Fisheries of the Northeastern United States; Summer Flounder, Scup, Black Sea Bass, Loligo Squid, Illex Squid, Atlantic Mackerel, Butterfish, and Bluefish Fisheries; Framework Adjustment 1

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 1 to the Atlantic Mackerel, Squid, and Butterfish; Summer Flounder, Scup, and Black Sea Bass; and Bluefish Fishery Management Plans (FMPs). This final rule modifies the quota-setting process to allow the Mid-Atlantic Fishery Management Council (Council) to set aside up to 3 percent of total allowable landings (TAL) specified for these species to be used for research purposes. This rule also announces that NMFS is deferring action on the tilefish portion of this rule until the regulations implementing the Tilefish FMP are effective. The intent of this action is to foster cooperative research efforts by fishermen and scientists, and to encourage the collection of information to improve management of these fisheries.

DATES:

August 10, 2001.

ADDRESSES:

Copies of Framework Adjustment 1 to the Atlantic Mackerel, Squid, and Butterfish; Summer Flounder, Scup, and Black Sea Bass; and Bluefish FMPs, 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:

Each of the FMPs includes an annual specification process, which provides that TAL and other measures be established to achieve the biological targets specified in the FMPs for each fishery. The annual harvest limits are determined by the Council, based on Technical Monitoring Committee recommendations. The Monitoring Committees generally meet in the summer to develop TAL recommendations and management measures for the upcoming fishing year that are necessary to achieve biological targets. The Council reviews the Monitoring Committees’ recommendations and any public comments prior to submitting its recommendations to NMFS. NMFS then is responsible for reviewing the Council’s recommendations and ensuring the management measures will have at least a 50-percent likelihood of achieving the biological targets for each of the respective fisheries. -

This action modifies the quota-setting process for the aforementioned fisheries by allowing the Council to expand its resource allocation scheme to include a quota allocation dedicated to research endeavors. This action will allow the Council to set aside up to 3 percent of TAL in each of these fisheries to be used for research purposes, with the remaining portion of the TAL allocated as currently specified in the FMPs. -

Framework 1 provides a mechanism to fund research and compensate vessels through the sale of fish harvested under the research quota. This establishes an incentive for vessels to participate in research activities. In addition, this action provides researchers with a variety of options for conducting research. This action will allow: (1) Both recreational and commercial vessels to sell fish harvested under research quota (recreational vessels cannot otherwise sell fish); (2) research and commercial activities to be conducted separately, rather than on the same trip; and (3) researchers the option of harvesting up to 25 percent of the research quota allocated to species, even if the research did not directly involve that species. Funds generated through the sale of the research quota will help defray some of the costs associated with conducting research, such as decreased vessel efficiency, additional labor costs, and additional fuel and supplies. -

On an annual basis, the Council will request that NMFS solicit proposals from industry for the upcoming fishing year, based on research priorities identified by the Council. Each year, NMFS will publish a Request for Proposals (RFP) in the Federal Register, consistent with procedures and requirements established by the NOAA Grants Office. Prior to the Council’s quota-setting meetings, which are conducted in the summer, NMFS will convene a review panel, including the Council’s Comprehensive Management Committee (Committee)and technical experts, to review proposals submitted in response to the RFP. The Council has authorized the Committee members to act in their individual capacity on behalf of the Council to recommend which research proposals should be authorized to utilize the research quotas. -

It is anticipated that most proposals will request that vessels conducting research be exempt from certain management measures. To ease the burden on researchers, the analysis of the impacts associated with the anticipated exemptions will be included as part of the annual quota specification packages submitted by the Council. This process is intended to satisfy the analytical and public notice provisions of the Exempted Fishing Permit (EFP) regulations at 50 CFR 600.745. However, those individuals submitting proposals that include vessel activities that extend beyond the scope of the analysis provided by the Council may be required to provide additional analyses before issuance of an EFP will be considered. The final decision concerning the grant proposal will not be made by the NOAA Grants Office until NMFS’ approval of the applicant's EFP request, if applicable. -

NMFS and the NOAA Grants Office will then consider the Committee's recommendations, provide final approval of the projects, and exempt selected vessel(s) from regulations specified in each of the respective FMPs through written notification to the project proponent. Research projects will be conducted in accordance with provisions approved by the NOAA Grants Office and provided in an EFP issued by NMFS. The grant awards approved under the RFPs will be for the upcoming fishing year, January 1 through December 31, annually. Proposals to fund research that would start prior to, or that would end after the fishing year, would not be eligible for consideration. All research and/or compensation trips must be completed within the fishing year for which the research grant was awarded. The review of proposals by NMFS and the NOAA Grants Office will be completed during the proposed rule comment period for the annual specifications. If any proposals are disapproved by NMFS and/or the NOAA Grants Office, NMFS will reallocate the disapproved research quota to the respective commercial and recreational fisheries. -

