[Federal Register Volume 69, Number 208 (Thursday, October 28, 2004)]
[Rules and Regulations]
[Pages 62818-62822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24107]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 040804226-4278-02; I.D. 071904C]
RIN 0648-AR50

50 CFR Part 648


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: Final rule.

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SUMMARY: NMFS issues this final rule to implement 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 annual Total Allowable Landings (TAL) for multiple 
years. The intent is to provide flexibility and efficiency to the 
management of the species. In addition, this final rule includes 
several administrative modifications to the existing regulations for 
clarification purposes.

DATES: This rule is effective November 29, 2004.

ADDRESSES: Copies of Framework 5, the Regulatory Impact Review (RIR), 
Initial Regulatory Flexibility Analysis (IRFA),

[[Page 62819]]

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. The 
Final Regulatory Flexibility Analysis (FRFA) consists of the IRFA, 
public comments and responses, 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, NMFS, Northeast Regional Office, One Blackburn Drive, 
Gloucester, MA 01930.

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 proposed rule to implement Framework 5 was published on August 
30, 2004 (69 FR 52847). A complete discussion of the development of 
Framework 5 appeared in the preamble of the proposed rule and is not 
repeated here. The current regulations outline an annual process for 
specifying the TALs 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.
    Framework 5 allows for specification of TALs for the summer 
flounder, scup, and/or black sea bass fisheries in any given year for 
the following 1, 2, or 3 years. NMFS would not be obligated to specify 
multi-year TALs, but would be able to do so, depending on the 
information available and the status of the fisheries.
    The environmental and regulatory review procedures currently 
required under the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act), National Environmental Policy Act, and 
other applicable law will be conducted and documented during the year 
in which the multi-year TAL specifications are set. The analyses will 
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 the 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. 
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/or 
third years, NMFS will continue to publish a proposed and final rule 
each year, notifying the public of the commercial quotas and 
recreational harvest limits. While the Council may 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 will 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.

Need for Clarification

    This final rule also makes several administrative changes to other 
aspects of the regulations governing the summer flounder, scup, and 
black sea bass fisheries, which were set out in the proposed rule (69 
FR 52847, August 30, 2004), to: (1) Reduce the application burden and 
enrollment period for a summer flounder small mesh exemption area 
Letter of Authorization (LOA); (2) include the commercial summer 
flounder fishery in the list of fisheries for which an operator permit 
is required; and (3) clarify the scup and black sea bass regulations 
such that RSA quota may be established for between 0 and 3 percent of 
TAL. A further explanation of these regulatory changes appears in the 
Classification section of this preamble.

Comments and Responses

    Two comment letters were received, via e-mail, regarding the 
proposed rule.
    Comment 1: One commenter did not specifically address the proposed 
action, but rather indicated general support for marine protected 
areas, reduction of commercial quotas in general, and better 
enforcement of fisheries regulations.
    Response: Framework 5 is intended to address the process by which 
TALs are specified. In addition, this rule makes minor administrative 
changes to the regulations for clarification purposes. While NMFS 
acknowledges the importance of the issues raised by the commenter, this 
rule is not the proper mechanism to address these general issues.
    Comment 2: The other commenter indicated a preference for the non-
preferred alternative that would allow the setting of specifications 
for up to 3 years, but would require an annual review by the Council's 
Monitoring Committees. The commenter took issue with the 
characterization that the proposed action would benefit user groups by 
providing greater stability and dependability. This commenter also 
expressed concern over the potential for more conservative TALs set 
under this program to result in more restrictive management measures 
than are currently in place for the recreational fishing sector, with 
the risk that these

[[Page 62820]]

more restrictive measures would cause economic harm to this sector.
    Response: The absence of an annual review process by the Council 
for TALs in years 2 and 3 may increase the risk that harvest at 
specified TALs in a given year would exceed appropriate fishing 
mortality rates for the management units. This may occur if population 
biomass was to deviate substantially from projection estimates 
generated during the specification setting year. Conversely, population 
projections may underestimate stock size, which would lead to harvest 
below allowable levels. 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 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. If new 
information indicates that a modification to the multiple-year TAL is 
necessary, NMFS could initiate rulemaking required to make such 
modifications.
    While NMFS acknowledges that the implementation of management 
measures such as recreational possession limits and fishing seasons 
will continue to be subject to annual review of the best available 
information on landings for the previous year, NMFS maintains that the 
establishment of multi-year TALs should provide greater regulatory 
consistency and predictability to the commercial and recreational 
fishing sectors, because advance notice of a future year's TAL would 
provide some indication of whether regulations such as those regarding 
possession limit and season would be maintained, tightened, or relaxed.
    Implementation of Framework 5 provides NMFS the option, not a 
requirement, to implement TALs for up to 3 years. Due to its 
administrative nature, no direct impacts on the economy are expected 
from the proposed action. All of the environmental impact review 
procedures required under the Magnuson-Stevens Act and other applicable 
laws that occur under the current annual specification system will be 
conducted as part of the Council's TAL specifications submission to 
NMFS. These review procedures collectively ensure that significant 
economic effects be considered in the implementation of harvest policy, 
e.g., if setting a TAL for years 2 and 3 is appropriate, given the best 
information available at the time the specifications are set.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Included in this final rule is the FRFA prepared pursuant to 5 
U.S.C. 604(a). The FRFA incorporates the economic impacts summarized in 
the IRFA for the proposed rule (69 FR 52847, August 30, 2004), the 
comments on, 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).

