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Fisheries of the Northeastern United States; Summer Flounder Fishery; 2001 Specifications

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Information about this document as published in the Federal Register.

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


Final rule, final specifications, and commercial quota adjustment.


NMFS issues final specifications for the 2001 summer flounder fishery and makes preliminary adjustments to the 2001 commercial quotas for this fishery. The intent of this action is to comply with implementing regulations for the Fishery Management Plan for the Summer Flounder Fishery (FMP), which requires NMFS to publish measures for the upcoming fishing year that will prevent overfishing of this fishery.


The 2001 final specifications are effective March 20, 2001, through December 31, 2001.


Send comments on any ambiguity or unnecessary complexity arising from the language used in this final rule to Patricia A. Kurkul, Regional Administrator, Northeast Region, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-2298. -

Copies of supporting documents used by the Summer Flounder Monitoring Committee, the Regulatory Impact Review (RIR), the Final Regulatory Flexibility Analysis (FRFA) contained within the RIR, and the Environmental Assessment (EA) are available from the Northeast Regional Office at the same address. The EA/RIR/FRFA is also accessible via the Internet at​ro/​doc/​nr.htm.

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Richard A. Pearson, Fishery Policy Analyst, (978)281-9279, fax (978)281-9135, e-mail

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The FMP was developed jointly 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 unit specified in the FMP is summer flounder (Paralichthys dentatus) in U.S. waters of the Atlantic Ocean from the southern border of North Carolina northward to the U.S./Canadian border. Implementing regulations for this fishery are found at 50 CFR part 648, subparts A and G. -

Pursuant to § 648.100, the Administrator, Northeast Region, NMFS, (Regional Administrator) implements measures for the fishing year to assure that the 2001 biomass target (B2001) for this fishery is achieved. The biomass target and management measures are summarized below. Detailed background information regarding the status of the summer flounder stock and the development of the proposed specifications were provided in the proposed specifications for the 2001 summer flounder, scup and black sea bass fisheries (65 FR 71042, November 28, 2000), and is not repeated here. Final specifications for the scup and black sea bass fisheries were published at 66 FR 12902, March 1, 2001. NMFS will publish a proposed and final rule for the 2001 recreational management measures for the summer flounder fishery in the Federal Register at a later date. -

Summer Flounder

In order to comply with a Court Order issued by the U.S. Court of Appeals for the District of Columbia on April 25, 2000, NMFS implemented an emergency interim rule on August 2, 2000 (65 FR 47648), temporarily amending the FMP and the regulations that establish the target to be achieved by the 2001 total allowable landings (TAL) for summer flounder. The emergency interim rule established a biomass target for 2001, rather than the F target specified in the FMP. Further, the emergency interim rule requires that the 2001 total quota be set at a level that will achieve, with at least a 50-percent probability, the biomass level that would have been achieved at the end of 2001 if the F targets had been met in 1999 and 2000, and would be met in 2001. The emergency interim rule was effective through January 29, 2001, and was extended for 180 days at 66 FR 8091, January 29, 2001, until July 28, 2001. -

As indicated in the emergency interim regulations, the most recent stock assessment specified a biomass target of 148.8 million lb (67.5 million kg) by December 31, 2001. The biomass target was calculated using the results of the summer flounder stock assessment completed by the 31st Stock Assessment Review Committee Consensus Summary of Assessment (SARC 31) in June 2000. A summary of the summary flounder stock assessment was provided in the proposed rule for the 2001 specifications and is not repeated here. -

The Summer Flounder Monitoring Committee reviewed the stock status and projections to meet the biomass target based on these data and recommended a 17.91-million lb (8.125-million kg) TAL for 2001, which would be divided into a commercial quota of 10.75 million lb (4.877 million kg) and a recreational harvest limit of 7.16 million lb (3.248 million kg). The Council adopted these recommendations, and this final rule implements them, because they are consistent with the emergency interim rule. Based on the current status of the stock and assuming the F targets in 1999 and 2000 have been achieved, this level has a 50-percent probability of achieving the 2001 biomass target of 148.8 million lb (6,751 mt).

