[Federal Register Volume 67, Number 233 (Wednesday, December 4, 2002)]
[Proposed Rules]
[Pages 72131-72134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30756]



[[Page 72131]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 021120279-2279-01; I.D. 102302B]
RIN 0648-AN12


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Summer 
Flounder, Scup, and Black Sea Bass Fisheries; Summer Flounder, Scup, 
and Black Sea Bass Fishery Management Plan

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 13 to the 
Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) 
developed by the Mid-Atlantic Fishery Management Council (Council). 
Pursuant to the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) and the FMP, this proposed rule would 
establish an annual coastwide quota for black sea bass and eliminate a 
provision requiring certain vessels to cancel their Northeast Region 
Black Sea Bass Permits during a fishery closure if they intend to 
continue fishing for black sea bass south of Cape Hatteras. Finally, 
this proposed rule would require that vessels issued a Federal 
moratorium permit for summer flounder, scup, and black sea bass be 
subject to the presumption that any fish of these species on board were 
harvested from the exclusive economic zone (EEZ).

DATES: Comments must be received on or before 5 p.m., local time, on 
January 21, 2003. (Note: must end no later than the date of the close 
of the comment period on NOA for FMP)

ADDRESSES: Written comments should be sent to Patricia A. Kurkul, 
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn 
Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on Amendment 13 to the Summer Flounder, Scup, and Black Sea 
Bass FMP.'' Comments also may be sent via facsimile (fax) to (978) 281-
9135. Comments will not be accepted if submitted via e-mail or 
Internet.
    Copies of the FMP, Amendment 13, its Regulatory Impact Review (RIR) 
including the Initial Regulatory Flexibility Analysis (IRFA), and the 
Final Environmental Impact Statement (FEIS) are available from Daniel 
Furlong, Executive Director, Mid-Atlantic Fishery Management Council, 
Federal Building, Room 2115, 200 S. New Street, Dover, DE 19904-6790.

FOR FURTHER INFORMATION CONTACT: Peter W. Christopher, Fishery Policy 
Analyst, 978-281-9288, fax 978-281-9135, or email at 
[email protected].

SUPPLEMENTARY INFORMATION: The purpose of Amendment 13 is to rectify 
problems in the black sea bass commercial fishery (specifically 
regarding the temporal and geographic distribution of landings and 
permit relinquishment requirements for certain vessels) and to consider 
management measures to minimize the adverse effects of fishing on 
essential fish habitat. Amendment 13 proposes a new quota program for 
the black sea bass commercial fishery and a change to the black sea 
bass permit requirements.

