Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: December 31, 1998 (Volume 63, Number 251)]
[Rules and Regulations]
[Page 72203-72215]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de98-31]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 981014259-8312-02; I.D. 101498B]
RIN 0648-AL74

Fisheries of the Northeastern United States; Summer Flounder,
Scup, and Black Sea Bass Fisheries

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

ACTION: Final rule and final specifications for the 1999 summer
flounder, scup, and black sea bass fisheries.

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SUMMARY: NMFS issues the final specifications for the 1999 summer
flounder, scup, and black sea bass fisheries. The intent of this
document is to comply with implementing regulations for the Fishery
Management Plan for the Summer Flounder, Scup, and Black Sea Bass
Fisheries (FMP) that require NMFS to publish measures for the upcoming
year that will prevent overfishing of these fisheries. The annual
specifications for the scup fishery include a provision to reduce the
minimum mesh threshold that would be more restrictive than the current
mesh provision.

DATES: The revision of Sec. 648.123(a)(1) is effective February 1,
1999. The 1999 final specifications are effective January 1, 1999,
through December 31, 1999.

ADDRESSES: Copies of the Environmental Assessment (EA)/Regulatory
Impact Review (RIR)/Final Regulatory Flexibility Analysis (FRFA) are
available from: Jon C. Rittgers, Acting Regional Administrator,
Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298.

FOR FURTHER INFORMATION CONTACT: Mary M. Grim, Fisheries Management
Specialist, (978) 281-9326.

SUPPLEMENTARY INFORMATION:

Background

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 units
specified in the FMP include summer flounder (Paralichthys dentatus) in
U.S. waters of the Atlantic Ocean from the southern border of North
Carolina northward to the U.S./Canada border, and scup (Stenotomus
chrysops) and black sea bass (Centopristis striata) in U.S. water of
the Atlantic Ocean from 35 deg.13.3' N. latitude (the latitude of Cape
Hatteras Light, NC) northward to the U.S./Canada border. Implementing
regulations for these fisheries are found at 50 CFR part 648, subparts
A, G (summer flounder), H (scup), and I (black sea bass).
Pursuant to Secs. 648.100 (summer flounder), 648.120 (scup), and
648.140 (black sea bass), the Regional Administrator, Northeast Region,
NMFS, implements measures for the fishing year to ensure achievement of
the target fishing mortality (F) or exploitation rate for each fishery,
as specified in the FMP. The FMP for summer flounder established a
target F equal to that which results in the maximum yield per recruit
(F<INF>max</INF>). That target F for summer flounder in 1999 is 0.24;
the target exploitation rate for scup in 1999 is 47 percent, the rate
associated with an F of 0.72. For black sea bass, the FMP specifies a
target exploitation rate for 1999 of 48 percent, the rate associated
with an F of 0.73. The management measures are summarized below by
species. Detailed background information regarding the development of
this rule was provided in the proposed specifications for the 1999
summer flounder, scup, and black sea bass fisheries (63 FR 56135,
October 21, 1998) and is not repeated here. NMFS will publish in the
Federal Register at a later date the 1999 recreational management
measures for the summer flounder, scup, and black sea bass fisheries.

Summer Flounder

The FMP for summer flounder established a target fishing mortality
(F) equal to that which results in the maximum yield per recruit
(F<INF>max</INF>). For 1999, this target level of F is equal to 0.24.
This target will be attained through the specification of a quota
equivalent to a total allowable landings level (TAL), allocated to the
commercial (60 percent) and the recreational (40 percent) sectors.
A stock assessment was not conducted for summer flounder in 1998.
However, projection results based on the 25th Stock Assessment Workshop
and 1997 survey indices and catch data indicated that a TAL of 14.97
million lb (6.79 million kg) has a 50-percent probability of attaining
the target F for 1999. This projection was the basis of the Monitoring
Committee recommendation for a TAL of 14.97 million lb (6.79 million
kg). Despite this

