01-2638. Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; Emergency for the Summer Flounder Fishery; Extension of an Expiration Date

AGENCY:

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

ACTION:

Emergency interim rule; extension of an expiration date.

SUMMARY:

NMFS issues an extension of 180 days to an emergency interim rule that amended the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan and its implementing regulations. The emergency interim rule revised the objective to be achieved by the annual specifications for the 2001 summer flounder fishery from obtaining a fishing mortality rate (F) target to obtaining a biomass (B) target and to require that, if a 2000 state summer flounder commercial quota allocation is not fully harvested, the underage be added to that state’s 2001 allocation. The intent of this action is to comply with a decision issued on April 25, 2000, by the United States Court of Appeals for the District of Columbia Circuit (Court) and to protect the summer flounder stock from overfishing.

DATES:

This emergency interim rule is extended without change for an additional 180 days, from January 30, 2001, through July 28, 2001.

FOR FURTHER INFORMATION CONTACT:

Regina Spallone, Fishery Policy Analyst, phone [phone]; fax [phone]; email: [e-mail].

SUPPLEMENTARY INFORMATION:

On April 25, 2000, the Court issued an opinion on a challenge to the 1999 summer flounder specification brought by a number of environmental groups. The Court remanded the 1999 summer flounder total quota (as specified by commercial and recreational harvest limits) to NMFS “for further proceedings consistent with [the] opinion.” On August 2, 2000, NMFS published an emergency interim rule, with the effective dates of August 2, 2000, through January 29, 2001, to implement measures to establish a clearer standard to be met in setting the 2001 summer flounder specifications (65 FR 47648). Specifically, NMFS established a requirement that the 2001 total quota be set at a level that will achieve, with at least a 50-percent probability, the B level that would have been achieved at the end of 2001 if the F target had been met in 1999 and 2000, provided that the resultant F does not exceed the F that results in the maximum yield per recruit. A full discussion of the need for the emergency action is found in the preamble to the emergency interim rule and is not repeated here. -

On November 28, 2000, NMFS published a proposed rule to implement specifications for the 2001 summer flounder fishery consistent with the emergency interim rule (65 FR 71042). That rule specified a comment period through December 19, 2000. It may not be possible to publish the final rule to implement the final specifications prior to the end of the effective period of the emergency interim rule, leaving a gap between the end date of the emergency interim rule and the final rule implementing the 2001 specifications for summer flounder. Therefore, an extension to the emergency interim rule is required to maintain the revised plan target in effect. The extension would be in effect for an additional 180 days from January 30, through July 28, 2001.

Comments and Responses

The emergency interim rule requested public comments through September 1, 2000. One comment in favor of the emergency interim rule was received during the comment period. -

Comment: Several environmental groups submitted a joint comment supporting the action, with caveats. The commenters felt that the rule should be revised to clarify that management measures for the recreational fishery must assure that, with at least 50-percent probability of success, the B target in 2001 is achieved. -

Response: The regulations at § 648.100(f), (g), and (h) identify the steps to be taken consistent with the order. Specifically outlined are the requirements to: (1) Determine the allowable levels of fishing consistent with the emergency interim rule, and (2) present “measures to assure that the B2001 is achieved with at least a 50-percent probability of success.” Those measures include recreational management measures. The regulations also state that NMFS will “publish a proposed rule in the Federal Register by February 15 to implement additional management measures for the recreational fishery...with at least a 50-percent probability of success, that the B2001 will be achieved.” NMFS feels that there is no need to revise the codified language.

Classification

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

Extension of the emergency interim rule is intended to allow implementation of specifications for the 2001 summer flounder fishery to prevent overfishing and rebuild the resource. Providing prior notice and opportunity for comment would be contrary to the public interest because it would delay implementation of the specifications. Therefore, the Assistant Administrator for Fisheries, NOAA (AA), finds good cause under 5 U.S.C. 553(b)(B) to waive the waive the requirement for prior notice and opportunity for comment on the extension of the emergency interim rule. Also, providing a 30-day delay in the effective date of this emergency interim rule is unnecessary, because this rule merely continues the framework established in the initial emergency interim rule designed to guide the Committee and Council in the specification process for the 2001 fishery and does not impose requirements on members of the public with which they have to comply. Therefore, the AA finds good cause under 5 U.S.C. 553(d)(3) not to delay for 30 days the effective date of this emergency interim rule. -

This emergency interim rule is exempt from the analytical requirements of the Regulatory Flexibility Act because prior notice and comment is not required by 5 U.S.C. 553 or any other law.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

Dated: January 24, 2001.

Clarence G. Pautzke,

Acting Assistant Administrator for Fisheries, National Marine Fisheries Service.