[Federal Register Volume 68, Number 212 (Monday, November 3, 2003)]
[Rules and Regulations]
[Pages 62250-62254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27601]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 030912231-3266-02; I.D. 090403A]
RIN 0648-AR43


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; Framework Adjustment 3

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

ACTION: Final rule; notification of scup Winter II quota adjustment and 
possession limit adjustment for 2003.

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SUMMARY: NMFS issues this final rule to implement measures contained in 
Framework Adjustment 3 (Framework 3) to the Summer Flounder, Scup, and 
Black Sea Bass Fishery Management Plan (FMP) to allow the rollover of 
unused commercial scup quota from the Winter I period to the Winter II 
period, and to change the regulations regarding the scup commercial 
quota counting procedures. NMFS also adjusts the 2003 Winter II 
commercial scup quota and possession limit.

DATES: This rule is effective November 1, 2003, except for Sec.  
648.120(b)(4) and Sec.  648.120(d)(5) which are effective April 1, 
2004.

ADDRESSES: Copies of the Framework 3 document, including the Regulatory 
Impact Review (RIR), the Initial Regulatory Flexibility Analysis 
(IRFA), and the Environmental Assessment, and other supporting 
documents for the framework adjustment are available from Daniel 
Furlong, Executive Director, Mid-Atlantic Fishery Management Council, 
Room 2115, Federal Building, 300 South Street, Dover, DE 19901-6790. 
The Framework 3 document is also accessible via the Internet at http://www.mafmc.org. The Final Regulatory Flexibility Analysis (FRFA) 
consists of the IRFA, public comments and responses contained in this 
final rule, and the summary of impacts and alternatives contained in 
this final rule. Copies of the small entity compliance guide are 
available from Patricia A. Kurkul, Regional Administrator, Northeast 
Region, National Marine Fisheries Service, One Blackburn Drive, 
Gloucester, MA 01930-2298.

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 Framework 3 to the FMP. Details concerning the 
justification for and development of Framework 3 and the implementing 
regulations were provided in the preamble to the proposed rule (68 FR 
55283, September 24, 2003) and are not repeated here.
    The summer flounder, scup, and black sea bass fisheries are managed 
cooperatively by the Atlantic States Marine Fisheries Commission 
(Commission) and the Mid-Atlantic Fishery Management Council (Council), 
in consultation with the New England and South Atlantic Fishery 
Management Councils. The management unit for scup (Stenotomus 
chrysops), specified in the FMP, is defined as U.S. waters of the 
Atlantic Ocean from 35[deg]13.3' N. lat. (the latitude of Cape Hatteras 
Lighthouse, Buxton, NC) northward to the U.S./Canada border. The FMP 
and its implementing regulations found at 50 CFR part 648, subparts A, 
G (summer flounder), H (scup), and I (black sea bass), describe the 
process for specifying annual commercial scup measures that apply in 
the Exclusive Economic Zone (EEZ). The states manage these fisheries 
within 3 miles of their coast, under the Commission's Interstate Summer 
Flounder, Scup, and Black Sea Bass FMP. The Federal regulations govern 
vessels fishing in the EEZ, as well as vessels possessing a Federal 
fisheries permit, regardless of where they fish.
    The commercial scup fishery is managed under a system that 
allocates the annual quota to three periods: Winter I, January-April 
(45.11 percent); Summer, May-October (38.95 percent); and Winter II, 
November-December

[[Page 62251]]

(15.94 percent). During the Winter periods, the quota is monitored on a 
coastwide basis. During the Summer period, the quota is also monitored 
on a coastwide basis, but the Commission uses a state-by-state 
allocation system to help manage the Federal quota. The Federal 
commercial scup fishery is closed coastwide when the allocation for a 
period is reached. In addition, any overages during a quota period are 
subtracted from that period's allocation for the following year. Any 
quota overages by a state during the Summer period (whether or not the 
total Summer period quota is exceeded) are subtracted by the Commission 
from the state's Summer period share the following year. The current 
regulations do not allow for the transfer of quota between periods 
within a fishing year. The final rule to implement the 2003 annual 
quota specifications (68 FR 60, January 2, 2003) established possession 
limits of 15,000 lb (6,804 kg) per trip during Winter I and 1,500 lb 
(680 kg) during Winter II, and specified that the Winter I possession 
limit be reduced to 1,000 lb (454 kg) per trip when 80 percent of the 
commercial quota allocated to that period is projected to be harvested.