[[Page 72204]]

recommendation, the Council and Commission recommended to NMFS a TAL of
20.20 million lb (9.16 million kg). After review of the Council's and
Commission's recommendation, NMFS found it to be unnecessarily risk
prone because the recommended TAL had only a 3-percent probability of
achieving the target F. Because of these concerns, NMFS proposed a TAL
of 18.52 million lb (8.40 million kg), which has an 18-percent
probability of achieving the target F (it should be noted that this
probability may decrease given recent increased projections of
recreational landings). To improve the probability of achieving the
target, additional measures were recommended to reduce the level of
incidental catch.
This rule will implement the following summer flounder measures for
1999: (1) A TAL of 18.52 million lb (8.40 million kg); (2) a coastwide
commercial quota of 11.11 million lb (5.039 million kg); and (3) a
coastwide recreational harvest limit of 7.41 million lb (3.361 million
kg).
While this TAL is the same level specified in 1998, NMFS recommends
that the states implement two additional measures that will address
discards in this fishery and further reduce the overall mortality.
First, states should set the directed commercial fishery TAL to be
equal to the commercial share (60 percent) of the Monitoring
Committee's TAL recommendation of a 14.97 million lb (6.79 million kg)
TAL, or 8.98 million lb (4.07 million kg). Fifteen percent of this
allocation (1.51 million lb) should be set aside as an incidental catch
allocation. This would result in a coastwide directed fishery of 7.47
million lb (3.39 million kg). Second, the states should allocate the
poundage associated with the difference between the commercial share
(8.98 million lb, 4.07 million kg) of the 14.97 million lb (6.79
million kg) TAL and the commercial share (11.11 million lb, 5.04
million kg) of the 18.52 million lb (8.40 million kg) TAL that is 2.13
million lb (0.97 million kg) to the incidental catch allocation. This
would result in a coastwide incidental catch allocation of 3.6 million
lb (1.63 million kg), or 32.7 percent of the total commercial TAL being
set aside for incidental catch. As was proposed by the Council and
Commission at the joint meeting held in August 1998, state incidental
catch measures would specify (1) that the states must allocate a
portion of the commercial quota to incidental catch resources and (2)
that summer flounder caught incidentally may not exceed 10 percent by
weight of all other species at the end of the trip. At the time the
Council and Commission made their recommendation, it appeared the
measures were Commission-compliance criteria. Since that time, the
Commission has made these measures voluntary.
The commercial quotas by state for 1999 are presented in Table 1;
the total quotas are divided into the recommended allocation between
directed fishing and incidental catch for purposes of illustration:

Table 1.--1999 State Commercial Quotas
--------------------------------------------------------------------------------------------------------------------------------------------------------
Directed Incidental catch Total
State Percent share -----------------------------------------------------------------------------------------------
Lb KG \1\ Lb KG \1\ Lb KG \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME...................................... 0.04756 3,552 1,611 1,733 786 5,285 2,397
NH...................................... 0.00046 34 15 17 8 51 23
MA...................................... 6.82046 509,427 231,072 248,414 112,678 757,842 343,751
RI...................................... 15.68298 1,171,379 53,133 571,204 259,094 1,741,583 789,968
CT...................................... 2.25708 168,584 76,468 82,207 37,288 250,791 113,757
NY...................................... 7.64699 571,162 259,075 278,518 126,334 849,680 385,408
NJ...................................... 16.72499 1,249,207 566,630 608,156 275,855 1,858,363 842,939
DE...................................... 0.01779 133 603 648 294 1,977 897
MD...................................... 2.03910 152,303 69,083 74,268 33,687 226,570 102,770
VA...................................... 21.31676 1,592,172 722,197 775,397 351,714 2,368,569 1,074,365
NC...................................... 27.44584 2,049,959 929,846 998,630 425,970 3,049,589 1,383,270
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Total............................... 100.00000 7,468,107 3,387,476 3,642,191 1,652,070 11,111,191 5,039,951
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\1\ Kilograms are as converted from pounds and do not add to the converted total due to rounding.

