[Federal Register Volume 67, Number 31 (Thursday, February 14, 2002)]
[Rules and Regulations]
[Pages 6877-6882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3667]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 011129286-2022-02; 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.

ACTION: Final rule and technical amendment.

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SUMMARY: NMFS issues this final rule to 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 will enable NMFS to 
establish final adjusted quotas before the beginning of each fishing 
year on January 1. This final rule also removes regulatory language 
that specifies publication dates for proposed annual summer flounder, 
scup, and black sea bass fishing measures and makes a technical change 
to the regulations to clarify the annual exploitation target for scup.

DATES: Effective February 14, 2002.

ADDRESSES: Copies of the Environmental Assessment (EA) and Regulatory 
Impact Review (RIR) are available at the following address: National 
Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-
2298. This document is also accessible via the Internet at http://www.nero.nmfs.gov.

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

SUPPLEMENTARY INFORMATION:

Background

    The Fishery Management Plan for the Summer Flounder, Scup, and 
Black Sea Bass Fisheries (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 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 regulatory amendment to the FMP resolves the timing problems 
associated with the overage provisions of the FMP by establishing a 
cut-off date of October 31 for commercial summer flounder, scup, and 
black sea bass landings data to be used in setting quotas for the 
upcoming fishing year. Therefore, this final rule will enable NMFS to 
compile landings information, determine quota overages, and publish 
final adjusted annual fishing quotas for these fisheries prior to 
January 1. 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 will restore 
all

[[Page 6878]]

or part of the overage to the appropriate quota allocation and announce 
the restoration by publishing a notification in the Federal Register.
    This final rule also removes the regulatory language in 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 data required to conduct the analyses necessary for 
developing proposed measures are not available in time to allow 
publication by the current specified dates of October 15 for proposed 
annual fishing measures and of February 15 for proposed recreational 
measures.
    The measures contained in this final rule are unchanged from those 
published in the proposed rule (66 FR 64392, December 13, 2001). A 
complete discussion of the development of this regulatory amendment 
appeared in the preamble of the proposed rule and is not repeated here.
    As stated previously, this final rule establishes a landings cut-
off date of October 31. Landings data for the full fishing year 2000 
were used to calculate overages and make necessary adjustments in 2001. 
This measure is being phased in for the 2002 fishery; only landings 
from January through October 2001 are being used to determine 2001 
overages for purposes of the 2002 quotas. The quota overages reflected 
in the final 2002 specifications for the summer flounder, scup, and 
black sea bass fisheries (66 FR 66348, December 26, 2001) are based on 
landings from January 1 - October 31, 2001. However, the quota 
adjustments were noted as preliminary in the final rule for 2002 
specifications because the proposed rule for this regulatory amendment 
was still under public comment (66 FR 64392, December 13, 2001). This 
final rule notifies the public that the preliminary quota adjustments 
made in the final rule establishing the 2002 specifications for the 
summer flounder, scup, and black sea bass fisheries are final. For the 
2003 fishery and subsequent years, implementation will occur as 
described below.

Summer Flounder

    During November of a given year, all available landings data for 
January 1 - October 31 of that year will be compiled and compared to 
that year's state quota allocations. Any overages will be determined 
and required deductions will be made to state allocations for the 
upcoming fishing year in the final rule that establishes those measures 
(to be published by December 31). If any further overage deductions are 
necessary as a result of landings made during November - December, or 
as a result of late data submitted for January 1 - October 31, those 
overages will be applied to the quota allocations for the next fishing 
year.
    Table 1 provides an example of how the quota counting procedures 
established by this final rule will function with respect to the 
establishment of the 2002 and 2003 annual summer flounder quota 
allocations.

                             Table 1. Calculation of summer flounder quota overages
----------------------------------------------------------------------------------------------------------------
                                             2001 Fishing Year                       2002 Fishing Year
     Summer Flounder Quotas      -------------------------------------------------------------------------------
                                        Jan-Oct             Nov-Dec             Jan-Oct             Nov-Dec
----------------------------------------------------------------------------------------------------------------
                    2002 quotas adjusted for overages in final 2002 specifications based on:
 
2001 Jan-Oct landings compared                    x   ..................  ..................  ..................
 to annual 2001 quotas
 
                    2003 quotas adjusted for overages in final 2003 specifications based on:
 
2002 Jan-Oct landings compared    ..................  ..................                  X   ..................
 to annual 2002 quotas
2001 Nov-Dec landings compiled    ..................                  X   ..................  ..................
 during 2002
2001 Jan-Oct landings received                    X   ..................  ..................  ..................
 in 2002 (late reports)
----------------------------------------------------------------------------------------------------------------

Scup

    During November of each year, all available landings data for that 
year for January 1 - October 31 will be compiled and compared to that 
year's Winter I (Jan-Apr) and Summer (May-Oct) quota allocations. Any 
overages will be determined and required deductions will be made to the 
Winter I and/or Summer allocations for the upcoming fishing year in the 
final rule that establishes those measures (to be published by December 
31).
    By June 30 of the following year, all available landings data for 
the prior year's Winter II quota period (November-December) will be 
compiled and compared to the Winter II quota allocation for that year. 
Any overages will then be determined and required deductions will be 
made to the Winter II allocation for the current fishing year. The 
public will be informed of this adjustment in a Federal Register 
notification published in July of the current fishing year. Any further 
overages identified as the result of late data submitted for any of a 
given year's quota periods will be applied to the quota allocations for 
the next fishing year.
    Table 2 provides an example of how the quota counting procedures 
established in this final rule will function with respect to the 
establishment of the 2002 and 2003 annual scup quota allocations.