Black Sea Bass Management Measures

    The black sea bass fishery is managed in Federal waters under the 
FMP and by the states through the Atlantic States Marine Fisheries 
Commission (ASMFC). Throughout the development of Amendment 13, the 
ASMFC was expected to consider and approve a state-by-state quota 
program. In August 2002, the ASMFC adopted state-by-state quota 
allocations for the states of Maine through North Carolina. Each state 
is required to establish management measures to ensure that its share 
of the quota is not exceeded.
    With respect to the black sea bass fishery, the Council was 
concerned primarily with the quarterly quota program, which was causing 
a variety of problems in the fishery. Although the quarterly quota 
program was intended to ensure sustained landings of the species 
throughout each quarter, the last three quarters in 1999 and 2000 were 
closed early because the quotas were reached. Because some of the 
closures occurred early in the quarter, fishers in some states were not 
able to fish for black sea bass during the same time periods they had 
fished in the past. Upon reopening of the fishery in a subsequent 
quarter, market gluts and drops in prices occurred as high volumes of 
fish were landed. Further, the first quarter quotas in 1998 through 
2000 were not harvested, indicating a problem in the overall allocation 
of the quota. Inequities in the quarterly quota program have arisen as 
higher amounts of landings have shifted to the north, leaving southern 
regions without the landings that may be needed to sustain the fishery 
in those regions. Finally, during a closure of the fishery, vessels in 
North Carolina with both a Northeast Region Black Sea Bass Permit and a 
Southeast Region Snapper/Grouper Permit are required to relinquish 
their Northeast Black Sea Bass Permits for 6 months if they want to 
continue to fish for black sea bass south of Cape Hatteras under their 
Snapper/Grouper Permits. The requirement to relinquish the permit for 6 
months leaves these few vessels with no ability to fish for black sea 
bass north of Cape Hatteras when the fishery reopens in a subsequent 
quarter. The Council believed that this was inequitable and needed to 
be addressed in Amendment 13. The Council proceeded with Amendment 13, 
recognizing that any action it recommended would need to be compatible 
with the action taken by the ASMFC in order for management to be 
consistent and effective.
    The Council considered several alternatives to the current 
quarterly coastwide quota program, including state-by-state and 
regional quotas, state-by-state quotas with a coastwide quota 
component, subregional quotas with a coastwide component, quota by 
permit category, and quotas by gear type. The program most compatible 
with ASMFC allocations would have been a state-by-state quota program; 
however, the Administrator, Northeast Region, NMFS (Regional 
Administrator) commented during the development of Amendment 13 that a 
state-by-state quota program implemented for Federal waters could not 
be monitored effectively (with current monitoring methods) due to the 
small amounts of fish some states could be allocated. The Regional 
Administrator urged the Council to select a quota program that would 
have sufficiently large allocation shares that they could be 
effectively monitored by NMFS, or to devise a monitoring system 
sufficient to monitor small quotas that could be implemented in 
conjunction with the state-by-state quota program.
    The Council determined that it needed to select a quota program 
alternative that would meet the monitoring needs while remaining 
compatible with the state-by-state allocations adopted by the ASMFC. 
The Council selected an annual coastwide quota program that would 
facilitate ASMFC's state-by-state quota allocations. The Council 
determined that this was within the range of alternatives considered in 
the Draft Environmental Impact Statement (DEIS)

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because the impacts would be essentially the same as state-by-state 
allocations. The Council believes that the harvest of the coastwide 
quota will be extended throughout the year due to the management 
programs implemented by each state under the ASMFC's management plan.
    To implement Amendment 13, NMFS proposes to: (1) Establish an 
annual (calendar year) coastwide quota for the commercial black sea 
bass fishery to replace the current quarterly quota allocation system; 
and (2) eliminate the provision requiring vessels issued both a 
Northeast Region Black Sea Bass Permit and a Southeast Region Snapper/
Grouper Permit to relinquish their Northeast Black Sea Bass Permits for 
6 months if they want to continue to fish for black sea bass south of 
Cape Hatteras under their Snapper/Grouper Permits during a Federal 
black sea bass fishery closure.
    In addition, NMFS proposes to revise the presumptions in 50 CFR 
648.14(x) for summer flounder, scup, and black sea bass. During the 
review of this proposed rule, NMFS determined that Sec.  648.14(x) 
erroneously omits the presumption that summer flounder, scup, and black 
sea bass on board were caught in the EEZ for vessels issued moratorium 
permits under the three fisheries covered by the FMP. Therefore, this 
proposed rule would add the presumption that all summer flounder, scup, 
and black sea bass possessed on board a vessel issued a Federal permit 
under 50 CFR 648.4 are deemed to have been harvested from the EEZ 
within the management unit for the particular species. This 
presumption, as it pertains to black sea bass, would not apply to 
vessels issued a Southeast Region Snapper/Grouper permit and a 
Northeast Black Sea Bass permit that are fishing for black sea bass 
south of Cape Hatteras during a black sea bass fishery closure, north 
of Cape Hatteras.