Scup

The most recent assessment for scup, completed as part of the 27th
Stock Assessment Workshop (SAW-27), indicated that scup are over-
exploited and at a low biomass level. SAW-27 did not recommend a total
allowable catch (TAC) for 1999, but it did recommend that the ``1999
TAC be less than the 1998 TAC to at least remain on the current fishing
mortality reduction schedule.'' A relative exploitation index based on
landings and the Northeast Fisheries Science Center (NEFSC) Spring
Survey (spawning stock biomass 3 year average) was developed by Council
staff to assess current levels of mortality and to determine the level
of landings that would follow the SAW-27 advice. Based on this index, F
in 1997 was estimated at 1.8 (an exploitation rate of 78 percent).
Therefore, a 40-percent reduction from 1997 exploitation rates is
needed to remain on the current mortality reduction schedule.
To achieve this goal, this rule will implement the following
measures recommended by the Council and Commission for scup in 1999:
(1) A total allowable catch (TAC) of 5.92 million lb (2.69 million kg);
(2) a commercial TAC of 4.61 million lb (2.09 million kg); (3) a
commercial discard estimate of 2.09 million lb (0.95 million kg); (4) a
commercial quota of 2.53 million lb (1.15 million kg); (5) a
recreational TAC of 1.30 million lb (0.59 million kg); (6) a
recreational discard estimate of 0.065 million lb (0.003 million kg);
and (7) a recreational harvest limit of 1.24 million lb (0.562 million
kg). To achieve the commercial quotas, the trip limits will be 12,000
lb (5,443 kg). They will drop to 1,000 lb (453.6 kg) for Winter I
(January-March), after 85 percent of the quota for that period is
harvested and to 4,000 lb (1814.4 kg) for Winter II (November-
December).
Further, this rule also implements a 200-lb (90.7-kg) and 100-lb
(45.4-kg) seasonal (winter/summer) threshold for minimum mesh size.
Specifically, fishers must use 4.5-inch mesh in the codend when 200 lb
(90.7 kg) and 100 lb (45.5 kg) of scup are on board during the winter
(November-March) or summer (April-October), respectively. This minimum
mesh threshold will allow the landing of the incidental catch

[[Page 72205]]

of legal-sized scup harvested in small mesh fisheries, up to the
seasonal threshold amount. At the same time, the reduction in the
threshold level from 1998 will address concerns that the threshold was
sufficiently high to encourage the use of small mesh to target scup,
causing discard of undersized scup retained in the small mesh. Some
incidental catch allowance is necessary in order that fish that might
otherwise be discarded dead would instead be landed and applied to the
commercial quota, increasing the probability that the target
exploitation rate will be met.
The quota and period allocations are shown in Table 2:

Table 2.--Percent Allocations of Commercial Scup Quota
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Quota allocation
Period Percent TAC\1\ Discards\2\ -------------------------------
Lb KG\3\
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Winter I........................ 45.11 2,083,630 940,543 1,143,087 518,496
Summer.......................... 38.95 1,799,100 812,108 986,993 447,692
Winter II....................... 15.94 736,569 332.7,349 403,920 183,215
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Total....................... 100.00 4,619,000 2,085,000 2,534,000 1,149,403
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\1\ Total allowable catch, in pounds.
\2\ Discard estimates, in pounds.
\3\ Kilograms are as converted from pounds.

Black Sea Bass

The FMP specifies a target exploitation rate of 48 percent for
1999, equivalent to an F of 0.73. This target is to be attained through
specification of a TAL level that is allocated 49 percent to the
commercial fishery and 51 percent to the recreational fishery. The
commercial quota is specified on a coastwide basis by quarter. The most
recent assessment on black sea bass, completed in June 1998 (SAW-27),
indicates that black sea bass are over-exploited and at a low biomass
level. The SAW concluded that the input data for black sea bass were
inadequate to develop an analytical assessment. Fishing mortality for
1997, based on length-based methods, was 0.73. Because this estimate of
F was the same as the target F for 1999, the Stock Assessment Review
Committee recommended that the FMP exploitation schedule be maintained
and that no changes from the 1998 TAL be required.
To achieve that goal, this rule implements the following
specifications that were recommended by the Council and Commission for
black sea bass in 1999: (1) A TAL for 1999 of 6.17 million lb (2.79
million kg); (2) a commercial quota of 3.02 million lb (1.37 million
kg); and (3) a recreational harvest limit of 3.14 million lb (1.42
million kg). The specifications are the same as those implemented for
the 1998 fishing year.
The black sea bass coastwide commercial quotas by quarter for 1999
are presented in Table 3:

Table 3.--1999 Black Sea Bass Quarterly Coastwide Commercial Quotas and Quarterly Trip Limits
----------------------------------------------------------------------------------------------------------------
(Kg) \1\
Trip limits Quarter Percent Lb -------------------------------
Lb (Kg) \1\
----------------------------------------------------------------------------------------------------------------
1 (Jan-Mar).................... 38.64 1,168,860 530,186 11,000 4,990
2 (Apr-Jun).................... 29.26 885,115 401,481 7,000 3,175
3 (Jul-Sep).................... 12.33 372,983 169,182 3,000 1,361
4 (Oct-Dec).................... 19.77 598,043 271,268 4,000 1,814
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Total....................... 100.00 3,025,000 1,372,117
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\1\ Kilograms are as converted from pounds and do not add to the converted total due to rounding.