                                   Table 2. Calculation of scup quota overages
----------------------------------------------------------------------------------------------------------------
                                             2001 Fishing Year                       2002 Fishing Year
           Scup Quotas           -------------------------------------------------------------------------------
                                        Jan-Oct             Nov-Dec             Jan-Oct             Nov-Dec
----------------------------------------------------------------------------------------------------------------
 2002 quotas for Winter I and Summer quota periods adjusted for overages in final 2002 specifications based on:
 
2001 Jan-Oct landings compared                    x   ..................  ..................  ..................
 to annual 2001 Winter I and
 Summer quotas

[[Page 6879]]

 
 
   2002 quota for Winter II quota period adjusted for overages in Federal Register notice published July 2002,
                                                    based on:
 
2001 Nov-Dec landings compared    ..................                  X   ..................  ..................
 to 2001 Winter II quota
 
 2003 quotas for Winter I and Summer quota periods adjusted for overages in final 2003 specifications based on:
 
2002 Jan-Oct landings compared    ..................  ..................                  X   ..................
 to 2002 Winter I and Summer
 quotas
Additional 2001 Jan-Dec landings                  X                   X   ..................  ..................
 compiled during 2002 (late
 reports)
 
   2003 quota for Winter II adjusted for overages in Federal Register notice published in July 2003, based on:
 
2002 Nov-Dec landings compared    ..................  ..................  ..................                  X
 to 2002 Winter II quota
----------------------------------------------------------------------------------------------------------------

Black Sea Bass

    During November of each year, all available landings data for that 
year for Quarters 1-3 (January 1 - September 30) received by the cut-
off date of October 31 will be compiled and compared to that year's 
quota allocations for Quarters 1, 2 and 3. Any overages will be 
determined and required deductions will be made to the Quarter 1, 2 or 
3 quota allocations for the upcoming fishing year in the final rule 
that establishes those measures (to be published by December 31).
    By June 30 of the following year, all available landings data for 
the prior year's Quarter 4 quota period (October-December) will be 
compiled and compared to the Quarter 4 allocation for that year. Any 
overage will be determined and required deductions will be made to the 
Quarter 4 allocation for the current fishing year. The public will be 
informed of this adjustment in a Federal Register notification 
published in July of the current fishing year. Any further overages 
identified as the result of late data submitted for any of a given 
year's quota periods will be applied to the quota allocations for the 
next fishing year.
    Table 3 provides an example of how the quota counting procedures 
established in this final rule will function with respect to the 
establishment of the 2002 and 2003 annual black sea bass quota 
allocations.

                              Table 3. Calculation of black sea bass quota overages
----------------------------------------------------------------------------------------------------------------
                                             2001 Fishing Year                       2002 Fishing Year
      Black Sea Bass Quotas      -------------------------------------------------------------------------------
                                       Jan-Sept             Oct-Dec            Jan-Sept             Oct-Dec
----------------------------------------------------------------------------------------------------------------
            2002 quotas for Quarters 1-3 adjusted for overages in final 2002 specifications based on:
 
2001 Jan-Sep landings received                    x   ..................  ..................  ..................
 by October 31 and compared to
 annual 2001 Quarter 1-3 quotas
 
    2002 quota for Quarter 4 adjusted for overages in Federal Register notice published July 2002, based on:
 
2001 Oct-Dec landings compared    ..................                  X   ..................  ..................
 to 2001 Quarter 4 quota
 
            2003 quotas for Quarters 1-3 adjusted for overages in final 2003 specifications based on:
 
2002 Jan-Sept landings received   ..................  ..................                  X   ..................
 by Oct 31 and compared to 2002
 Quarter 1-3 quotas
Additional 2001 Jan-Dec landings                  X                   X   ..................  ..................
 compiled during 2002 (late
 reports)
 
   2003 quota for Quarter 4 adjusted for overages in Federal Register notice published in July 2003, based on:
 
2002 Oct-Dec landings compared    ..................  ..................  ..................                  X
 to 2002 Quarter 4 quota
----------------------------------------------------------------------------------------------------------------

Comments and Responses

    One comment was received in support of the proposed measures, which 
NMFS is implementing through this final rule. The commentor stated its 
support for the proposed means of calculating quota overages for the 
summer flounder, scup, and black sea bass fisheries, and also supported 
the removal of the regulatory language specifying publication dates for 
annual management measures for these fisheries. The commentor felt that 
this regulatory amendment would address many of their concerns 
regarding the timing of annual specifications for the summer flounder, 
scup, and black sea bass fisheries.
    Response: Comment is acknowledged.

