[Federal Register Volume 69, Number 167 (Monday, August 30, 2004)]
[Proposed Rules]
[Pages 52847-52850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19623]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 040804226-4226-01; I.D. 071904C]
RIN 0648-AR50


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; Framework Adjustment 5

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 measures contained in Framework Adjustment 5 
(Framework 5) to the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan (FMP) that would allow for specification of the annual 
Total Allowable Landings (TAL) for multiple years. The intent is to 
provide flexibility and efficiency to the management of the species.

DATES: Comments must be received on or before September 14, 2004.

ADDRESSES: Copies of Framework 5, the Regulatory Impact Review (RIR), 
Initial Regulatory Flexibility Analysis (IRFA), and other supporting 
documents are available from Daniel Furlong, Executive Director, Mid-
Atlantic Fishery Management Council, Room 2115, Federal Building, 300 
South Street, Dover, DE 19901-6790. The RIR/IRFA is also accessible via 
the Internet at http://www.nero.nmfs.gov. Written comments on the 
proposed rule 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 
Framework 5.'' Comments may also be submitted via facsimile (fax) to 
978-281-9135, or via e-mail to the following address: [email protected]. 
Include in the subject line of the e-mail comment the following 
document identifier: ``Comments on Framework 5.'' Comments may also be 
submitted electronically through the Federal e-Rulemaking portal: http/
/www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Sarah McLaughlin, Fishery Policy 
Analyst, (978) 281-9279, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    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 units specified in the FMP include 
summer flounder (Paralichthys dentatus) in U.S. waters of the Atlantic 
Ocean from the southern border of North Carolina (NC) northward to the 
U.S./Canada border, and scup (Stenotomus chrysops) and black sea bass 
(Centropristis striata) in 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. Implementing regulations for 
these fisheries are found at 50 CFR part 648, subparts A, G (summer 
flounder), H (scup), and I (black sea bass).
    The current regulations outline an annual process for specifying 
the catch limits for the summer flounder, scup, and black sea bass 
commercial and recreational fisheries, as well as other management 
measures (e.g., mesh requirements, minimum fish sizes, gear 
restrictions, possession restrictions, and area restrictions) for these 
fisheries. The measures are intended to achieve the annual targets set 
forth for each species in the FMP, specified either as a fishing 
mortality (F) rate or an exploitation rate (the proportion of fish 
available at the beginning of the year that are removed by fishing 
during the year). Once the catch limits are established, they are 
divided into quotas based on formulas contained in the FMP.
    The Council developed Framework 5, pursuant to Sec. Sec.  648.108, 
648.127, and 648.147, in order to streamline the administrative and 
regulatory processes involved in specifying the TALs for the summer 
flounder, scup, and black sea bass fisheries, while, at the same time, 
maintaining consistency with the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act). In particular, Framework 5 
would allow for specification of TALs for the summer flounder, scup, 
and/or black sea bass fisheries in any given year for the following 1 
to 3 years. Under the current management system, specification of 
commercial quotas and recreational harvest limits for these fisheries 
is done on an annual basis. Under the proposed process, all of the 
environmental and regulatory review procedures currently required under 
the Magnuson-Stevens Act, National Environmental Policy Act, and other 
applicable law would be conducted and documented during the year in 
which the multi-year specifications are set. The analyses would 
consider impacts throughout the time span for which specifications are 
set (i.e., 1 to 3 years). TALs would not have to be constant from year 
to year within the multi-year specifications, but would instead be 
based upon expectations of future stock conditions as indicated by the 
best scientific information available at the time the multi-year 
specifications are set.
    Annual review of updated information on the fisheries by the 
Council's Summer Flounder, Scup, and Black Sea Bass Monitoring 
Committees and Council would not be required during the period of 
multi-year specifications. As such, adjustments to the TALs for years 2 
and/or 3 would not occur once the multi-year specifications are set. 
Given the absence of an annual review TAL adjustment process, 
environmental impact evaluation in the specification setting year would 
have to consider thoroughly the uncertainty associated with projected 
estimates of stock size in the 2- to 3-year time horizon. Accordingly, 
Council recommendations for multi-year TALs would be expected to be 
appropriately conservative in order to reflect this uncertainty. Under 
Framework 5, the Council would not be obligated to specify multi-year 
TALs, but would be able, depending on the information available and the 
status of the fisheries, to specify TALs for the following 1, 2, or 3 
years, as appropriate.
    Although the Council's process for setting multi-year TALs would 
occur prior to the first year that the specifications would be in 
place, with no requirement to review the specifications prior to the 
second and/