Quota Rollover From Winter I to Winter II

    This final rule implements a process, for years in which the full 
Winter I commercial scup quota is not harvested, to allow unused quota 
from the Winter I period to be added to the quota for the Winter II 
period. During the development of this framework adjustment, the 
Council considered and analyzed three alternatives for unused Winter I 
quota: Taking no action, which would continue the current regulations 
without the ability to transfer unused quota between periods 
(Alternative 1); the proposed option (Alternative 2); and combining the 
Winter I and Winter II quotas into a single quota spanning the two 
periods (Alternative 3). A fourth option, to roll over unused quota 
from both the Winter I and Summer periods into Winter II, was 
considered but rejected for further analysis due to the 
impracticability of monitoring the Summer period quota through the end 
of the Summer period, calculating the amount of unused combined Winter 
I and Summer period quota, if any, and effecting the quota rollover 
prior to the beginning of the Winter II period. The proposed option was 
selected by the Council because, under Alternative 1, regulatory 
discarding in Winter II would continue to occur, and Alternative 3 
would introduce the risk that the entire combined winter quota could be 
taken during Winter I, resulting in no fishery during Winter II. 
Additionally, it would be difficult to develop possession limits that 
would accommodate the merged periods under Alternative 3. Alternative 2 
is not associated with any risk to the scup stock or stocks of other 
species, and should provide economic and social benefits while meeting 
the objectives of National Standard 1.
    In addition, commercial possession limits for the Winter II period 
will be adjusted, based on the amount of quota rolled over from the 
Winter I period. It is the Council's intention that the quota rollover 
and any necessary possession limit adjustments will be accomplished via 
a notification of changes prior to the beginning of the Winter II 
fishery.
    For 2003, the Winter II quota is 1,979,689 lb (897,981 kg), and the 
best available landings information indicates that 1,873,050 lb 
(849,601 kg) remain of the Winter I quota. Consistent with the intent 
of Framework 3, the full amount of unused 2003 Winter I quota is 
transferred to Winter II, resulting in a revised 2003 Winter II quota 
of 3,852,739 lb (1,747,573 kg). In addition to the quota transfer, the 
2003 Winter II possession limit is increased to 4,000 lb (1,814 kg) per 
trip to provide an appropriate opportunity for fishing vessels to 
obtain the increased Winter II quota. For 2004 and future years, the 
Council will recommend Winter II possession limits, adjusted as 
appropriate based on the amount rolled over from Winter I to Winter II, 
as part of the annual commercial quota specification process.

Quota Counting Procedures

    The distribution of scup is such that they are occasionally 
available in nearshore (state) waters prior to the beginning of the 
states' Summer period (May 1). This final rule implements a mechanism, 
for years when the Winter I commercial scup quota is completely 
harvested and the Winter I fishery is closed prior to April 15, and 
upon a state's written request, to allow for commercial landings of 
scup by state-only permitted vessels in said state that occur from 
April 15 through April 30 to be counted against that state's Summer 
quota allocation. Because harvest in state waters during the Summer 
period is under the jurisdiction of the Commission, this is primarily a 
Commission issue, but this final rule implements a change to the 
Federal regulations regarding the quota counting procedures to effect 
the change to the Commission allocation system.
    During the development of this framework adjustment, the Council 
considered and analyzed two options for the quota counting procedures: 
A no-action alternative, which would not allow these landings to be 
counted against the Summer period quota, but would continue to require 
that they be recorded as an overage to the Winter I period quota; and 
the proposed option. The action implemented was selected by the Council 
because it would not alter the current quota period or allocations, 
would require only a minimal change to current Federal regulations, 
would reduce the negative effects associated with harvest demand when 
scup availability is high but landings are not allowed, and would not 
place the scup stock or stocks of other species at risk.