Changes From the Proposed Rule

    This final rule makes a technical amendment to Sec.  648.120(a), 
which specifies the annual exploitation targets

[[Page 6880]]

for scup. In Amendment 8 to the FMP the exploitation target specified 
for 2002 and thereafter was Fmax. The value of Fmax 
estimated in Amendment 8 corresponded to an exploitation rate of 19 
percent and thus Sec.  648.120(a) included that value. However, the 
Fmax estimate has changed and the 19-percent figure 
currently contained in the regulatory text is no longer correct. 
Therefore, the regulatory text is revised to clarify that the annual 
target exploitation rate is associated with Fmax, rather 
than a fixed percentage. There are no other changes from the proposed 
rule.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    In accordance with 5 U.S.C. 553(b)(B), the Administrator finds that 
advance notice and public comment on the portion of this rule that 
implements the technical change in the regulations for specifying the 
annual target exploitation rate for scup are not necessary. This 
technical change is not substantive. It merely modifies the regulations 
by incorporating a reference to F(max) instead of the numerical value 
of the exploitation rate associated with a specific value of F(max) 
since F(max) is not a constant and may change slightly over time. This 
modification is consistent with the FMP. Further, this technical change 
corrects a previous NMFS action that inadvertently removed this text 
from the Code of Federal Regulations and reinserted the numerical value 
of the exploitation rate associated with a previous estimate of F(max) 
that is no longer correct. This inadvertent revision was inconsistent 
with the FMP. The application of the exploitation rate associated with 
the current value of F(max) during the specification process resulted 
in a negligible change to the quota calculation. Any change to the 
overall quota would be further minimized and dispersed as the quota is 
allocated into the three quota periods. Any impacts that would be 
experienced by individual fishermen as a consequence of a change in the 
overall quota would be de minimus.
    This final rule's removal of publication date requirements for 
proposed annual fishing measures for these fisheries and modification 
of the procedure for tabulating landings in order to calculate quota 
overages are not substantive. These changes merely inform the public of 
the change in the agency's process for tabulating landings data in 
order to calculate overages for the upcoming and subsequent fishing 
year. This process does not change the proposition that all landings in 
excess of a state or period quota during a fishing year constitute an 
overage. As is currently the practice, changes to annual quotas to 
reflect the impacts of landings on the summer flounder, scup and black 
sea bass stocks would be made pursuant to future rulemakings. Because 
none of the measures in this final rule is substantive, the 30-day 
delay in effectiveness required by 5 U.S.C. 553(d) does not apply.
    This final rule does not contain 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 the proposed rule for this action would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this certification was published within the 
proposed rule. No comments were received regarding the economic impacts 
of this action. As a result no regulatory flexibility analysis was 
prepared.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    February 7, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, 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, 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, he/she will restore the overage that was deducted in 
error to the appropriate quota allocation. The Regional Administrator 
will publish a notice in the Federal Register announcing such 
restoration.
* * * * *

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


Sec.  648.120  Catch quotas and other restrictions.

    (a) Annual review. The Scup Monitoring Committee shall review the 
following data, subject to availability, on or before August 15 of each 
year: Commercial, recreational and research 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; impact 
of gear on the mortality of scup; and any other relevant information. 
This review will be conducted to determine the allowable levels of 
fishing and other restrictions necessary to achieve the F that produces 
the maximum yield per recruit (Fmax).
* * * * *
    (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

[[Page 6881]]

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, he/she will 
restore the overage that was deducted in error to the appropriate quota 
allocation. The Regional Administrator will publish a notice 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 notice published in the Federal Register during July of the 
following year. The overage deduction will be based on landings 
information available for the Winter II 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, he/she will restore the overage that was deducted in 
error to the appropriate quota allocation. The Regional Administrator 
will publish a notice 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 final rule. 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 
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 quarterly allocations will be deducted from the 
appropriate quota period allocation 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, he/she will restore the 
overage that was deducted in error to the appropriate quota allocation. 
The Regional Administrator will publish a notice in the Federal 
Register announcing the restoration.

[[Page 6882]]

    (4) For the Quarter 4 quota period, landings in excess of the 
quarterly allocation will be deducted from the Quarter 4 period 
allocation for the following year in a notice published in the Federal 
Register during July of 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, he/she will restore the 
overage that was deducted in error to the appropriate quota allocation. 
The Regional Administrator will publish a notice in the Federal 
Register announcing the restoration.
* * * * *
[FR Doc. 02-3667 Filed 2-13-02; 8:45 am]
BILLING CODE 3510-22-S