Classification

    At this time, NMFS has not determined that Amendment 13 to the FMP, 
which this proposed rule would implement, is consistent with the 
national standards of the Magnuson-Stevens Act and other applicable 
laws. NMFS, in making that determination, will take into account the 
data, views, and comments received during the comment period.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    The Council prepared an IRFA that describes the economic impact 
this proposed rule, if adopted, would have on small entities. A 
description of the action, why it is being considered, and the legal 
basis for this action are contained in the preamble and in the SUMMARY. 
While the IRFA prepared for this action by the Council does not follow 
NMFS' current ``Guidelines for Economic Analysis of Fishery Management 
Actions,'' the analysis for this action provides an adequate 
description of the impacts on small entities for the purposes of the 
Regulatory Flexibility Act. Nevertheless, NMFS invites the public to 
comment specifically on the adequacy of the analysis using these 
criteria.
    The proposed measures, and the alternatives, for addressing 
inefficiencies and inequities in the black sea bass fishery could 
affect any commercial vessel holding an active Federal permit for black 
sea bass, as well as vessels that fish for black sea bass in state 
waters. Data from the Northeast permit application database show that 
1,119 commercial vessels are currently permitted to fish for black sea 
bass in Federal waters. Of these vessels, the Council considered the 
economic impacts on 727 vessels that were active in the black sea bass 
fishery in 2000. The analysis further investigated impacts on vessels 
by home state and affected counties. All of the federally permitted 
vessels, and vessels using the identified gear types listed above, 
readily fall within the Small Business Administration's (SBA) 
definition of small business and the RFA's definition of ``small 
entity.'' Therefore, all alternatives and analyses associated with this 
proposed rule necessarily are alternatives and analyses applicable to 
impacts on small entities.
    No additional recordkeeping and reporting requirements are included 
in this proposed rule.
    Regulations implemented by the states under the ASMFC's Fishery 
Management Plan for black sea bass, which include state-by-state quota 
allocations, would overlap, but would not duplicate or conflict with 
the Federal coastwide quota program proposed in this action. NMFS is 
not aware of any other Federal rules that duplicate, overlap, or 
conflict with the proposed action. Any unavoidable adverse effects of 
the proposed action should be minimized due to the compatibility of the 
Federal coastwide annual quota program and the ASMFC's FMP.

Black Sea Bass Quota Alternatives

    Under the proposed coastwide annual quota, the total number of 
vessels likely to be impacted by revenue losses of 5 percent or greater 
is expected to be similar to the number of vessels impacted under the 
state-by-state allocation alternative that is based on the best 5 
landing years for each state during the period 1988 to 1997 (the 
alternative included in the FEIS that best resembles the ASMFC's state-
by-state quota allocations). Relative to vessel revenues in 2000, the 
economic impacts for the 727 vessels participating in the black sea 
bass fishery range from expected revenue losses of less than 5 percent 
for a total of 137 vessels, to a loss in revenues of greater than or 
equal to 50 percent, for 12 vessels. An increase in revenue would be 
expected for 564 vessels. A total of 26 out of 727 vessels (3.6 
percent) considered in the analysis would be expected to suffer losses 
in revenue of 5 percent or greater relative to 2000 revenues. In 
addition, impacts were examined relative to a vessel's home state as 
reported on the vessel's permit application. Vessels with revenue 
losses exceeding 5 percent are concentrated in Barnstable and Suffolk 
Counties, Massachusetts. The proposed action alternative may further 
discourage derby-style fishing because landings would be constrained to 
the landings allowed under each state's management program to comply 
with the ASMFC's state-by-state quota allocations. Distributing the 
landings throughout the year would reduce the likelihood of an initial 
market glut and thus lowered black sea bass prices. Seasonal closures 
would be less likely, eliminating the economic burdens on fishermen 
that would have little or no income during a fishery closure.
    Several alternatives to the proposed coastwide annual quota 
(including the quarterly allocation, state-by-state allocation, and 
various allocations by fishery gear sector, permit category, or region) 
were considered in the FEIS for Amendment 13 to the FMP. Each of the 
alternatives was also broken into sub-alternatives based on historical 
black sea bass landings information from either 1988 through 1997, or 
1993 through 1997. Further, the quota by permit category alternative 
was broken down into alternatives with two or three permit categories, 
and the state-by-state quota alternative contained two sub-alternatives 
using the best 5 years of landings from either 1980 through 1997, or 
1988 through 1997. While the de minimus specification alternative is 
presented as a separate alternative in the FEIS and RIR, its impacts 
would be considered under the state-by-state quota program 
alternatives. The analysis concluded that none of these alternatives 
would minimize economic impacts on small entities relative to the 
proposed measures. NMFS is not aware