Framework 1, as submitted by the Council, also included the same modifications to the quota-setting process for the tilefish fishery. On May 11, 2001, NMFS approved the Tilefish FMP. However, the regulations implementing the Tilefish FMP have not yet been approved by NMFS. Therefore, NMFS is deferring action on the tilefish portion of Framework 1 until NMFS publishes the final regulations implementing the Tilefish FMP. The final rule implementing the Tilefish FMP will include, as part of its quota-setting process, a set-aside of up to 3 percent of the tilefish TAL for research. -

The EA and RIR prepared for this action considered the potential impacts of this framework, although Framework 1 does not implement management measures. This action establishes a management system that will allow research set-aside quotas to be set annually as part of the Council’s quota-setting process. The amount of research set-aside quota available will range between 0 and 3 percent of each species' TAL, depending on the research proposals submitted in response to a solicitation for research proposals that will be published in the Federal Register, and the recommendation of the Council in the specification-setting process. Should proposals be disapproved by NMFS or the NOAA Grants Office, the research quota will be reallocated (i.e., added back into) the TAL. This action is not expected to result in negative short-term impacts to a significant number of vessels participating in the summer flounder, scup, black sea bass, Loligo squid, Illex squid, Atlantic mackerel, butterfish, and bluefish fisheries. Projects funded under the research set-aside will enhance the understanding of the resource and contribute to the body of information on which management decisions are made. Therefore, this action will yield positive long-term impacts as a result of the anticipated improvements to management provided by this action. -

Abbreviated Rulemaking

NMFS is revising the regulations under the framework abbreviated rulemaking procedures codified at 50 CFR part 648, subparts B, G, H, I and J. These procedures require 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 before 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 1 at the Council’s October 10-12, 2000; 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 action and of 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 have been submitted by the public 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, scup, black sea bass, Loligo squid, Illex squid, Atlantic mackerel, butterfish, and bluefish fisheries and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. -

This notice contains collection-of-information requirements subject to the Paperwork Reduction Act. The submission requirements for research proposals are cleared under OMB Control Numbers 0348-0043, 0348-0044, and 0648-0309. -

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the Paperwork Reduction Act, unless that collection displays a currently valid OMB control number. -

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553 et seq. or by 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 1. The impacts are described in the SUPPLEMENTARY INFORMATION section of the preamble to this final rule. -

This final rule modifies the quota-setting process to allow the Council to recommend, and for NMFS to set aside, up to 3 percent of TAL of the summer flounder, scup, black sea bass, Loligo squid, Illex squid, Atlantic mackerel, butterfish, and bluefish fisheries to be used for research purposes. This action is merely an authorization to allow for a research set-aside rather than an action to set aside TAL and does not, in itself, impose any new management measures. Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA (AA), finds that notice and opportunity to comment on this final rule is unnecessary and contrary to the public interest for several reasons. First, public meetings held by the Council to discuss the management system implemented by this final rule provided prior notice and opportunity for public comment. Additionally, the opportunity for public comment on fishery-specific research set-asides will be provided through the specifications process before any research set-aside becomes final. Thus, given the past and future opportunities to comment on this rule, an opportunity to provide comments at this time is unnecessary. Proposals for research under this framework must be submitted, considered and awarded before 2002, and the 2002 specifications for the applicable fisheries must be in place with a research set-aside before any research can proceed. Accordingly, delaying the process to allow the public to comment at this time would be contrary to the public interest because it would delay the submission and review of research proposals associated with the research set-asides allowed by this action. For the same reasons, the AA has also determined that it is unnecessary and contrary to the public interest to delay for 30 days implementation of modifications to the quota-setting process associated with this final rule. Furthermore, because the regulation does not impose requirements on the public nor require the public to come into compliance with any regulation, a 30 day delay will neither burden nor harm any member of the public and is therefore unnecessary. -

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 § 648.14, the introductory text to paragraphs (j), (k), (l), (m), (p), (q), (u), (v), and (w) is revised to read as follows:

3. In § 648.21, paragraphs (a), (b), and (c) are revised, and paragraph (g) is added to read as follows:

4. In § 648.100, paragraphs (a), (b), and (d) are revised, and paragraph (f) is added to read as follows:

5. In § 648.120, paragraphs (a), (b) introductory text, (b)(1), (b)(4), and (c) are revised, and paragraph (e) is added to read as follows:

6. In § 648.140, paragraphs (a), (b) introductory text, (b)(1), (b)(6), and (c) are revised, and paragraph (e) is added to read as follows:

(a) Annual review. The Black Sea Bass Monitoring Committee will review the following data, subject to availability, on or before August 15 of each year to determine the allowable levels of fishing and other restrictions necessary to result in a target exploitation rate of 37 percent in 2001 and 2002; and 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) Recommended measures. Based on this review and requests for research quota as described in paragraph (e) of this section, the Black Sea Bass Monitoring Committee will recommend to the Demersal Species Committee of the Council and the Commission the following measures to ensure that the target exploitation rate specified in paragraph (a) of this section is not exceeded:

(1) A commercial quota allocated to quarterly periods set from a range of 0 to the maximum allowed to achieve the specified target exploitation rate, set after the deduction for research quota.

