Fisheries of the Northeastern United States; Summer Flounder Fishery; Framework Adjustment 2

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement measures contained in Framework Adjustment 2 to the Summer Flounder, Scup and Black Sea Bass Fishery Management Plan (FMP). This final rule modifies the mechanism for specifying the annual management measures for the summer flounder recreational fishery by implementing a management system that will either constrain the recreational summer flounder fishery to coastwide management measures or allow states to customize summer flounder recreational management measures. The intent of this action is to establish a management system that allows states to customize recreational management measures while still meeting overall FMP objectives.

DATES:

Effective July 29, 2001.

ADDRESSES:

Copies of Framework Adjustment 2 to the Summer Flounder, Scup and Black Sea Bass FMP, its Environmental Assessment (EA), and Regulatory Impact Review (RIR) are available on request from Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, 300 South New Street, Dover, DE 19904-6790.

FOR FURTHER INFORMATION CONTACT:

David M. Gouveia, Fishery Policy Analyst, (978) 281-9280, fax (978) 281-9135, e-mail david.gouveia@noaa.gov.

SUPPLEMENTARY INFORMATION:

The recreational summer flounder fishery is managed through an annual evaluation process, with annual measures established to achieve a coastwide recreational harvest limit. After the annual coastwide recreational harvest limit recommendation has been made by the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission), the Summer Flounder Monitoring Committee (Committee) meets in December to recommend measures necessary to achieve the recreational harvest limit (seasons, possession limits and/or minimum fish sizes). The Council reviews the Committee’s recommendations and any public comment prior to submitting its recommendations to NMFS. NMFS then is responsible for reviewing the Council’s recommendation and assuring the measures will have at least a 50-percent likelihood of achieving the harvest limit.

Because the recreational summer flounder fishery is currently managed on a coastwide basis, the FMP requires that the same management measures apply to each state. However, summer flounder migration patterns have created differences in the availability of summer flounder to the recreational fisheries of the states. While coastwide measures achieve the target overall, they have a differential impact on the states because the availability of summer flounder to the recreational sector is not uniform across the states.

On September 9, 1999, NMFS enacted interim measures to allow states to implement in state waters conservation measures that were equivalent to the annual Federal summer flounder measures. The temporary interim measures were in effect while the Council developed a more comprehensive mechanism to address this issue on a permanent basis. Under the interim rule, states could select either an individualized combination of minimum fish sizes, possession limits, and closed seasons, or the coastwide management measures to constrain recreational landings to the harvest limit. The state conservation equivalency provision was utilized in the summer flounder recreational fishery in 1999. However, a loophole was discovered during the implementation of the interim rule. By allowing states to choose between conservation equivalent measures and coastwide measures, states had the ability to select management measures that did not achieve the required percentage reduction in harvest. In 1999, a 41-percent reduction in recreational summer flounder landings was required coastwide. Each state had the option to select either the coastwide measures or state-specific measures to achieve the reduction. The coastwide measures achieved the 41-percent reduction overall, but resulted in reductions in individual states that ranged from 11 percent to 39 percent. Some states selected the coastwide measures because they actually impacted their fishery by less than 41 percent. Therefore, by allowing states to choose between coastwide and state specific measures, the overall required 41-percent reduction was not achieved.

On April 28, 1999, NMFS approved a framework adjustment process as part of Amendment 12 to the FMP, which allows the Council to use this process to change the annual specification quota setting process and recreational management measures. This framework adjustment specifies that the Council and Commission will decide on an annual basis whether to recommend a coastwide recreational harvest limit or require states to implement summer flounder recreational management measures that achieve equivalent conservation. To eliminate the loophole revealed during the implementation of the interim rule, states will not be authorized to choose between the coastwide and state equivalency measures but will all manage on either a coastwide basis or on a state equivalent basis. If coastwide measures are recommended, NMFS will publish proposed coastwide measures as currently specified in the FMP, solicit public comment and then publish final coastwide measures. If conservation equivalent measures are recommended, NMFS will publish a proposed rule that will include: (1) the overall percentage adjustment required in each state to achieve the recreational harvest limit; (2) a recommendation to implement state conservation equivalent measures and precautionary default measures; and (3) coastwide measures.

Precautionary default measures are measures that would achieve at least the overall required adjustment in landings for each state. For example, in 1999 a 41-percent reduction in landings was required. An appropriate 1999 precautionary default measure would have been a one-fish possession limit and a 15.5-inch minimum size limit. These measures would have achieved at least a 41-percent reduction in each state, assuming the regulations achieve 85-percent effectiveness. Precautionary default measures will be recommended at the joint Commission/Council meeting when conservation equivalency measures are chosen.