Changes From the Proposed Rule

In the proposed rule, NMFS recommended that states implement an
incidental catch trip limit for summer flounder so that summer flounder
does not exceed 10 percent by weight of all other species on board for
any trip under the incidental catch allocation. Based on comments
received from the State of New Jersey and an industry member (see
comment 23), NMFS has revised this recommendation. NMFS recommends that
states implement an incidental catch trip limit so that summer flounder
does not exceed 10 percent by weight of all other species landed at the
end of a trip for any trip under the incidental catch allocation. NMFS
feels that this modification, slightly different from the one
recommended by the State of New Jersey, would be more enforceable than
the original recommendation or the New Jersey recommendation, and thus
more effective.

Comments and Responses

Seventeen sets of comments were received expressing concern about
the measures proposed by NMFS. Critical comments were received from
Congressman Saxton (NJ), two industry members, the Atlantic State
Marine Fisheries Commission, the North Carolina Department of
Environment and Natural Resources, the Massachusetts Department of
Marine Resources, the Virginia Marine Resources Commission, the New
Jersey Department of Environmental Resources, the New York Department
of Environmental Conservation, the Connecticut Department of
Environmental Protection, the Maryland Department of Natural Resources,
three fisheries associations (the New Jersey Marine Fisheries Council,
the North Carolina Fisheries Association, Inc., and the United National
Fishermen Association), and from the Natural Resources Defense Council,
the Center for Marine Conservation, and the Environmental Defense Fund,
jointly. Specific comments on the proposed

[[Page 72206]]

