[Federal Register Volume 68, Number 42 (Tuesday, March 4, 2003)]
[Rules and Regulations]
[Pages 10181-10184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5043]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 021120279-3047-02 ; 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: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this final rule to implement approved measures 
contained in Amendment 13 to the Summer Flounder, Scup, and Black Sea 
Bass Fishery Management Plan (FMP). Pursuant to the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) and the 
FMP, this final rule establishes an annual coastwide quota for black 
sea bass and allows vessels to fish under a Southeast Region Snapper/
Grouper permit and to retain their Northeast Region Black Sea Bass 
Permit during a Federal fishery closure. Finally, this final rule 
requires 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: The measures contained in the final rule are effective on March 
31, 2003.

ADDRESSES: Copies of the FMP, Amendment 13, its Regulatory Impact 
Review (RIR) including the Final Regulatory Flexibility Analysis 
(FRFA), 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. The FEIS/RIR/FRFA is also accessible via the 
Internet at http://www.nero.nmfs.gov.

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

SUPPLEMENTARY INFORMATION: This final rule implements measures 
contained in Amendment 13, which was approved by NMFS on behalf of the 
Secretary of Commerce (Secretary) on January 29, 2003. 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.
    Details concerning the justification for and development of 
Amendment 13 and the implementing regulations were provided in the 
preamble to the proposed rule (67 FR 72131, December 4, 2002) and are 
not repeated here.

Approved Measures

    To implement Amendment 13, this final rule: (1) establishes an 
annual (calendar year) coastwide quota for the commercial black sea 
bass fishery to replace the current quarterly quota allocation system; 
and (2) allows vessels to retain their Northeast Region Black Sea Bass 
Permit during a Federal fishery closure; previously, vessels issued 
both a Northeast Region Black Sea Bass Permit and a Southeast Region 
Snapper/Grouper Permit were required to relinquish their Northeast 
Black Sea Bass Permits for 6 months if they wanted 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, this final rule revises the presumptions in 50 CFR 
648.14(x) for summer flounder, scup, and black sea bass. NMFS 
determined that Sec.  648.14(x) erroneously omitted 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 final rule adds 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, 
does not apply to vessels issued a Southeast

[[Page 10182]]

Region Snapper/Grouper permit and a Northeast Black Sea Bass permit 
that are fishing for black sea bass south of Cape Hatteras during a 
closure of the black sea bass fishery for the area north of Cape 
Hatteras.

Classification

    The Administrator, Northeast Region, NMFS, determined that 
Amendment 13, which this final rule implements, is necessary for the 
conservation and management of the black sea bass fishery and that it 
is consistent with the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A final environmental impact statement was prepared for Amendment 
13; a notice of availability was published on October 30, 2002 (67 FR 
66103). NMFS determined, upon review of the Amendment/FEIS and public 
comments, that approval and implementation of Amendment 13 is 
environmentally preferable to the status quo. The FEIS demonstrates 
that it contains management measures able to mitigate, to the extent 
possible, all possible social and economic adverse effects while 
minimizing risks to the resource and its environment.
    An FRFA was completed for this action that contains the items 
specified in 5 U.S.C. 604(a). The FRFA supplements the IRFA and 
contains a summary of the analyses completed in support of this action. 
A copy of the analyses is available from the Council (see ADDRESSES). A 
description of the action, a discussion of why it is being considered, 
and its legal basis are also contained in the preamble to the proposed 
rule and are not repeated here. The summary of the analyses of the 
potential impacts of the management alternatives considered in the FMP 
are provided in the Classification section of the proposed rule and are 
not repeated here. The items specified in 5 U.S.C. 604(a) are 
summarized as follows:

Public Comments

    No comments were received on the IRFA, or on the measures contained 
in the proposed rule. Comments received in response to the Notice of 
Availability for the amendment pertained to issues other than economic 
impacts of the action.

Number of Small Entities

    The IRFA identified 727 individual vessels that were active in the 
black sea bass fishery in 2000, all of which appear to be small 
entities.

Permits and Reporting Requirements

    No additional reporting requirements are included in this final 
rule.

Minimizing Significant Economic Impacts on Small Entities

    The Council analyzed several quota program alternatives and 
selected the alternative (Federal coastwide quota) that provides the 
most flexibility to the states in managing their fisheries under the 
state-by-state quota program approved by the Commission. This 
alternative, relative to the others considered, is the one most 
beneficial for fishermen as it does not affect adversely the 
distribution of fishing opportunities from state to state, reduces 
uncertainty regarding availability of quota, and allows for more 
traditional fishing and trip planning. Regulations implemented by the 
states under the Commission'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. Any unavoidable adverse effects of the 
quota program should be minimized due to the compatibility of the 
Federal coastwide annual quota program and the Commission's FMP.
    Although NMFS was unable to conduct analyses on the 
disproportionality or profitability of the regulations as part of the 
overall economic analysis due to a lack of quantifiable data, NMFS did 
project changes to gross revenues for vessels. According to both the 
Northeast and Southeast Region databases, allowing vessels issued both 
a Northeast Region Black Sea Bass Permit and a Southeast Region 
Snapper/Grouper Permit to keep 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.
    For a description of the alternatives considered but rejected, see 
the IRFA discussion in the Classification section of the proposed rule 
(67 FR 72131).

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rule making process, a small entity compliance guide (the guide) 
was prepared. Copies of the guide will be sent to all holders of 
Federal permits issued for the black sea bass fishery. In addition, 
copies of this final rule and guide are available from the Regional 
Administrator (see ADDRESSES) and on the Internet at http://www.nero.noaa.gov.
    This final rule contains no collection-of-information requirements.

List of Subjects in 50 CFR Part 648

    Fishing, Fisheries, Reporting and recordkeeping requirements.

    Dated: February 26, 2003.
William T. Hogarth,
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 (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

[[Page 10183]]

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, paragraphs (b)(1), (b)(2), and (d) are revised 
to read as follows:


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 March 31, 2003, 
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 annual 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

[[Page 10184]]

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.
* * * * *
[FR Doc. 03-5043 Filed 2-27-03; 3:38 pm]
BILLING CODE 3510-22-S