Changes from the Proposed Rule

    As indicated in the proposed rule, the amount of unused Winter I 
quota to be transferred to Winter II has been updated based on the 
latest (and best available) landings information for the 2003 Winter I 
period. The resulting 2003 Winter II quota is 3,852,739 lb (1,747,573 
kg) rather than 4,183,440 lb (1,897,576 kg) as originally proposed. The 
reason for the decrease is that, in preparation of the final rule, 
Winter I landings information from dealer weighout reports became 
available and were used, in combination with the Winter I interactive 
voice response data (used in preparation of the proposed rule), to best 
estimate total landings for the Winter I period.
    For clarification purposes, in Sec.  648.120(b)(2) and Sec.  
648.120(c), the terms ``landing limits'' and ``landings limits'' are 
changed to ``possession limits,'' and in the first sentence of Sec.  
648.120(d)(3), the phrase ``for each quota period'' is changed to ``for 
the Winter I period.'' The second sentence of Sec.  648.120(d)(3) is 
corrected to clarify that if, in any year that the Regional 
Administrator determines that the landings of scup during Winter I are 
less than the Winter I quota for that year, he/she shall increase the 
Winter II quota for that year by the amount of the Winter I 
underharvest. The first sentence of Sec.  648.120(d)(5) is corrected to 
clarify the process by which a state may apply to the Regional 
Administrator for authorization to count scup landings in state waters 
against the Summer period quota.

Comments and Responses

    One comment was received on the proposed rule, although the comment 
did not specifically address the proposed scup action.
    Comment: The commenter expressed general support for marine 
protected areas, reduction of commercial quotas in general, elimination 
of bottom trawling

[[Page 62252]]

and longlining, and better enforcement of fisheries regulations. The 
commenter also objected to NOAA Fisheries not accepting comments via e-
mail on this action.
    Response: This rule implements measures designed to provide for 
improved utilization of the Federal commercial scup quota, and to 
improve efficiency of this fishery. While NMFS acknowledges the 
importance of the issues raised by the commenter, this rule is not the 
proper mechanism to address these general issues.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    During the Winter scup quota periods, the quota is monitored on a 
coastwide basis, and the commercial scup fishery is closed coastwide 
when the allocation for a period is reached. The current regulations do 
not allow for the transfer of quota between periods within the year. 
Underharvest of the Winter I quota occurred in 2002 and 2003, leaving 
available quota unused, whereas quota for the Winter II period has been 
harvested early each year since 1999. Under the current management 
system, negative economic impacts may result from early closure of the 
Winter II fishery. In an effort to lengthen the fishing season under a 
relatively small quota, a possession limit is implemented, but this can 
result in regulatory discards of fish caught in excess of the 
possession limit. Any overages during a Winter quota period are 
subtracted from the period's allocation for the following year.
    This action relieves a restriction by implementing a process, for 
years in which the full Winter I commercial scup quota is not 
harvested, to allow unused quota from the Winter I period to be rolled 
over to the quota for the Winter II period. Without this action, the 
Winter II fishery must close when the initial Winter II quota is 
reached, even if substantial quota remains from the Winter I period. 
This action allows the Winter II fishery to remain open longer, by 
allowing vessels to take advantage of remaining Winter I quota. 
Commercial possession limits for the Winter II period also are adjusted 
upward, based on the amount of quota rolled over from the Winter I 
period, to allow for the landing of scup that were available during the 
2003 Winter I period, but were not harvested. This action allows for 
improved coordination of timing of the fishery's harvest potential with 
the availability of the resource. Additionally, because the Winter II 
quota typically has been harvested before the end of the quota period, 
the rollover of quota from the Winter I period is expected to extend 
the Winter II season and have a positive economic impact on the ports 
and communities associated with the vessels participating in this 
fishery. Therefore, the 30-day delayed effectiveness period for the 
management measures regarding the quota rollover from Winter I to 
Winter II is not applicable, as this rule relieves restrictions 
pursuant to 5 U.S.C. 553(d)(1).
    Included in this final rule is the Final Regulatory Flexibility 
Analysis (FRFA) prepared pursuant to 5 U.S.C. 604(a). The FRFA 
incorporates the IRFA, the comments and responses to the proposed rule, 
and the analyses completed in support of this action. A copy of the 
IRFA is available from the Council (see ADDRESSES).
    The preamble to the proposed rule included a detailed summary of 
the analyses contained in the IRFA, and that discussion is not repeated 
here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being taken, and 
the objectives of and legal basis for this final rule are explained in 
the preambles to the proposed rule and this final rule and are not 
repeated here.