(6) A recreational possession limit set from a range of 0 to the maximum allowed to achieve the target exploitation rate, set after the reduction for research quota.

(c) Annual fishing measures. The Demersal Species Committee shall review the recommendations of the Black Sea Bass Monitoring Committee. Based on these recommendations and any public comment, the Demersal Species Committee shall make its recommendations to the Council with respect to the measures necessary to ensure that the target exploitation rate specified in paragraph (a) of this section is not exceeded. The Council shall review these recommendations and, based on the recommendations and public comment, make recommendations to the Regional Administrator with respect to the measures necessary to ensure that the target exploitation rate specified in paragraph (a) of this section is not exceeded. Included in the recommendation will be supporting documents, as appropriate, concerning the environmental and economic impacts of the proposed action. The Regional Administrator will review these recommendations and any recommendations of the Commission. After such review, NMFS will publish a proposed rule in the Federal Register by October 15 to implement a research quota, a commercial quota, a recreational harvest limit, and additional management measures for the commercial fishery. NMFS will publish a proposed rule in the Federal Register by on or about March 1 to implement additional management measures for the recreational fishery, if the Regional Administrator determines that such measures are necessary to ensure that the target exploitation rate specified in paragraph (a) of this section is not exceeded. After considering public comment, NMFS will publish a final rule in the Federal Register to implement the measures necessary to ensure that the target exploitation rate specified in paragraph (a) of this section is not exceeded.

(e) Research quota. See § 648.21(g).

7. In § 648.160, paragraphs (a), (b), (c), and (d) are revised, and paragraph (h) is added to read as follows:

(a) Annual review. On or before August 15 of each year, the Bluefish Monitoring Committee will meet to determine the total allowable level of landings (TAL) and other restrictions necessary to achieve the target fishing mortality rate (F) specified in the Fishery Management Plan for Atlantic Bluefish for the upcoming fishing year or the estimated F for the fishing year preceding the Council submission of the recommended specifications, whichever F is lower. In determining the TAL and other restrictions necessary to achieve the specified F, the Bluefish Monitoring Committee will review the following data, subject to availability: 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 data; impact of gear other than otter trawls and gill nets on the mortality of bluefish; and any other relevant information.

(b) Recommended measures. Based on the annual review and requests for research quota as described in paragraph (h) of this section, the Bluefish Monitoring Committee shall recommend to the Coastal Migratory Committee of the Council and the Commission the following measures to ensure that the F specified in paragraph (a) of this section will not be exceeded:

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

(2) Research quota set from a range of 0 to 3 percent of TAL.

(3) Commercial minimum fish size.

(4) Minimum mesh size.

(5) Recreational possession limit set from a range of 0 to 20 bluefish to achieve the specified F.

(6) Recreational minimum fish size.

(7) Recreational season.

(8) Restrictions on gear other than otter trawls and gill nets.

(c) Allocation of TAL—(1) Recreational harvest limit. A total of 83 percent of the TAL will be allocated to the recreational fishery as a harvest limit. If research quota is specified as described in paragraph (h) of this section, the recreational harvest limit will be based on the TAL remaining after the deduction of the research quota.

(2) Commercial quota. A total of 17 percent of the TAL will be allocated to the commercial fishery as a quota. If 17 percent of the TAL is less than 10.5 million lb (4.8 million kg) and the recreational fishery is not projected to land its harvest limit for the upcoming year, the commercial fishery may be allocated up to 10.5 million lb (4.8 million kg) as its quota, provided that the combination of the projected recreational landings and the commercial quota does not exceed the TAL. If research quota is specified as described in paragraph (h) of this section, the commercial quota will be based on the TAL remaining after the deduction of the research quota.

(d) Annual fishing measures. The Council’s Coastal Migratory Committee shall review the recommendations of the Bluefish Monitoring Committee. Based on these recommendations and any public comment, the Coastal Migratory Committee shall recommend to the Council measures necessary to ensure that the applicable specified F will not be exceeded. The Council shall review these recommendations and, based on the recommendations and any public comment, recommend to the Regional Administrator by September 1 measures necessary to ensure that the applicable specified F will not be exceeded. The Council's recommendations must include supporting documentation, as appropriate, concerning the environmental, economic, and social 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 in the Federal Register on or about October 15, to implement a research quota, a coastwide commercial quota, a recreational harvest limit, and additional management measures for the commercial and recreational fisheries to ensure that the applicable specified F will not be exceeded. After considering public comment, NMFS will publish a final rule in the Federal Register.

(h) Research quota. See § 648.21(g).