Although the Council and the Commission’s Summer Flounder Board (Board) met jointly, the Board declined to adopt the Council’s 2001 TAL recommendation for summer flounder at its August 2000 meeting. The Board later adopted a 2001 summer flounder TAL of 20.5 million lb (9.298 million kg) on November 29, 2000, on the basis that this TAL is consistent with the F target in the Commission’s Interstate FMP. -

The Commission has voluntary measures in place to decrease discards of sublegal fish in the commercial fishery, as well as to reduce regulatory discards occurring as a result of landing limits in the states. The Commission established a system whereby 15 percent of each state’s quota could be voluntarily set aside each year for vessels to land an incidental catch allowance (implemented as trip limits) after the directed fishery has been closed. Table 3 in the preamble of the proposed rule showed the 15-percent set-aside for each state. -

This final rule implements the following summer flounder measures for 2001: (1) A TAL of 17.91 million lb (8.125 million kg); (2) a coastwide commercial quota of 10.75 million lb (4.877 million kg); and (3) a coastwide recreational harvest limit of 7.16 million lb (3.248 million kg). The preliminary final commercial quotas, by state, for 2001 are presented in Table 1 of this document. -

Section 648.100(d)(2) provides that all landings of summer flounder for sale in a state shall be applied against that state’s annual commercial quota. Any landings in excess of a state’s commercial quota allocation in 1 year must be deducted from that state’s annual quota allocation for the following year. The emergency interim rule established a provision for the specification of quotas in 2001 whereby any under-harvest of an individual state’s summer flounder commercial quota in 2000 would be applied to the final 2001 specifications for that state. This temporary measure was enacted because NMFS expected that some states might have been prompted by the Court Order to reduce commercial harvests prior to the implementation of the emergency measures. Therefore, the measure was established to avoid penalizing states for their precautionary action. This final rule contains: (1) Final specifications, and (2) associated preliminary adjustments to each state’s 2001 quotas as a result of known 2000 overages or underages. The adjustments made in this final rule are preliminary because it is likely that additional data will be received from the states that will alter the figures, including late landings reported from either federally permitted dealers or state statistical agencies reporting landings by non-federally permitted dealers. This document utilizes preliminary 2000 commercial landings data that have been provided to NMFS through March 19, 2001. -

Based on dealer reports and other available information, NMFS has determined that the States of Maine, Massachusetts, New York, New Jersey, Delaware, Maryland, and North Carolina exceeded their 2000 quotas. Thus far, the remaining States of New Hampshire, Rhode Island, Connecticut, and Virginia are not known to have exceeded their 2000 quotas. The preliminary 2000 landings and resulting overages for all states are given in Table 2 of this document. The resulting adjusted 2001 commercial quota for each state is given in Table 3 of this document.

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Table 1. Preliminary Final 2001 Summer Flounder State Commercial Quotas

StatePercent Sharelbkg1
1 Kilograms are as converted from pounds and may not add to the converted total due to rounding.

Table 2. Summer Flounder Preliminary 2000 Landings by State.

State2000 Quota1Preliminary 2000 landings2000 Overages and Underages3
1 Reflects quotas as published on December 29, 2000 (65 FR 82945).
2 Kilograms as converted from pounds and may not add to the converted total due to rounding.
3 Numbers in parentheses are underages.
4 Parentheses indicate a negative number.

Table 3. Summer Flounder Final 2001 Adjusted Quotas

State2001 Initial quota2001 Adjusted quota
Note: Parentheses indicate a negative number.
1 Kilograms are as converted from pounds and may not add to the converted total due to rounding.
2 Total accounts for DE as zero. Kilograms are as converted from pounds and may not add to the converted total due to rounding.

Comments and Responses

Five comments on the proposed rule were received regarding the summer flounder measures, primarily from fishing industry participants and organizations representing the commercial fishing industry. A co-signed document was submitted by a group of environmental organizations. All comments received prior to the close of the comment period that directly related to the measures in the proposed rule were considered in developing the measures contained in this final rule. -

Comment 1: Four commenters stated that they were opposed to the proposed summer flounder TAL because, in their view, it is too low and will continue to Start Printed Page 16154waste the resource due to regulatory discards. -

Response: The summer flounder TAL being implemented by NMFS in this final rule has been developed through the FMP’s procedures for establishing annual specifications and is consistent with the provisions of the FMP and an emergency interim rule implemented by NMFS on August 2, 2000. This emergency interim rule was published in response to a Court Order issued on April 25, 2000, and is intended to provide at least a 50-percent probability of attaining the stock biomass level by the end of 2001 that was contemplated by the FMP’s rebuilding schedule. To set the TAL at a higher level would not ensure at least a 50-percent probability of the achieving the target biomass, causing NMFS to not meet its legal obligation. -

Comment 2: The environmental organizations who are parties to a Settlement Agreement with NMFS, which was negotiated to conclude the NRDC v. Daley lawsuit challenging the 2000 summer flounder quota, and respond to a Court Order issued by the U.S. Court of Appeals for the District of Columbia on April 25, 2000, commented that NMFS should revise the 2001 summer flounder TAL of 17.91 million lb (8.12 million kg) downward, or adopt additional conservation measures in response to two developments: The Commission’s adoption of a 2001 summer flounder TAL of 20.5 million lb (9.29 million kg), and a substantial recreational overage projected for the 2000 fishing year. -