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of any other alternative that would achieve this action's objectives 
and minimize economic impacts on small entities.

Other Black Sea Bass Commercial Fishery Management Alternatives

    According to both the Northeast and Southeast Region databases, the 
proposed action to no longer require vessels issued both a Northeast 
Region Black Sea Bass Permit and a Southeast Region Snapper/Grouper 
Permit to relinquish their Northeast Region Black Sea Bass Permit 
during a fishery closure north of Cape Hatteras if they want to 
continue fishing for black sea bass south of Cape Hatteras under their 
Southeast Region Snapper Grouper Permit would affect five vessels. 
Because the action would allow vessels to continue fishing south of 
Cape Hatteras, it would have no negative impacts on the five affected 
vessels, or any other vessels that in the future may be affected by the 
proposed elimination of the restriction. In comparison, continuation of 
the status quo, or requiring vessels to relinquish their Northeast 
Region Black Sea Bass Permit during a closure, could contribute to 
revenue losses for vessels that would lose fishing time north of Cape 
Hatteras when the fishery re-opened. However, as noted, this would 
affect only 5 of the 727 vessels considered in the IRFA.

List of Subjects in 50 CFR Part 648

    Fishing, Fisheries, Reporting and recordkeeping requirements.

    Dated: November 29, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory ProgramsNational 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.  648.4, paragraph (b) is revised to read as follows:


Sec.  648.4  Vessel permits.

* * * * *
    (b) Permit conditions. Any person who applies for a fishing permit 
under this section must agree, as a condition of the permit, that the 
vessel and the vessel's fishing activity, catch, and pertinent gear 
(without regard to whether such fishing occurs in the EEZ or landward 
of the EEZ; and without regard to where such fish or gear are 
possessed, taken, or landed), are subject to all requirements of this 
part, unless exempted from such requirements under this part. All such 
fishing activities, catch, and gear will remain subject to all 
applicable state requirements. Except as otherwise provided in this 
part, if a requirement of this part and a management measure required 
by a state or local law differ, any vessel owner permitted to fish in 
the EEZ for any species except tilefish managed under this part must 
comply with the more restrictive requirement. Except as otherwise 
provided in this part, if a requirement of this part and a management 
measure required by a state or local law differ, any vessel owner 
permitted to fish in the tilefish management unit for tilefish managed 
under this part must comply with the more restrictive requirement. 
Owners and operators of vessels fishing under the terms of a summer 
flounder moratorium, scup moratorium, or black sea bass moratorium, or 
a spiny dogfish, or bluefish, commercial vessel permit must also agree 
not to land summer flounder, scup, black sea bass, spiny dogfish, or 
bluefish, respectively, in any state after NMFS has published a 
notification in the Federal Register stating that the commercial quota 
for that state or period has been harvested and that no commercial 
quota is available for the respective species. A state not receiving an 
allocation of summer flounder, scup, black sea bass, or bluefish, 
either directly or through a coast-wide allocation, is deemed to have 
no commercial quota available. Owners and operators of vessels fishing 
under the terms of the tilefish limited access permit must agree not to 
land tilefish after NMFS has published a notification in the Federal 
Register stating that the quota for the tilefish limited access 
category under which a vessel is fishing has been harvested. Owners or 
operators fishing for surfclams and ocean quahogs within waters under 
the jurisdiction of any state that requires cage tags are not subject 
to any conflicting Federal minimum size or tagging requirements. If a 
surfclam and ocean quahog requirement of this part differs from a 
surfclam and ocean quahog management measure required by a state that 
does not require cage tagging, any vessel owners or operators permitted 
to fish in the EEZ for surfclams and ocean quahogs must comply with the 
more restrictive requirement while fishing in state waters. However, 
surrender of a surfclam and ocean quahog vessel permit by the owner by 
certified mail addressed to the Regional Administrator allows an 
individual to comply with the less restrictive state minimum size 
requirement, as long as fishing is conducted exclusively within state 
waters.
* * * * *