Under conservation equivalency, states will not be allowed to implement measures by method of fishing (mode) or area within a state unless the proportional standard error (PSE) derived from the Marine Recreational Statistical Survey landings, estimated by mode or area, is less than 30 percent for each respective state. PSE expresses the standard error of a landings estimate as a percentage of that estimate, and is a measure of the precision of the landings estimate. The 30-percent PSE threshold was specified by the Council and Commission.

Each state will use state-specific tables created by the Committee to develop and propose equivalent management measures to achieve the recreational harvest limit for the summer flounder fishery. Tables will be adjusted to account for effectiveness of the regulations based on review of prior years’ data. Using these tables, each state will develop a suite of management measures composed of possession limits, minimum size restrictions, and seasonal restrictions to achieve landings consistent with the recreational harvest limit for the summer flounder fishery.

States will submit their proposed suite of recreational measures to the Commission for review. Any state that does not submit a proposal or submits a proposal that is determined to not achieve the adjustment target will be assigned the precautionary default measures. At the discretion of the Commission, states that have been assigned the precautionary default measures may be authorized to resubmit revised management measures, and if those are consistent with the adjustment target, the state could implement them in place of the precautionary default measures.

During the proposed rule comment period, the Commission will complete its review of state proposals and notify NMFS of its findings. Although the Council and Commission may recommend state conservation equivalency to NMFS, NMFS has the responsibility of ensuring that the measures will achieve the harvest limit. Therefore, NMFS retains the final authority to approve either coastwide or state equivalency and will publish its determination in the final rule for recreational measures. Should NMFS approve state conservation equivalent measures, NMFS will publish in the final rule the state conservation equivalent and/or precautionary default measures for each respective state for the exclusive economic zone (EEZ). For states with approved conservation equivalent measures, NMFS will also announce as part of the final recreational measures that it is waiving the permit condition found at § 648.4(b), which requires federally permitted vessels to comply with the more restrictive management measures when state and Federal measures differ. In the case of states that are initially assigned precautionary default measures, but subsequently receive Commission approval of customized state measures, NMFS will publish a notification in the Federal Register announcing the waiver of the permit condition at § 648.4(b).

Economic Impact Analysis

The potential impacts that may result from this action have been considered in the EA and RIR. This action proposes a management system that will provide the Council and Commission the flexibility to recommend cooperatively either coastwide management measures or customized state summer flounder recreational management to achieve the recreational summer flounder harvest limit, rather than relying solely on coastwide management measures. Should the Council and Commission choose to allow states to customize summer flounder recreational management measures, states will be able to set management measures that will maintain traditional fishing practices within each respective state. This action is not, therefore, expected to result in negative impacts to charter/party vessels participating in the recreational summer flounder fishery compared to the no-action alternative of solely relying on coastwide management measures. Other alternatives were considered, including conservation equivalency by sub-regions, conservation equivalency by state using sub-regional data, conservation equivalency as established through the interim action, and state by state allocations for recreational fishing. While several of these would also provide greater flexibility than the current measures in the FMP, none were identified as minimizing impacts in comparison to the adopted measures.

Abbreviated Rulemaking

NMFS is making these revisions to the regulations under the framework abbreviated rulemaking procedure codified at 50 CFR part 648, subpart G. This procedure requires the Council, when making specifically allowed adjustments to the regulations, to develop and analyze the actions over the span of at least two Council meetings. The Council must provide the public with advance notice of both the proposals and the analysis, and with an opportunity to comment on them at the first meeting and prior to and at the second Council meeting. Upon review of the analysis and public comment, the Council may recommend to the Administrator, Northeast Region, NMFS, that the measures be published as a final rule if certain conditions are met. NMFS may publish the measures as a final rule, or as a proposed rule if additional public comment is necessary.

The public was provided the opportunity to comment on the management measures contained in Framework 2 at the Council’s December 12-14, 2000, and February 6-8, 2001, meetings. Documents summarizing the Council’s proposed action and the analysis of biological and economic impacts of this and alternative actions were available for public review at the December 12-14, 2000, meeting and prior to the final February 8, 2001, meeting, as is required under the framework adjustment procedures. Written comments could be submitted up to and during the final meeting. No comments were received.

Classification

The Regional Administrator determined that this framework adjustment to the FMP is necessary for the conservation and management of the summer flounder fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and other applicable laws.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553 et seq., or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable. Nevertheless, the impacts of this action on affected small entities were considered in the RIR contained in the supporting analyses for Framework 2. The impacts are described in the SUPPLEMENTARY INFORMATION section of the preamble to this final rule.