annual specifications for the 1999 summer flounder, scup, and black sea
bass fisheries are discussed and responded to below.
Comment 1: Congressman Saxton expressed concern that the quota
level recommended by NMFS would require the recreational fishery to be
closed during the summer months, with devastating economic impacts. He
urged NMFS to reconsider the Council/Commission recommendation for a
TAL of 20.2 million lb (9.16 million kg) and resultant recreational
harvest limit of 8.1 million lb 3.67 million kg).
Response: NMFS carefully reviewed the Council's and Commission's
recommendation and found it unacceptable due to the low probability it
would achieve the FMP target fishing mortality rate. NMFS notes that
the recreational sector of the fishery exceeded its harvest limit for
the past two years (1996, 1997) and appears likely to do so again in
1998. As a result, NMFS agrees with the Congressman that maintaining
the recreational harvest limit at the status quo level is likely to
require additional restrictions on the recreational fishing sector. The
Council and Commission recommended measures for the recreational
fishery at a meeting December 15-17, 1998. NMFS encouraged adoption of
measures that would allow the recreational sector to attain, but not
exceed, its harvest limit, while minimizing adverse economic impacts to
the industry. NMFS has informed the Council and Commission that the
impacts of the recreational management measures must be evaluated in an
Initial Regulatory Flexibility Analysis, which will then be available
early in 1999 for public comment along with the proposed measures.
Comment 2: The three conservation groups stated that they think the
proposed TAL is unacceptably risky for several reasons and note that
some of these reasons were the same as those NMFS relied upon to reject
the Council's recommendation, that is: the quota has a low (15 percent)
probability of achieving the target F and has a 50 percent probability
of achieving F=0.32, which is significantly higher than the target;
caution is merited due to a retrospective pattern in the assessment
that has in the past resulted in revisions to the estimates of stock
size and fishing mortality rates in the last year of the assessment;
and in past years, the management agencies, including NMFS, have failed
to specify a harvest level that attains the annual target F.
Response: NMFS believes that the specification addresses many of
these concerns. Even without additional measures, the TAL of 18.52
million lb (8.40 million kg) has a higher probability of meeting the
target F than the Council's and Commission's recommendation. To
increase further the probability of achieving the target F, NMFS
recommends that the directed commercial fishery allocation should be
set equal to 7.47 million lb (3.39 million kg). This level is 15
percent lower than the level recommended by the Monitoring Committee,
increasing the probability of meeting the target F. NMFS recognized
that by setting the directed commercial fishery at this level, the
level of regulatory discard of summer flounder is likely to increase,
thus reducing the probability of achieving the target. To mitigate this
effect, 32.7 percent of the directed commercial quota would be set
aside for incidental catch. This recommendation, if followed, would
increase the probability of meeting the target F, and address concerns
often noted by industry that quota management is causing regulatory
discard. NMFS believes that this recommendation course would improve
the likelihood that the target fishing mortality rate would be
attained.
Comment 3: The three conservation groups commented that there are
still significant causes for concern about the summer flounder stock.
These include an NEFSC analysis that indicates that the overall discard
rate in 1997 was almost 30 percent; trawl surveys indicating that the
1996 and 1997 year classes were extremely poor; and the fact that TAL
in recent years has been exceeded and likely will be exceeded in 1998
as well.
Response: NMFS agrees that there are reasons to be concerned about
the summer flounder stock. The NMFS recommendation for the commercial
fishery would reduce the amount available for the directed fishery.
This reduction would speed stock rebuilding, which would improve stock
resilience when there are poor year classes. NMFS shares the concern
about discard levels in the commercial fishery. Industry commenters
have expressed frequent concerns about regulatory discards that occur
as a side effect of state quota management measures such as trip
limits. The recommendation to set aside 32.7 percent of the commercial
quota for incidental catch allowances is intended to address these
concerns and reduce discards, and, thus, reduce the overall fishing
mortality rate.
Comment 4: The State of Maryland and one fisheries association
commented that there is no known basis to support the NMFS position
that incidental catch constitutes 32.7 percent of the annual catch and
no scientific basis for the 32.7 percent allocation.
Response: An analysis of incidental landings has been done to
determine the level of incidental catch for most states (Section
6.1.1.3 of the FRFA). This analysis was done by defining an incidental
trip for summer flounder as any trip where summer flounder made up 10
percent or less, by weight, of the total weight of fish landed. The
analysis found that such trips comprise a large percentage of total
trips in many states. In every year since 1995, the States of Rhode
Island (15.68298 percent allocation of TAL), North Carolina (27.44584
percent allocation of TAL), Massachusetts (6.82046 percent allocation
of TAL), New Jersey (16.72499 percent allocation of TAL), and New York
(7.64699 percent allocation of TAL) had landings of incidentally
harvested summer flounder in excess of 32.7 percent of the total summer
flounder landings. The level in the State of Virginia has varied,
though on average, an incidental catch of summer flounder has
represented 36.4 percent of the total summer flounder landings in that
state.
Comment 5: The State of Maryland commented that NMFS'' proposal
requires states to reserve 32.7 percent of the quota as incidental
catch until the directed quota is reached in November or December, and
that it would be impossible then to catch the 32.7 percent under
incidental catch rules. The State of Maryland notes that most states
carefully monitor landings within specified quota limits.
Response: NMFS recommends that the states continue to monitor
carefully their summer flounder landings to stay within their
allocation of commercial quota. The NMFS recommendation is not that a
state must fully utilize the directed fishery allocation before
allocating the incidental catch provision to the fishery. States retain
the flexibility to enact the recommendation in a manner that suits the
characteristics of their specific fisheries.
Comment 6: The State of Maryland commented that the proposed summer
flounder specifications reduce the total allowable catch, and that is
not consistent with the provisions of the FMP.
Response: The specifications do not reduce total allowable summer
flounder catch. That level remains at 18.52 million lb (8.40 million
kg). NMFS recommends reducing the amount allocated to the directed
fishery, for the reasons noted in previous responses to comments. The
commenter is incorrect in assuming that a reduction in TAL would be
inconsistent with the FMP.

[[Page 72207]]