Summary of Significant Issues Raised in Public Comments

    One comment was received during the comment period on the proposed 
rule, although it did not pertain to the economic impacts of this rule. 
No significant issues were raised and, therefore, no changes to the 
proposed rule were required to be made as a result of public comments. 
For a summary of the comment received, refer to the section above 
titled ``Comments and Responses.''

Description and Estimate of Number of Small Entities to which Rule Will 
Apply

    Federal Northeast permit data indicate that there were 878 vessels 
with scup commercial permits in 2001. This action could affect any 
commercial vessel holding an active Federal Northeast scup permit by 
providing permit holders with an increased opportunity to harvest scup 
during the Winter II period, if some portion of the Winter I quota for 
that year is unused. The Summer period allocation element of this 
action would affect only how certain landings are attributed, and would 
not affect the ability of vessels holding only a state permit to land 
and sell scup during a Federal closure.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance 
requirements are included in this final rule.

Description of the Steps Taken to Minimize Economic Impact on Small 
Entities

    It is not possible to further mitigate economic impacts on small 
entities because the Council selected the alternative with most 
positive economic impacts relative to the other alternatives determined 
to achieve the biological objectives. Specification of commercial 
quotas and possession limits is constrained by the conservation 
objectives of the FMP, and implemented at 50 CFR part 648 under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act).
    Under the no-action quota rollover alternative, the current 
allocation system as specified in the FMP would remain unchanged, and 
any negative economic impacts associated with it could persist. More 
specifically, a portion of the annual quota allocated to Winter I may 
be left unharvested, which would result in foregone economic 
opportunities to the fishing industry. Additionally, the existing 
regulations require that once the Winter II quota has been achieved, 
additional scup captured by the fishery operating during that time of 
year be discarded.
    Allowing the transfer of unused scup quota from the Winter I period 
to the Winter II period could potentially increase landings of scup 
during the Winter II period. Applying the nominal average ex-vessel 
price of scup for the 1998-2002 Winter II period of $0.80/lb ($1.76/
kg), and assuming the transfer of 1,873,050 lb (849,601 kg), the 
additional amount of scup available for harvest during the 2003 Winter 
II period would be valued at approximately $1.5 million. If this 
increase in revenue is equally distributed among the 213 vessels that 
landed scup during the 2002 Winter II period, then overall ex-vessel 
gross revenues could increase by $7,034 per vessel. However, as it is 
possible that the average price for scup during Winter II may decrease, 
given the potential increase in scup landings, the estimate of the 
increase to ex-vessel gross revenues most likely represents an upper 
limit.
    The proposed Winter II possession limit for 2003 of 4,000 lb (1,814 
kg) per trip is not expected to impact the scup fishery negatively. In 
fact, the increased

[[Page 62253]]