The Assistant Administrator for Fisheries, NOAA (AA), finds that, because public meetings held by the Council to discuss the management system implemented by this final rule provided adequate prior notice and opportunity for public comment, further notice and opportunity to comment on this final rule is unnecessary. Therefore, the AA, under 5 U.S.C. 553 (b)(B), finds good cause exists to waive prior notice and additional opportunity for public comment.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

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 § 648.4, paragraph (a)(3)(iii) is revised to read as follows:

(a) * * *

(3) * * *

(iii) Exemption permits. Owners of summer flounder vessels seeking an exemption from the minimum mesh requirement under the provisions of § 648.104 (b)(1) must apply to the Regional Administrator under paragraph (c) of this section at least 7 days prior to the date they wish the permit to become effective. The applicant must mark “Exemption Permit Request” on the permit application at the top. A permit issued under this paragraph (a)(3)(iii) does not meet the requirements of paragraph (a)(3)(i) of this section, but is subject to the other provisions of this section. Persons issued an exemption permit must surrender it to the Regional Administrator at least 1 day prior to the date they wish to fish not subject to the exemption. 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 § 648.107.

3. Section 648.100 is revised to read as follows:

(a) Annual review. The Summer Flounder Monitoring Committee shall review the following data on or before August 15 of each year to determine the 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 and recreational 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. Based on this review, the Summer Flounder Monitoring Committee shall recommend to the Demersal Species Committee of the MAFMC and the Commission the following measures to ensure, with at least a 50-percent probability of success, that the F specified in paragraph (a) of this section will not be exceeded:

(1) Commercial quota set from a range of 0 to the maximum allowed to achieve the specified F.

(2) Commercial minimum fish size.

(3) Minimum mesh size.

(4) Recreational possession limit set from a range of 0 to 15 summer flounder to achieve the specified F.

(5) Recreational minimum fish size.

(6) Recreational season.

(7) Recreational state conservation equivalent and precautionary default measures utilizing possession limits, minimum fish sizes, and/or seasons.

(8) Restrictions on gear other than otter trawls.

(9) Adjustments to the exempted area boundary and season specified in § 648.104 (b)(1) by 30-minute intervals of latitude and longitude and 2-week intervals, respectively, based on data specified in paragraph (a) of this section to prevent discarding of sublegal sized summer flounder in excess of 10 percent, by weight.

(c) Annual fishing measures. The Demersal Species Committee shall review the recommendations of the Summer Flounder Monitoring Committee. Based on these recommendations and any public comment, the Demersal Species Committee shall recommend to the MAFMC measures necessary to ensure, with at least a 50-percent probability of success, that the applicable specified F will not be exceeded. The MAFMC shall review these recommendations and, based on the recommendations and any public comment, recommend to the Regional Administrator measures necessary to ensure, with at least a 50-percent probability of success, that the applicable specified F will not be exceeded. The MAFMC's recommendations 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.

(d) Commercial measures. After such review, the Regional Administrator will publish a proposed rule in the Federal Register on or about October 15 to implement a coastwide commercial quota and recreational harvest limit and additional management measures for the commercial fishery. After considering public comment, the Regional Administrator will publish a final rule in the Federal Register to implement the measures necessary to ensure, with at least a 50-percent probability of success, that the applicable specified F will not be exceeded.

(1) Distribution of annual quota. (i) The annual commercial quota will be distributed to the states, based upon the following percentages:

(ii) All summer flounder landed for sale in a state shall be applied against that state's annual commercial quota, regardless of where the summer flounder were harvested. Any overages of the commercial quota landed in any state will be deducted from that state's annual quota for the following year.

(2) Quota transfers and combinations. Any state implementing a state commercial quota for summer flounder may request approval from the Regional Administrator to transfer part or all of its annual quota to one or more states. Two or more states implementing a state commercial quota for summer flounder may request approval from the Regional Administrator to combine their quotas, or part of their quotas, into an overall regional quota. Requests for transfer or combination of commercial quotas for summer flounder must be made by individual or joint letter(s) signed by the principal state official with marine fishery management responsibility and expertise, or his/her previously named designee, for each state involved. The letter(s) must certify that all pertinent state requirements have been met and identify the states involved and the amount of quota to be transferred or combined.

