
    (4) For the Quarter 4 quota period, landings in excess of the 
allocation will be deducted from the Quarter 4 period for the following 
year in a notification published in the Federal Register during the 
following year. The overage deduction will be based on landings 
information available for the Quarter 4 period as of June 30 of the 
following year. If the Regional Administrator determines during the 
fishing year that any part of an overage deduction was based on 
erroneous landings data that were in excess of actual landings for the 
period concerned, NMFS will restore all or part of the overage 
deduction to the appropriate quota allocation. The Regional 
Administrator will publish a notification in the Federal Register 
announcing the restoration.
* * * * *
[FR Doc. 01-30828 Filed 12-12-01; 8:45 am]
BILLING CODE 3510-22-S