[[Page 52848]]

or third years, NMFS would continue to publish a proposed and final 
rule each year, notifying the public of the commercial quotas and 
recreational harvest limits. While the Council would set the TALs for 
multiple years; the actual quotas available to the fisheries in any one 
year would be a function of the specified TALs, as reduced to account 
for any quota overages in previous years and to account for research 
set-aside (RSA) allocations set by the Council for the upcoming fishing 
year. Quota overages cannot be determined beforehand, and RSA 
allocations are set based on research proposals submitted, reviewed, 
and selected on an annual basis. NMFS would also continue to issue 
inseason actions, as necessary, to adjust commercial quotas based on 
updated landings information, to close a fishery or season when a quota 
is projected to be reached, and/or to roll over available scup quota 
from the Winter I period to the Winter II period, as already 
established in the FMP.
    During the development of Framework 5, the Council considered and 
analyzed three alternatives for a multi-year specifications process: A 
no-action alternative, which would continue the requirement to 
establish summer flounder, scup, and black sea bass specifications on 
an annual basis; the proposed alternative; and an alternative that 
would require the Council to conduct an annual review of the previously 
established multi-year specifications. The Council selected the 
proposed action because it provided the most straightforward and 
efficient administrative process for establishing multi-year 
specifications, and is expected to provide greater regulatory 
consistency and predictability to the commercial and recreational 
fishing sectors.
    In addition to the changes proposed in Framework 5, this proposed 
rule also would make several administrative changes to other aspects of 
the regulations governing the summer flounder, scup, and black sea bass 
fisheries to: (1) Reduce the application burden and specify the minimum 
enrollment period for the summer flounder small mesh exemption area to 
make the Letter of Authorization (LOA) consistent with all other 
Northeast Region LOAs, clarify the requirements of the LOA, clarify 
that the small-mesh possession restrictions do not apply to vessels 
fishing under the LOA in the exemption area, and correct the reference 
to net stowage requirements; (2) include the summer flounder fishery in 
the list of fisheries for which an operator permit is required; and (3) 
include in the list of potential recommendations by the Scup and Black 
Sea Bass Monitoring Committees a scup and black sea bass research quota 
set from a range of 0 to 3 percent of the maximum allowed to achieve 
the specified exploitation rate. A further explanation of these 
proposed regulatory changes appears in the Classification section of 
this preamble.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA was prepared that describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the reasons why this action is being considered, and the objectives 
of and legal basis for this action are contained elsewhere in this 
preamble. This preamble also includes complete descriptions of the 
proposed, no action, and other alternatives discussed here. Under the 
current management system, the Council annually submits a 
specifications document to NMFS for review. Under the other two 
alternatives, the Council would submit a specifications document only 
in the first year of the multi-year specifications period, if 
applicable. This would reduce substantially the administrative burden 
on both the Council and NMFS and would allow for more efficient use of 
NMFS resources in preparing the annual of multi-year specifications for 
other fisheries, and may species. Additionally, longer term 
specifications should provide greater regulatory consistency and 
predictability to the commercial and recreational fishing sectors. 
Under the proposed alternative, annual review of updated information on 
the fisheries by the Council's Summer Flounder, Scup, and Black Sea 
Bass Monitoring Committees and Council would not be required during the 
period of multi-year specifications. The Council and NMFS have 
considered the risk that harvest at specified TALs in a given year 
could exceed appropriate fishing mortality rates for the management 
units as a result of multi-year specifications. The risks associated 
with these potential outcomes would be carefully considered by the 
Council when determining the appropriate TALs for years two and three 
in the specification setting year as part of the specifications 
process. Although the provision for an annual review reduces the risk 
of negative impacts to the fishery resources, it would also reduce 
administrative efficiency by increasing the chance that a previous 
specified TAL would be modified even for de minimus changes in TAL.
    The reporting and record keeping requirements associated with the 
issuance of the operator permits has been previously approved by the 
Office of Management and Budget under OMB approval number 0648-0202. 
There are no relevant Federal rules that duplicate, overlap, or 
conflict with this rule. Framework 5 deals only with the administrative 
periodicity of annual TAL setting, and therefore would have minimal 
direct effect on entities participating in these fisheries. The other 
actions in this proposed rule are also solely administrative in nature 
and are intended to clarify existing regulations. The proposed action 
regarding the summer flounder small mesh exemption LOA would clarify 
the application process and reduce the burden on applicants. The 
requirement for an operator permit in the summer flounder fishery 
corrects an inadvertent omission and would affect only one summer 
flounder moratorium permit holder, who would be required to complete 
and submit a one-page form; the public reporting burden for the 
collection of information is estimated to be one hour per response. All 
of the other summer flounder moratorium permit holders are in 
compliance as a result of holding other Federal permits. The action 
regarding setting the research quota for the scup and black sea bass 
fisheries within a range of 0 to 3 percent of TALs specified for these 
species was the maximum allowed to achieve the specified exploitation 
rate was discussed in the preamble to a final rule regarding these 
fisheries in 2001 (66 FR 42156, August 10, 2001), but the associated 
change to the regulatory text was not made at that time.