(3) Within 10 working days following the receipt of the letter(s) from the states involved, the Regional Administrator shall notify the appropriate state officials of the disposition of the request. In evaluating requests to transfer a quota or combine quotas, the Regional Administrator shall consider whether:

(i) The transfer or combination would preclude the overall annual quota from being fully harvested.

(ii) The transfer addresses an unforeseen variation or contingency in the fishery.

(iii) The transfer is consistent with the objectives of the Summer Flounder FMP and Magnuson-Stevens Act.

(4) The transfer of quota or the combination of quotas will be valid only for the calendar year for which the request was made and will be effective upon the filing by NMFS of a notice of the approval of the transfer or combination with the Office of the Federal Register.

(5) A state may not submit a request to transfer quota or combine quotas if a request to which it is party is pending before the Regional Administrator. A state may submit a new request when it receives notice that the Regional Administrator has disapproved the previous request or when notice of the approval of the transfer or combination has been filed at the Office of the Federal Register.

(6) If there is a quota overage among states involved in the combination of quotas at the end of the fishing year, the overage will be deducted from the following year's quota for each of the states involved in the combined quota. The deduction will be proportional, based on each state's relative share of the combined quota for the previous year. A transfer of quota or combination of quotas does not alter any state's percentage share of the overall quota specified in paragraph (d)(1)(i) of this section.

(e) Recreational measures. The Demersal Species Committee shall review the recommendations of the Summer Flounder Monitoring Committee. Based on these recommendations and any public comment, the Demersal Species Committee shall recommend to the MAFMC and Commission measures necessary to ensure, with at least a 50-percent probability of success, that the applicable specified F will not be exceeded. The MAFMC shall review these recommendations and, based on the recommendations and any public comment, recommend to the Regional Administrator measures necessary to ensure, with at least a 50-percent probability of success, that the applicable specified F will not be exceeded. The MAFMC's recommendations must include supporting documentation, as appropriate, concerning the environmental and economic impacts of the recommendations. The Council and the Commission will recommend that the Regional Administrator implement either:

(1) Coastwide measures. Annual coastwide management measures that constrain the recreational summer flounder fishery to the recreational harvest limit, or

(2) Conservation equivalent measures. States may implement different combinations of minimum fish sizes, possession limits, and closed seasons that achieve equivalent conservation as the coastwide measures established under paragraph (e)(1) of this section. Each state may implement measures by mode or area only if the proportional standard error of Marine Recreational Statistical Survey landings estimates by mode or area for that state are less than 30 percent.

(i) After review of the recommendations, the Regional Administrator will publish a proposed rule in the Federal Register on or about March 1 to implement the overall percent adjustment in recreational landings required for the fishing year, the Council and Commission’s recommendation concerning state conservation equivalency, the precautionary default measures, and coastwide measures.

(ii) During the public comment period on the proposed rule, the Commission will review state conservation equivalency proposals and determine whether or not they achieve the necessary adjustment to recreational landings. The Commission will provide the Regional Administrator with the individual state conservation measures for the approved state proposals, and in the case of disapproved state proposals, the precautionary default measures.

(iii) The Commission may allow states assigned the precautionary default measures to resubmit revised management measures. The Commission will detail the procedures by which the state can develop alternate measures. The Commission will notify the Regional Administrator of any resubmitted state proposals approved subsequent to publication of the final rule and the Regional Administrator will publish a notice in the Federal Register to notify the public.

(iv) After considering public comment, the Regional Administrator will publish a final rule in the Federal Register to implement either the state specific conservation equivalency measures or coastwide measures to ensure that the applicable specified target is not exceeded.

4. Section 648.102 is revised to read as follows:

Unless otherwise specified in § 648.107, vessels that are not eligible for a moratorium permit under § 648.4 (a)(3) and fishermen subject to the possession limit may fish for summer flounder from January 1 through December 31. This time period may be adjusted pursuant to the procedures in § 648.100.

5. In § 648.103, paragraph (b) is revised to read as follows:

(b) Unless otherwise specified in § 648.107, the minimum size for summer flounder is 15 inches (38 cm) TL for all vessels that do not qualify for a moratorium permit, and charter boats holding a moratorium permit if fishing with passengers for hire or carrying more than three crew members, or party boats holding a moratorium permit if fishing with more than five crew members.

6. In § 648.105, the first sentence of paragraph (a) is revised to read as follows:

(a) Unless otherwise specified in § 648.107, no person shall possess more than eight summer flounder in, or harvested from, the EEZ unless that person is the owner or operator of a fishing vessel issued a summer flounder moratorium permit or is issued a summer flounder dealer permit. * * *

7. Section 648.107 is revised to read as follows: