[Federal Register: March 4, 2003 (Volume 68, Number 42)]
[Rules and Regulations]
[Page 10181-10184]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04mr03-14]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 021120279-3047-02 ; I.D. 102302B]
RIN 0648-AN12
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Summer
Flounder, Scup, and Black Sea Bass Fisheries; Summer Flounder, Scup,
and Black Sea Bass Fishery Management Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule to implement approved measures
contained in Amendment 13 to the Summer Flounder, Scup, and Black Sea
Bass Fishery Management Plan (FMP). Pursuant to the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act) and the
FMP, this final rule establishes an annual coastwide quota for black
sea bass and allows vessels to fish under a Southeast Region Snapper/
Grouper permit and to retain their Northeast Region Black Sea Bass
Permit during a Federal fishery closure. Finally, this final rule
requires that vessels issued a Federal moratorium permit for summer
flounder, scup, and black sea bass be subject to the presumption that
any fish of these species on board were harvested from the exclusive
economic zone (EEZ).
DATES: The measures contained in the final rule are effective on March
31, 2003.
ADDRESSES: Copies of the FMP, Amendment 13, its Regulatory Impact
Review (RIR) including the Final Regulatory Flexibility Analysis
(FRFA), and the Final Environmental Impact Statement (FEIS) are
available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery
Management Council, Federal Building, Room 2115, 200 S. New Street,
Dover, DE 19904-6790. The FEIS/RIR/FRFA is also accessible via the
Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nero.nmfs.gov.
Internet at http://http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=www.nero.nmfs.gov.
FOR FURTHER INFORMATION CONTACT: Sarah McLaughlin, Fishery Policy
Analyst, (978) 281-9279, fax (978) 281-9135, e-mail
sarah.mclaughlin@noaa.gov.
SUPPLEMENTARY INFORMATION: This final rule implements measures
contained in Amendment 13, which was approved by NMFS on behalf of the
Secretary of Commerce (Secretary) on January 29, 2003. The purpose of
Amendment 13 is to rectify problems in the black sea bass commercial
fishery (specifically regarding the temporal and geographic
distribution of landings and permit relinquishment requirements for
certain vessels) and to consider management measures to minimize the
adverse effects of fishing on essential fish habitat.
Details concerning the justification for and development of
Amendment 13 and the implementing regulations were provided in the
preamble to the proposed rule (67 FR 72131, December 4, 2002) and are
not repeated here.
Approved Measures
To implement Amendment 13, this final rule: (1) establishes an
annual (calendar year) coastwide quota for the commercial black sea
bass fishery to replace the current quarterly quota allocation system;
and (2) allows vessels to retain their Northeast Region Black Sea Bass
Permit during a Federal fishery closure; previously, vessels issued
both a Northeast Region Black Sea Bass Permit and a Southeast Region
Snapper/Grouper Permit were required to relinquish their Northeast
Black Sea Bass Permits for 6 months if they wanted to continue to fish
for black sea bass south of Cape Hatteras under their Snapper/Grouper
Permits during a Federal black sea bass fishery closure.
In addition, this final rule revises the presumptions in 50 CFR
648.14(x) for summer flounder, scup, and black sea bass. NMFS
determined that Sec. 648.14(x) erroneously omitted the presumption
that summer flounder, scup, and black sea bass on board were caught in
the EEZ for vessels issued moratorium permits under the three fisheries
covered by the FMP. Therefore, this final rule adds the presumption
that all summer flounder, scup, and black sea bass possessed on board a
vessel issued a Federal permit under 50 CFR 648.4 are deemed to have
been harvested from the EEZ within the management unit for the
particular species. This presumption, as it pertains to black sea bass,
does not apply to vessels issued a Southeast
[[Page 10182]]
Region Snapper/Grouper permit and a Northeast Black Sea Bass permit
that are fishing for black sea bass south of Cape Hatteras during a
closure of the black sea bass fishery for the area north of Cape
Hatteras.
Classification
The Administrator, Northeast Region, NMFS, determined that
Amendment 13, which this final rule implements, is necessary for the
conservation and management of the black sea bass fishery and that it
is consistent with the Magnuson-Stevens Act and other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
A final environmental impact statement was prepared for Amendment
13; a notice of availability was published on October 30, 2002 (67 FR
66103). NMFS determined, upon review of the Amendment/FEIS and public
comments, that approval and implementation of Amendment 13 is
environmentally preferable to the status quo. The FEIS demonstrates
that it contains management measures able to mitigate, to the extent
possible, all possible social and economic adverse effects while
minimizing risks to the resource and its environment.
An FRFA was completed for this action that contains the items
specified in 5 U.S.C. 604(a). The FRFA supplements the IRFA and
contains a summary of the analyses completed in support of this action.
A copy of the analyses is available from the Council (see ADDRESSES). A
description of the action, a discussion of why it is being considered,
and its legal basis are also contained in the preamble to the proposed
rule and are not repeated here. The summary of the analyses of the
potential impacts of the management alternatives considered in the FMP
are provided in the Classification section of the proposed rule and are
not repeated here. The items specified in 5 U.S.C. 604(a) are
summarized as follows:
Public Comments
No comments were received on the IRFA, or on the measures contained
in the proposed rule. Comments received in response to the Notice of
Availability for the amendment pertained to issues other than economic
impacts of the action.
Number of Small Entities
The IRFA identified 727 individual vessels that were active in the
black sea bass fishery in 2000, all of which appear to be small
entities.
Permits and Reporting Requirements
No additional reporting requirements are included in this final
rule.
Minimizing Significant Economic Impacts on Small Entities
The Council analyzed several quota program alternatives and
selected the alternative (Federal coastwide quota) that provides the
most flexibility to the states in managing their fisheries under the
state-by-state quota program approved by the Commission. This
alternative, relative to the others considered, is the one most
beneficial for fishermen as it does not affect adversely the
distribution of fishing opportunities from state to state, reduces
uncertainty regarding availability of quota, and allows for more
traditional fishing and trip planning. Regulations implemented by the
states under the Commission's Fishery Management Plan for black sea
bass, which include state-by-state quota allocations, would overlap,
but would not duplicate or conflict with the Federal coastwide quota
program proposed in this action. Any unavoidable adverse effects of the
quota program should be minimized due to the compatibility of the
Federal coastwide annual quota program and the Commission's FMP.
Although NMFS was unable to conduct analyses on the
disproportionality or profitability of the regulations as part of the
overall economic analysis due to a lack of quantifiable data, NMFS did
project changes to gross revenues for vessels. According to both the
Northeast and Southeast Region databases, allowing vessels issued both
a Northeast Region Black Sea Bass Permit and a Southeast Region
Snapper/Grouper Permit to keep their Northeast Region Black Sea Bass
Permit during a fishery closure north of Cape Hatteras if they want to
continue fishing for black sea bass south of Cape Hatteras under their
Southeast Region Snapper/Grouper Permit would affect five vessels.
Because the action would allow vessels to continue fishing south of
Cape Hatteras, it would have no negative impacts on the five affected
vessels, or any other vessels that in the future may be affected by the
proposed elimination of the restriction. In comparison, continuation of
the status quo, or requiring vessels to relinquish their Northeast
Region Black Sea Bass Permit during a closure, could contribute to
revenue losses for vessels that would lose fishing time north of Cape
Hatteras when the fishery re-opened. However, as noted, this would
affect only 5 of the 727 vessels considered in the IRFA.
For a description of the alternatives considered but rejected, see
the IRFA discussion in the Classification section of the proposed rule
(67 FR 72131).
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 rule making process, a small entity compliance guide (the guide)
was prepared. Copies of the guide will be sent to all holders of
Federal permits issued for the black sea bass fishery. In addition,
copies of this final rule and guide are available from the Regional
Administrator (see ADDRESSES) and on the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nero.noaa.gov.
This final rule contains no collection-of-information requirements.
List of Subjects in 50 CFR Part 648
Fishing, Fisheries, Reporting and recordkeeping requirements.
Dated: February 26, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
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 Sec. 648.4, paragraph (b) is revised to read as follows:
Sec. 648.4 Vessel permits.
* * * * *
(b) Permit conditions. Any person who applies for a fishing permit
under this section must agree, as a condition of the permit, that the
vessel and the vessel's fishing activity, catch, and pertinent gear
(without regard to whether such fishing occurs in the EEZ or landward
of the EEZ; and without regard to where such fish or gear are
possessed, taken, or landed), are subject to all requirements of this
part, unless exempted from such requirements
[[Page 10183]]
under this part. All such fishing activities, catch, and gear will
remain subject to all applicable state requirements. Except as
otherwise provided in this part, if a requirement of this part and a
management measure required by a state or local law differ, any vessel
owner permitted to fish in the EEZ for any species except tilefish
managed under this part must comply with the more restrictive
requirement. Except as otherwise provided in this part, if a
requirement of this part and a management measure required by a state
or local law differ, any vessel owner permitted to fish in the tilefish
management unit for tilefish managed under this part must comply with
the more restrictive requirement. Owners and operators of vessels
fishing under the terms of a summer flounder moratorium, scup
moratorium, or black sea bass moratorium, or a spiny dogfish, or
bluefish, commercial vessel permit must also agree not to land summer
flounder, scup, black sea bass, spiny dogfish, or bluefish,
respectively, in any state after NMFS has published a notification in
the Federal Register stating that the commercial quota for that state
or period has been harvested and that no commercial quota is available
for the respective species. A state not receiving an allocation of
summer flounder, scup, black sea bass, or bluefish, either directly or
through a coast-wide allocation, is deemed to have no commercial quota
available. Owners and operators of vessels fishing under the terms of
the tilefish limited access permit must agree not to land tilefish
after NMFS has published a notification in the Federal Register stating
that the quota for the tilefish limited access category under which a
vessel is fishing has been harvested. Owners or operators fishing for
surfclams and ocean quahogs within waters under the jurisdiction of any
state that requires cage tags are not subject to any conflicting
Federal minimum size or tagging requirements. If a surfclam and ocean
quahog requirement of this part differs from a surfclam and ocean
quahog management measure required by a state that does not require
cage tagging, any vessel owners or operators permitted to fish in the
EEZ for surfclams and ocean quahogs must comply with the more
restrictive requirement while fishing in state waters. However,
surrender of a surfclam and ocean quahog vessel permit by the owner by
certified mail addressed to the Regional Administrator allows an
individual to comply with the less restrictive state minimum size
requirement, as long as fishing is conducted exclusively within state
waters.