List of Subjects in 50 CFR Part 648

    Fishing, Fisheries, Reporting and recordkeeping requirements.

    Dated: August 23, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons stated 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 (a)(3)(iii) is revised to read as 
follows:

[[Page 52849]]

Sec.  648.4  Vessel permits.

    (a) * * *
    (3) * * *
    (iii) Exemption permits. Owners of summer flounder vessels seeking 
an exemption from the minimum mesh requirement under the provisions of 
Sec.  648.104(b)(1) must request a letter of authorization (LOA) from 
the Regional Administrator. Vessels must be enrolled in the exemption 
program for a minimum of 7 days. The Regional Administrator may impose 
temporary additional procedural requirements by publishing a 
notification in the Federal Register. If a summer flounder charter or 
party requirement of this part differs from a summer flounder charter 
or party management measure required by a state, any vessel owners or 
operators fishing under the terms of a summer flounder charter/party 
vessel permit in the EEZ for summer flounder must comply with the more 
restrictive requirement while fishing in state waters, unless otherwise 
authorized under Sec.  648.107.
* * * * *
    3. In Sec.  648.5, paragraph (a) is revised to read as follows:


Sec.  648.5  Operator permits.

    (a) General. Any operator of a vessel fishing for or possessing 
Atlantic sea scallops in excess of 40 lb (18.1 kg), NE multispecies, 
spiny dogfish, monkfish, Atlantic herring, Atlantic surf clam, ocean 
quahog, Atlantic mackerel, squid, butterfish, summer flounder, scup, 
black sea bass, or bluefish, harvested in or from the EEZ; tilefish 
harvested in or from the EEZ portion of the Tilefish Management Unit; 
skates harvested in or from the EEZ portion of the Skate Management 
Unit; or Atlantic deep-sea red crab harvested in or from the EEZ 
portion of the Red Crab Management Unit, issued a permit, including 
carrier and processing permits, for these species under this part, must 
have been issued under this section, and carry on board, a valid 
operator permit. An operator's permit issued pursuant to part 697 of 
this chapter satisfies the permitting requirement of this section. This 
requirement does not apply to operators of recreational vessels.
* * * * *
    4. In Sec.  648.14, paragraph (a)(89) is revised to read as 
follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (89) Fish for, catch, and retain, or land scup in or from the EEZ 
north of 35[deg] 15.3' N. lat. in excess of the landing limit 
established pursuant to Sec.  648.120(b)(3) and (b)(4).
* * * * *
    5. In Sec.  648.100, paragraph (a) and the headings of paragraphs 
(b) and (c) are revised, and a new paragraph (b)(11) is added to read 
as follows:


Sec.  648.100  Catch quotas and other restrictions.

    (a) Review. The Summer Flounder Monitoring Committee shall review 
the following data on or before August 15 of each year, unless a TAL 
has already been established for the upcoming calendar year as part of 
a multiple-year specification process, provided that new information 
does not require a modification to the multiple-year quotas, to 
determine the annual allowable levels of fishing and other restrictions 
necessary to achieve, with at least a 50-percent probability of 
success, a fishing mortality rate (F) that produces the maximum yield 
per recruit (Fmax): Commercial, recreational, and research catch 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; sea sampling and winter trawl survey data or, if sea 
sampling data are unavailable, length frequency information from the 
winter trawl survey and mesh selectivity analyses; impact of gear other 
than otter trawls on the mortality of summer flounder; and any other 
relevant information.
    (b) Recommend measures on an annual basis. * * *
* * * * *
    (11) Total allowable landings on an annual basis for a period not 
to exceed three years
    (c) Fishing measures. * * *
* * * * *
    6. In Sec.  648.104, paragraph (b)(1) is revised to read as 
follows:


Sec.  648.104  Gear restrictions.