The FMP requires that specifications are to be set to achieve a target
F (currently 0.24). If F can be achieved only with a reduction in the
TAL, then overall landings (i.e., the quota) must be reduced. The
current commercial quota recommendation is a mechanism for use by the
states to increase the probability that 18.52 million lb (8.40 million
kg) will achieve the target F.
Comment 7: The State of North Carolina and one fisheries
association commented that the proposed summer flounder specifications
violate National Standard 1 because they do not allow the fishery to be
harvested at optimum yield (OY).
Response: OY is defined in Amendment 2 as all summer flounder
harvested pursuant to the FMP, so any specifications consistent with
the FMP framework will result in the achievement of OY. The commenters'
true concern seems to be that the state commercial quota cannot be
reached if the state must set aside 32.7 percent of the quota for
incidental catch. See responses to comments 5 and 6. It should be noted
that the level of incidentally caught summer flounder in North Carolina
has exceeded 32.7 percent.
Comment 8: The State of North Carolina and one fisheries
association stated that the proposed summer flounder measures violate
National Standard 2 because there was not a stock assessment in 1998,
so they are not based upon the best scientific information available.
In addition, the recommendation does not rely on industry knowledge
about the true status of the summer flounder stock. The 32.7 percent
incidental catch allocation is not based on scientific information.
Further, there is no information indicating that the 11.11 million lb
(5.04 million kg) commercial quota specified in 1998 was excessive. It
is a violation of National Standard 2 to set the quota artificially
high with the intent that some undeterminable amount of the quota will
not be fished.
Response: The last peer-reviewed stock assessment for summer
flounder was conducted in 1997, and NMFS recognized that the Council
and the Commission required updated information to set catch quotas for
1999. Thus, NMFS updated the results of the 1997 assessment in order to
provide the necessary catch and stock size projections for 1999. The
virtual population analysis (VPA) performed in June 1997 (SAW-25) was
re-run using updated catch statistics and 1997 survey indices. The
fishing mortality rate in 1997 and the stock size at age at the
beginning of 1998 were estimated using the stock size at age at the
beginning of 1997 from the re-run VPA and reported landings and
estimated discards in 1997. The fishing mortality in 1998 and stock
size at age at the beginning of 1999 were estimated, assuming that the
1998 commercial quota and recreational harvest limit would be taken.
Finally, the calculated options for catch in 1999 and stock size in
2000 under various fishing mortality levels in 1999 were also
estimated. This analysis was provided to the Council and Commission.
NMFS anticipates performing such annual updated assessments for all
stocks under management. New analytical ``benchmark'' assessments need
not be conducted annually to comply with National Standard 2. The
updated assessments will be done by individual scientists, with peer
reviews performed by the Council's Scientific and Statistical
Committee, and management advice prepared by the Council Monitoring
Committees. Consequently, the NEFSC Stock Assessment Workshop (SAW)
process will handle only ``benchmark'' assessments. Benchmark
assessments will be done for each stock every 3-4 years, utilizing
multiple years of new input and considering new analytical methods. All
SAW committee meetings, as well as the Council and Commission meetings,
are open to the public to incorporate comments from commercial and
recreational fishermen.
National Standard 2 requires the use of the best available
scientific information. It does not impose a burden on the agency to
develop new scientific information through any particular method (i.e.,
annual stock assessment workshop) before undertaking action. Industry
knowledge about the fishery, while useful, is not necessarily the best
scientific information available.
NMFS did not set the quota artificially high, presuming that the
entire quota would not be harvested. Industry members have frequently
expressed concern about high levels of regulatory discards of summer
flounder, and further, have commented publicly that they are not
reporting all discards in the vessel trip reports because they fear
that the information will be used to further restrict the fishery. The
recommended allocation for incidental catch is intended to address this
concern. The 32.7 percent incidental catch recommendation is a risk-
averse measure based on known discard rates that are probably
underestimated, given the fact that some industry members are not
reporting the total amount of discards.
Comment 9: Three fisheries associations commented that the proposed
summer flounder measures violate National Standard 3 because they do
not manage the stock as a unit throughout its range, in that the
commercial and recreational sectors are managed differently.
Response: The FMP does manage the stock throughout its range
through the specification of an annual harvest level to meet specific
mortality reduction targets. This harvest level applies to both the
commercial and recreational sectors of the fishery. Differing
management measures are applied to each sector because they do not
operate in the same fashion. This does not undermine the FMP's
consistency with National Standard 3.
The FMP specified different management approaches for the
commercial and recreational sectors when the comprehensive management
measures were initially enacted by Amendment 2 to the FMP in 1993.
These differences were due to differences in the data available for
monitoring the two sectors of the fishery. The commercial fishery
mandatory reporting system provides data that can be used to monitor
quotas and close the fishery. The recreational fishery landings are
compiled through a survey; data are not available in a timely fashion
to close the fishery when the harvest limit is attained. NMFS believes
that the recreational sector can be constrained to its harvest limit
through the specification of appropriately restrictive annual measures
(possession limits, minimum fish size, and seasonal restrictions).
Comment 10: The State of North Carolina and one fisheries
association stated that the proposed summer flounder measures violate
National Standard 4 because they discriminate between residents of
different states. The incidental catch measure will have different
impacts upon states that typically have minimal incidental catch
levels.
Response: National Standard 4 does not require that the impacts of
management measures be the same in all states. In fact, this would not
be possible, given the wide variations in state fisheries. The FRFA
demonstrates that the measures may have different impacts on
participants, depending on the level of participation in the summer
flounder fishery. The states are free to implement the incidental catch
recommendation in the manner that best meets the characteristics of
their fisheries.
Comment 11: The State of North Carolina and one fisheries
association