* * * * *
3. In Sec. 648.14, paragraphs (a)(96), (u)(3), (u)(11), (x)(3),
(x)(6), and (x)(7) are revised to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(96) Purchase or otherwise receive for commercial purposes black
sea bass landed for sale by a moratorium vessel in any state, or part
thereof, north of 35[deg]15.3' N. lat., after the effective date of the
notification published in the Federal Register stating that the
commercial annual quota has been harvested and the EEZ is closed to the
harvest of black sea bass.
* * * * *
(u) * * *
(3) Land black sea bass for sale in any state, or part thereof,
north of 35[deg]15.3' N. lat. after the effective date of the
notification published in the Federal Register stating that the
commercial annual quota has been harvested and the EEZ is closed to the
harvest of black sea bass.
* * * * *
(11) Possess black sea bass after the effective date of the
notification published in the Federal Register stating that the
commercial annual quota has been harvested and the EEZ is closed to the
harvest of black sea bass, unless the vessel has been issued a
Southeast Region Snapper/Grouper Permit and fishes for and possess
black sea bass south of 35[deg]15.3' N. lat.
* * * * *
(x) * * *
(3) Summer flounder. All summer flounder retained or possessed on a
vessel issued a permit under Sec. 648.4 are deemed to have been
harvested in the EEZ.
* * * * *
(6) Scup. All scup retained or possessed on a vessel issued a
permit under Sec. 648.4 are deemed to have been harvested in the EEZ.
(7) Black sea bass. All black sea bass retained or possessed on a
vessel issued a permit under Sec. 648.4 are deemed to have been
harvested in the EEZ, unless the vessel also has been issued a
Southeast Region Snapper/Grouper permit and fishes for, retains, or
possesses black sea bass south of 35[deg]15.3' N. lat.
* * * * *
4. In Sec. 648.140, paragraphs (b)(1), (b)(2), and (d) are revised
to read as follows:
Sec. 648.140 Catch quotas and other restrictions.
* * * * *
(b) * * *
(1) A commercial quota allocated annually, set from a range of zero
to the maximum allowed to achieve the specified target exploitation
rate, set after the deduction for research quota.
(2) A commercial possession limit for all moratorium vessels may be
set from a range of zero to the maximum allowed to assure that the
annual coastwide quota is not exceeded, with the provision that these
quantities be the maximum allowed to be landed within a 24-hour period
(calendar day).
* * * * *
(d) Distribution of annual quota. (1) Beginning on March 31, 2003,
a commercial annual coastwide quota will be allocated to the commercial
black sea bass fishery.
(2) All black sea bass landed for sale in the states from North
Carolina through Maine by a vessel with a moratorium permit issued
under Sec. 648.4(a)(7) shall be applied against the commercial annual
coastwide quota, regardless of where the black sea bass were harvested.
All black sea bass harvested north of 35[deg]15.3' N. lat., and landed
for sale in the states from North Carolina through Maine by any vessel
without a moratorium permit and fishing exclusively in state waters
will be counted against the quota by the state in which it is landed,
pursuant to the Fishery Management Plan for the Black Sea Bass Fishery
adopted by the Commission. The Regional Administrator will determine
the date on which the annual coastwide quota will have been harvested;
beginning on that date and through the end of the calendar year, the
EEZ north of 35[deg]15.3' N. lat. will be closed to the possession of
black sea bass. The Regional Administrator will publish notification in
the Federal Register advising that, upon, and after, that date, no
vessel may possess black sea bass in the EEZ north of 35[deg]15.3' N.
lat. during a closure, nor may vessels issued a moratorium permit land
black sea bass during the closure. Individual states will have the
responsibility to close their ports to landings of black sea bass
during a closure, pursuant to the Fishery Management Plan for the Black
Sea Bass Fishery adopted by the Commission.
(3) Landings in excess of the annual coastwide quota will be
deducted from the quota allocation for the following year in the final
rule that establishes the annual quota. The overage deduction will be
based on landings for the current year through September 30, and
[[Page 10184]]
landings for the previous calendar year that were not included when the
overage deduction was made in the final rule that established the
annual coastwide quota for the current year. If the Regional
Administrator determines during the fishing year that any part of an
overage deduction was based on erroneous landings data that were in
excess of actual landings for the period concerned, he/she will restore
the overage that was deducted in error to the appropriate quota
allocation. The Regional Administrator will publish notification in the
Federal Register announcing the restoration.
* * * * *
[FR Doc. 03-5043 Filed 2-27-03; 3:38 pm]
BILLING CODE 3510-22-S