possession limit may have positive impacts by providing the market a 
regular product supply, and avoiding market gluts and price 
fluctuations.
    It is expected that the rollover of unused quota from Winter I to 
Winter II would reduce social burdens associated with early closures 
that may occur under the current system for managing scup, as it would 
preserve fishing opportunities that would not be available if the scup 
fishery was closed. By extension, it is expected that maintaining 
fishing opportunities would have a positive impact on the ports and 
communities associated with the vessels participating in this fishery.
    The Council determined that the impacts of the combination of 
Winter I and Winter II into one period would be similar to those for 
the action implemented. However, under this alternative, it is possible 
that the entire quota could be harvested during Winter I. If this were 
to occur, fishermen would not be able to fish for scup during the 
Winter II period, potentially disrupting product supply, increasing 
discards, and contributing to price fluctuations, as well as severely 
constraining fishing opportunities for those fishermen that depend upon 
access to the Winter II quota period fishery. The Council selected the 
action being implemented under this final rule because it would provide 
the maximum economic benefit to the fishing industry by ensuring that 
any unused Winter I period scup quota would be made available in the 
Winter II period.
    The change to the quota counting procedures is not expected to 
affect overall scup landings, as total landings would continue to be 
restricted to the annual commercial quota. It is possible that, if the 
Winter I fishery were closed and inshore fishermen were allowed to land 
and sell scup, scup prices could increase. However, given the short 
length of time that inshore fishermen would have to land any scup 
harvested during a Winter I closure, i.e., April 15 through April 30, 
it is not expected that the scup price would be significantly affected. 
Nevertheless, selling scup harvested by inshore fisheries prior to May 
1 during a Winter I closure would likely provide economic and social 
benefits to inshore fisheries. It is possible that the preferred 
alternative could result in the Summer period quota being harvested 
earlier. This would depend on the amount of the Summer quota, numbers 
of fishermen that may participate in an early summer fishery, and/or 
the amount of scup that could potentially be landed after April 15 and 
prior to May 1 in the event of a Winter I closure. However, due to lack 
of information on these factors, this was not analyzed in detail.

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 rulemaking process, a small entity compliance guide (the guide) 
was prepared. Copies of the guide will be sent to all holders of 
commercial Federal scup fishery permits. The guide will be available on 
the Internet at http://www.nero.noaa.gov. Copies of the guide can also 
be obtained from the Regional Administrator (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fishing, Fisheries, Reporting and recordkeeping requirements.

    Dated: October 29, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons stated in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.120, paragraphs (b)(2), (b)(4), and (c) are revised; 
paragraph (d)(3) is redesignated as paragraph (d)(4) and the 
introductory text is revised; and new paragraphs (d)(3) and (d)(5) are 
added to read as follows:


Sec.  648.120  Catch quotas and other restrictions.

* * * * *
    (b) * * *
    (2) Possession limits for the Winter I and Winter II periods, 
including possession limits that result from potential rollover of 
quota from Winter I to Winter II. The possession limit is the maximum 
quantity of scup that is allowed to be landed within a 24-hour period 
(calendar day).
* * * * *
    (4) 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, except as provided 
in paragraph (d)(5) of this section.
* * * * *
    (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, possession limits for the Winter I and 
Winter II periods, including possession limits that result from 
potential rollover of quota from Winter I to Winter II, the percentage 
of landings attained during the Winter I fishery at which the 
possession 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) The Regional Administrator will monitor the harvest of 
commercial quota for the Winter I period based on dealer reports, state 
data, and other available information and shall determine the total 
amount of scup landed during the Winter I period. In any year that the 
Regional Administrator determines that the landings of scup during 
Winter I are less than the Winter I quota for that year, he/she shall 
increase, through publication of a notification in the Federal 
Register, provided such rule complies with the requirements of the 
Administrative Procedure Act, the Winter II quota for that year by the 
amount of the Winter I underharvest.

[[Page 62254]]

 The Regional Administrator shall also adjust, through publication of a 
notification in the Federal Register, the Winter II possession limits 
consistent with the amount of the quota increase, based on the 
possession limits established through the annual specifications-setting 
process.
    (4) 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, except as provided 
in paragraph (d)(5) of this section. 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:
* * * * *
    (5) During a fishing year in which the Winter I quota period is 
closed prior to April 15, a state may apply to the Regional 
Administrator for authorization to count scup landed for sale in that 
state from April 15 through April 30 by state-only permitted vessels 
fishing exclusively in waters under the jurisdiction of that state 
against the Summer period quota. Requests to the Regional Administrator 
to count scup landings in a state from April 15 through April 30 
against the Summer period quota must be made by letter signed by the 
principal state official with marine fishery management responsibility 
and expertise, or his/her designee, and must be received by the 
Regional Administrator no later than April 15. Within 10 working days 
following receipt of the letter, the Regional Administrator shall 
notify the appropriate state official of the disposition of the 
request.
* * * * *
[FR Doc. 03-27601 Filed 10-29-03; 3:15 pm]
BILLING CODE 3510-22-S