[[Page 72208]]

stated that the recommended summer flounder measures violate National
Standard 5, which requires measures to consider efficiency in
utilization but not to have economic allocation as their sole purpose,
because excessive recreational landings have not been addressed.
Response: The measures specified here promote efficiency through
the recommended harvest level that will promote the rebuilding of the
stock. The recommendation regarding the incidental catch allocation is
intended to reduce waste caused by discards. The recreational fishing
harvest limit is specified in this action. The recreational measures to
constrain anglers to this harvest limit are not part of this action.
NMFS shares the commenters' concern that the recreational fishery has
exceeded its target harvest limit for the past several years. The
Council and Commission recently took action to address this for 1999
and the measures they adopted at the Council's December 1998 meeting
are now under consideration by NMFS.
Comment 12: The State of North Carolina and one fisheries
association commented that the summer flounder measures violate
National Standard 6, which requires measures to take into account
variations in fisheries. The commenters say the measures do not account
for the fact that the summer flounder fishery is the most important
fishery in North Carolina from November through February. They also
note that the discard allocation does not account for the fact that
discard levels vary by gear type, with sea scallop dredge gear
accounting for most discards. They believe the application of the
incidental catch measure to all gears fails to account for variation in
the fishery.
Response: The only measures specified by this action are the annual
quota and its components. The specification of the annual quota takes
into account the variations and contingencies of the summer flounder
stock through the various considerations prescribed in 50 CFR 648.100.
These regulations also contain a measure that allows for the imposition
of restrictions on gear other than otter trawls through the annual
specification process. Discard estimation has been frustrated in part
by under-reporting of discards by some industry members who are fearful
of responsive management actions. The total discards in the otter trawl
fleet may well exceed that of the smaller scallop fleet, particularly
since our reports evidence increasing regulatory discards due to the
increased abundance of summer flounder. The recommendation regarding
the incidental catch allocation, while not mandatory as originally
proposed, is intended to address this very contingency regarding the
summer flounder fishery.
Despite the commenters' claim that summer flounder is the most
important species landed for the months of November through February,
NMFS landings data suggest that substantial amounts of dogfish,
croaker, bluefish, and kingfish are also landed in North Carolina
fisheries during this time period.
Comment 13: The State of North Carolina and a fisheries association
commented that the summer flounder specifications are in violation of
National Standard 7, which requires that measures minimize costs and
avoid unnecessary duplication.
Response: National Standard 7 requires that the benefits of the
fishery management program should outweigh the costs of compliance, and
that unnecessary duplication should be avoided. The analysis contained
in the FRFA shows that the benefits of the rebuilding program outweigh
the immediate costs associated with the annual specifications.
Comment 14: The State of North Carolina and a fisheries association
stated that the recommended summer flounder measures violate National
Standard 8, which requires management measures to take into account the
importance of fisheries resources to fishing communities. They believe
the proposed measures do not consider the importance of the fishery to
fishing communities, and focused their comments on communities in North
Carolina.
Response: NMFS prepared an FRFA, as required by the Regulatory
Flexibility Act, to analyze the economic impacts of the 1999
specifications, including the measures for summer flounder. This FRFA
included an analysis of the impacts upon communities. A review of
impacts upon North Carolina across the range of alternatives reveals
that, not only is North Carolina not projected to experience
significant economic impacts as a result of this rule, but even the
most restrictive allocation did not have any significant impacts upon a
large number of North Carolina vessels.
Comment 15: A fisheries association commented that, though the
proposed summer flounder specifications may not violate National
Standard 9 on its face, it is inconsistent with Congressional intent
because the incidental catch allocation has the effect of reducing
North Carolina's commercial quota by almost 1 million lb (0.45 million
kg). The State of North Carolina believes that the measures violate
National Standard 9 and that the reduction in the directed fishing
component of the commercial allocation will increase bycatch. The State
of North Carolina stated that the primary reason for discards given in
the sea sampling data is undersized fish, and that the incidental catch
allocation will not address that source of discard.
Response: The overall quota allocated to North Carolina is the same
as the initial quota allocated in 1998. However, NMFS is recommending
that the amount allocated to the directed fishery should be reduced as
a result of the allocation of 32.7 percent to an incidental catch
allocation. NMFS believes that it is likely that the reduction in the
directed fishing allocation will result in an increase in retained
incidental catch for North Carolina vessels as well as those from other
states. NMFS notes that in its comment, the State of North Carolina
agrees that the reduction in the directed fishing allocation will
increase retained incidental catches.
NMFS agrees with the commenter that the incidental catch allocation
will not reduce the amount of discards due to undersized fish. The
minimum mesh provision is intended to address this type of discarding.
The 5.5 inch (13.97 cm) minimum mesh throughout the net has not been in
operation long enough to determine if an adjustment to the mesh size is
warranted. An analysis of discards on trips carrying observers showed
that the major reason for discards was undersized fish (59.7 percent),
but the second most frequent reason was quotas or trip limits (27.6
percent). The incidental catch allocation is intended to address the
latter cause of discards.
Comment 16: One association commented that the proposed summer
flounder measures violate National Standard 10, which requires safety
of human life at sea to be promoted to the extent practicable.
Response: NMFS recommends that the states allocate 32.7 percent of
their commercial to incidental catch and use the incidental catch
allocation to allow vessels to land incidentally caught summer flounder
up to 10 percent by weight of other species on board at the end of a
trip. The states have the authority to implement a system that will
best allow them to utilize this allocation. NMFS hopes that the states
will enact systems that will not encourage carrying loads that threaten
vessel stability. It is not NMFS' intent for these measures to result
in this type of risky behavior. However, because the authority to
implement such measures lies with the states, NMFS can only recommend
that the states consider