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why action by the agency is being 
taken and the objectives of 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

    Two comments were received on the measures contained in the 
proposed rule. One comment was received on the potential economic 
impact of the rule. No changes to the proposed rule were required to be 
made as a result of public comments. For a summary of the comments 
received, and the responses thereto refer to the ``Comments and 
Responses'' section of this preamble.

Description and Estimate of Number of Small Entities to Which this Rule 
Will Apply

    The action to implement Framework 5 deals only with the 
administrative periodicity of annual TAL setting and has no direct 
effect on entities participating in the fishery because it does not 
require the implementation of three year TALS. Reduction of the 
application burden and enrollment period for a summer flounder small 
mesh exemption area LOA will affect approximately 91 vessel owner/
operators on an annual basis (based on the number of applicants in 
previous years). The requirement for an operator permit in the summer 
flounder fishery will affect only one summer flounder moratorium permit 
holder.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance 
requirements are included in this final rule. The reporting and 
recordkeeping requirements associated with the issuance of operator 
permits has been previously approved by the Office of Management and 
Budget under OMB approval number 0648-0202. Inclusion of the commercial 
summer flounder fishery in the list of fisheries for which an operator 
permit is required corrects an inadvertent omission and does not 
substantially alter the current annual recordkeeping and reporting 
burden, as it will affect only one summer flounder moratorium permit 
holder, who would be required to complete and submit a one-page form 
(with an estimated public burden of 1 hour). All of the other summer 
flounder moratorium permit holders are in compliance as a result of 
holding other Federal permits.
    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 will have minimal 
direct effect on entities participating in these fisheries. The other 
actions in this rule are also solely administrative in nature and are 
intended to clarify existing regulations. The action regarding the 
summer flounder small mesh exemption LOA will clarify the application 
process and reduce the burden on applicants. 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 inadvertantly was not made at that time.

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

    There are no economic impacts associated with this action, which is 
administrative in nature. As such, no steps are needed to minimize 
impacts. NMFS chose the preferred alternative over the other 
alternatives because it allows for greater efficiency in the setting of 
TALs for the summer flounder, scup, and black sea bass fisheries. The 
alternative containing a provision for annual review was rejected 
because it would increase the chance that a previous specified TAL 
would be modified even for de minimus changes in TAL. The no action 
alternative was rejected because it continued unnecessarily the level 
of Council and NMFS staff effort required to develop, review and 
implement annual specifications for fisheries that could be managed 
with multi-year

[[Page 62821]]

TALs. The amount of staff effort saved through the implementation of 
multi-year TALS allows for the implementation of annual specification 
for other fisheries on a more timely basis, thereby allowing fishermen 
to begin a fishing year fully informed as to the amount of a species 
they can harvest. Further, the no action alternative failed to provide 
fishermen the level of long range planning and flexibility possible 
with a multi-year TAL.

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 (i.e., permit 
holder letter) will be sent to all summer flounder, scup, and black sea 
bass permit holders to inform them of the implementation of Framework 5 
and the additional administrative modifications to the existing 
regulations. As indicated above, the only measure that requires 
compliance by permit holders is the requirement for an operator permit 
in the summer flounder fishery. NMFS will contact directly the one 
summer flounder moratorium permit holder affected by this rule and 
request the permit holder to complete and submit a one-page form. 
Copies of the final rule and permit holder letter are available from 
NMFS (see ADDRESSES) and at the following website: http://www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Reporting and recordkeeping requirements.

    Dated: October 22, 2004.
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.  648.4, paragraph (a)(3)(iii) is revised to read as follows:


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.
* * * * *

0
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.
* * * * *

0
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]l5.3' N. lat. in excess of the landing limit 
established pursuant to Sec.  648.120(b)(3) and (b)(4).
* * * * *

0
5. In Sec.  648.100, paragraph (a) and the headings of paragraphs (a), 
(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, subject to availability, 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 (F<INF>max</INF>): 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) Recommended measures on an annual basis. * * *
* * * * *
    (11) Total allowable landings on an annual basis for a period not 
to exceed 3 years.
    (c) Fishing measures. * * *
* * * * *

0
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

[[Page 62822]]

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]
* * * * *

0
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 possesses a valid summer flounder small-
mesh exemption LOA and is fishing in the exemption area as specified in 
Sec.  648.104(b). * * *

0
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) are 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 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 (F<INF>max</INF>).
    (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 3 years.
    (c) Fishing measures. * * *
* * * * *

0
9. In Sec.  648.140, paragraphs (b)(1) through (b)(9) are redesignated 
as paragraphs (b)(2) through (b)(10), 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 F<INF>max</INF>) 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 3 years.
    (c) Fishing measures. * * *
* * * * *
[FR Doc. 04-24107 Filed 10-27-04; 8:45 am]
BILLING CODE 3510-22-S