Response: NMFS is currently considering whether any action is necessary based on these two developments. Any action taken by NMFS to reduce the TAL could not prevent a harvest of summer flounder in excess of the reduced quota, because non-federally permitted vessels and recreational fisheries in state waters are capable of taking the Commission’s higher TAL. -

The procedure used by the Council and NMFS since quota management was established in 1993 has never compensated in subsequent years for recreational landings in excess of recreational harvest limits. To date, NMFS has not factored into a final TAL specification projected recreational landings from the previous year. Once recreational landings data for a particular year are finalized, they are utilized in the stock assessment the next year to set the TAL for the subsequent year (i.e., 1999 data were used in 2000 to set the 2001 TAL). Factoring preliminary recreational data from one year into the following year’s specifications (i.e., 2000 data used for 2001 specifications) has been considered by the Council on several occasions, but there has been no consensus to do so, in part because recreational data are incomplete at the time the recreational harvest limit must be specified. -


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

This action establishes annual quotas and management measures for the summer flounder fishery. Action to restrict landings must be taken immediately to conserve these fishery resources. It would be impracticable to delay implementation of the quota provisions because doing so would prevent NMFS from carrying out its function of preventing overfishing of the summer flounder resource. The fishery covered by this action is already in progress and quota monitoring for the fishing year began on January 1, 2001. Therefore, the Assistant Administrator finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness period for the 2001 summer flounder quota. -

NMFS determined that this rule will be implemented in a manner that is consistent, to the maximum extent practicable, with the approved coastal zone management programs of Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia and Florida. This determination was submitted for review by the responsible state agencies on October 24, 2000, under section 307 of the Coastal Zone Management Act. The following states agreed with NMFS’ determination: Massachusetts, Rhode Island, New York, New Jersey, Pennsylvania, Delaware, North Carolina and Georgia. Maine, New Hampshire, Maryland, South Carolina and Florida did not respond and, therefore, consistency is inferred. The State of Connecticut concurred with all of the components of the 2001 specifications, except for the summer flounder TAL. Connecticut indicated that the commercial quota to be implemented by NMFS in response to the April 25, 2000, Court Order would be disruptive and harmful socioeconomically to Connecticut’s fishing industry, due to annual fluctuations in harvest levels. NMFS notes that it is legally obligated to abide by the Court Order. The TAL meets the minimum requirements of that Order. Therefore, NMFS cannot implement the higher TAL alternative suggested by the State of Connecticut. Furthermore, NMFS is legally required under section 304(e) of the Magnuson-Stevens Fishery Conservation and Management Act to rebuild the summer flounder fishery in a period not to exceed 10 years. The TAL is consistent with that requirement. Therefore, the summer flounder TAL is consistent, to the maximum extent practicable, with Connecticut’s coastal zone management program and NOAA’s Coastal Zone Management Act Federal consistency regulations. -

The Council and NMFS prepared a final regulatory flexibility analysis (FRFA) for this action. A copy of this analysis is available from the Regional Administrator (see ADDRESSES). The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated in its entirety here. A summary of the FRFA follows: -

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. This action does not contain any collection-of-information, reporting, recordkeeping, or other compliance requirements. -

Public Comments

Five comments were received on the summer flounder measures contained in the proposed rule. Comments were not specifically on the IRFA, but were related to economic impacts on small entities (see response to comment 1 in the preamble of this rule). -

Number of Small Entities

The measure established by this action potentially affects a total of 915 vessels that participated in the summer flounder fishery in 1999. -

Minimizing Significant Economic Impact on Small Entities

In the FRFA, NMFS analyzed the measures being implemented in this action. The analysis compared the effects of the measures to both the 2000 adjusted quotas and to actual 2000 landings when available. When not available, 1999 landings were used. -

For the 2001 specifications, NMFS was obligated by a Court Order to implement a summer flounder TAL that was determined to have at least a 50-percent probability of achieving a specified biomass target by December 31, 2001. No other alternative that was considered would meet this objective while minimizing significant economic impacts on small entities. -

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The President has directed Federal agencies to use plain language in their communications with the public, including regulations. To comply with this directive, we seek public comment on any ambiguity or unnecessary complexity arising from the language used in this proposed rule. Such comments should be sent to the Northeast Regional Administrator (see ADDRESSES).

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Dated: March 20, 2001.

William T. Hogarth

Acting Assistant Administrator for Fisheries, National Marine Fisheries Service.

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[FR Doc. 01-7266 Filed 3-20-01; 2:05 pm]