    3. In Sec.  648.14, paragraphs (a)(96), (u)(3), (u)(11), (x)(3), 
(x)(6), and (x)(7) are revised to read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (96) Purchase or otherwise receive for commercial purposes black 
sea bass landed for sale by a moratorium vessel in any state, or part 
thereof, north of 35[deg]15.3' N. lat., after the effective date of the 
notification published in the Federal Register stating that the 
commercial annual quota has been harvested and the EEZ is closed to the 
harvest of black sea bass.
* * * * *
    (u) * * *
    (3) Land black sea bass for sale in any state, or part thereof, 
north of 35[deg]15.3' N. lat. after the effective date of the 
notification published in the Federal Register stating that the 
commercial annual quota has been harvested and the EEZ is closed to the 
harvest of black sea bass.
* * * * *
    (11) Possess black sea bass after the effective date of the 
notification published in the Federal Register stating that the 
commercial annual quota has been harvested and the EEZ is closed to the 
harvest of black sea bass, unless the vessel has been issued a 
Southeast Region Snapper/Grouper Permit and fishes for and possess 
black sea bass south of 35[deg]15.3' N. lat.
* * * * *
    (x) * * *
    (3) Summer flounder. All summer flounder retained or possessed on a 
vessel issued a permit under Sec.  648.4 are deemed to have been 
harvested in the EEZ.
* * * * *
    (6) Scup. All scup retained or possessed on a vessel issued a 
permit under Sec.  648.4 are deemed to have been harvested in the EEZ.
    (7) Black sea bass. All black sea bass retained or possessed on a 
vessel issued a permit under Sec.  648.4 are deemed to have been 
harvested in the EEZ, unless the vessel also has been issued a 
Southeast Region Snapper/Grouper permit and fishes for, retains, or 
possesses black sea bass south of 35[deg]15.3' N. lat.

    4. In Sec.  648.140, paragraph (d)(4) is removed and paragraphs 
(b)(1), (b)(2), and (d) are revised to read as follows:

[[Page 72134]]

Sec.  648.140  Catch quotas and other restrictions.

* * * * *
    (b) * * *
    (1) A commercial quota allocated annually, set from a range of zero 
to the maximum allowed to achieve the specified target exploitation 
rate, set after the deduction for research quota.
    (2) A commercial possession limit for all moratorium vessels may be 
set from a range of zero to the maximum allowed to assure that the 
annual coastwide quota is not exceeded, with the provision that these 
quantities be the maximum allowed to be landed within a 24-hour period 
(calendar day).
* * * * *
    (d) Distribution of annual quota. (1) Beginning on [insert 
effective date of the final rule], a commercial annual coastwide quota 
will be allocated to the commercial black sea bass fishery.
    (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 the commercial annual 
coastwide 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 coastwide quota will have been harvested; 
beginning on that date and through the end of the calendar year, the 
EEZ north of 35[deg]15.3' N. lat. will be closed to the possession of 
black sea bass. The Regional Administrator will publish notification 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) Landings in excess of the annual coastwide quota will be 
deducted from the quota 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 
annual coastwide 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 notification in the 
Federal Register announcing the restoration.
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[FR Doc. 02-30756 Filed 12-3-02; 8:45 am]
BILLING CODE 3510-22-S