* * * * *
    (b) * * *
    (1) Vessels issued a summer flounder moratorium permit, a summer 
flounder small-mesh exemption area letter of authorization (LOA), 
required under paragraph (b)(1)(i) of this section, and fishing from 
November 1 through April 30 in the exemption area, which is east of the 
line that follows 72[deg]30.0' W. long. until it intersects the outer 
boundary of the EEZ (copies of a map depicting the area are available 
upon request from the Regional Administrator). Vessels fishing under 
the LOA shall not fish west of the line. Vessels issued a permit under 
Sec.  648.4(a)(3)(iii) may transit the area west or south of the line, 
if the vessel's fishing gear is stowed in a manner prescribed under 
Sec.  648.100(e), so that it is not ``available for immediate use'' 
outside the exempted area. The Regional Administrator may terminate 
this exemption if he/she determines, after a review of sea sampling 
data, that vessels fishing under the exemption are discarding more than 
10 percent, by weight, of their entire catch of summer flounder per 
trip. If the Regional Administrator makes such a determination, he/she 
shall publish notification in the Federal Register terminating the 
exemption for the remainder of the exemption season.
    (i) Requirements. (A) A vessel fishing in the Summer Flounder 
Small-Mesh Exemption Area under this exemption must have on board a 
valid LOA issued by the Regional Administrator.
    (B) The vessel must be in enrolled in the exemption program for a 
minimum of 7 days.
    (ii) [Reserved]
* * * * *
    7. In Sec.  648.105, the first sentence of paragraph (d) is revised 
to read as follows:


Sec.  648.105  Possession restrictions.

* * * * *
    (d) Owners and operators of otter trawl vessels issued a permit 
under Sec.  648.4(a)(3) that fish with or possess nets or pieces of net 
on board that do not meet the minimum mesh requirements and that are 
not stowed in accordance with Sec.  648.104(e), may not retain 100 lb 
(45.3 kg) or more of summer flounder from May 1 through October 31, or 
200 lb (90.6 kg) or more of summer flounder from November 1 through 
April 30, unless the vessel possess a valid summer flounder small-mesh 
exemption LOA and is fishing in the exemption area as specified in 
Sec.  648.104(b).* * *
    8. In Sec.  648.120, paragraphs (b)(1) through (b)(10) are 
redesignated as paragraphs (b)(2) through (b)(11); paragraph (a) and 
the heading of paragraph (c) is revised, and new paragraphs (b)(1) and 
(b)(12) are added to read as follows:


Sec.  648.120  Catch quotas and other restrictions.

    (a) Review. The Scup Monitoring Committee shall review the 
following data, subject to availability, on or before August 15 of each 
year, unless a TAL already has been established for the upcoming 
calendar year as part of a multiple-year specification process, 
provided that new information does not require a modification to the 
multiple-year quotas: Commercial, recreational and research data; 
current estimates of fishing mortality; stock status; recent estimates 
of recruitment; virtual

[[Page 52850]]

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).
    (b) * * *
    (1) Research quota set from a range of 0 to 3 percent of the 
maximum allowed to achieve the specified exploitation rate.
* * * * *
    (12) Total allowable landings on an annual basis for a period not 
to exceed three years.
    (c) Fishing measures. * * *
* * * * *
    9. In Sec.  648.140, paragraphs (b)(1) through (b)(9) are 
redesignated as paragraphs (b)(2) through (b)(10) and paragraph (a) and 
the heading of paragraph (c) are revised, and new paragraphs (b)(1) and 
(b)(11) are added to read as follows:


Sec.  648.140  Catch quotas and other restrictions.

    (a) Review. The Black Sea Bass Monitoring Committee will review the 
following data, subject to availability, on or before August 15 of each 
year, unless a TAL already has been established for the upcoming 
calendar year as part of a multiple-year specification process, 
provided that new information does not require a modification to the 
multiple-year quotas, to determine the allowable levels of fishing and 
other restrictions necessary to result in a target exploitation rate of 
23 percent (based on Fmax) in 2003 and subsequent years: Commercial, 
recreational, and research catch 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; sea sampling and 
winter trawl survey data, or if sea sampling data are unavailable, 
length frequency information from the winter trawl survey and mesh 
selectivity analyses; impact of gear other than otter trawls, pots and 
traps on the mortality of black sea bass; and any other relevant 
information.
    (b) * * *
    (1) Research quota set from a range of 0 to 3 percent of the 
maximum allowed to achieve the specified exploitation rate.
* * * * *
    (11) Total allowable landings on an annual basis for a period not 
to exceed three years.
    (c) Fishing measures. * * *
* * * * *
[FR Doc. 04-19623 Filed 8-27-04; 8:45 am]
BILLING CODE 3510-22-S