[[Page 72209]]

safety at sea when they establish their incidental catch measures.
Comment 17: The State of North Carolina commented that the proposed
summer flounder measures violate the requirements of the Regulatory
Flexibility Act (RFA) because of the impacts it believes the measures
will have on North Carolina vessels, and because NMFS did not agree
with the State's suggestion that states should be allowed to redirect
any unused portion of the incidental catch allowance to the directed
fishery. An association notes that the port and community descriptions
in the NMFS analysis are insufficient to satisfy the intent of Congress
for analysis of impacts under RFA, and notes that they disagree with
the seasonal characterization of the North Carolina fishing activity in
one study cited (Griffith, 1996). The association commented that they
do not intend to criticize the conclusions of the researcher, but they
do criticize NMFS' use of the study.
Response: NMFS fully analyzed the impacts of the proposed measures
on the participants in the fishery, all of whom are classed as small
business entities for the purposes of the RFA. NMFS did not find the
significant impacts in North Carolina that are anticipated by the State
of North Carolina and the association. The findings differ due to
different assumptions concerning whether the North Carolina
participants will land the entire quota allocated to the state. North
Carolina claims that there are no other directed fisheries during the
winter months, so the allocation for incidental catch will not be fully
utilized by their vessels. However, NMFS notes that the State's fishery
operated on a bycatch basis for roughly eight months during 1998. The
trip limit during this time period was 100 lb (45.4 kg). The incidental
catch allocation allows for landing in excess of this trip limit. An
analysis of impacts of the summer flounder quota, including the
recommended 32.7 percent incidental catch allocation, shows that no
actively participating vessels from the State of North Carolina would
suffer greater than a 5 percent loss of revenue, and that 59 of the 125
actively participating vessels would have an increase in revenue.
The association points out that the Griffith report erroneously
characterizes the summer flounder fishery in North Carolina. Despite
the claim that summer flounder is the only species landed during the
winter months in North Carolina, NMFS notes that substantial amounts of
dogfish, croaker, bluefish, and kingfish are also landed in North
Carolina fisheries during this time period.
Comment 18: One association commented that the NMFS analysis of
social impacts did not assess the fact that increasing fishing
restrictions are making it difficult for industry participants to
obtain bank loans.
Response: Business entities, such as banks, set their own criteria
for making loans and conducting other financial transactions. The
commenter is implying that restrictions should be set to allow all
entities to prosper, which is beyond the scope of the FMP.
Comment 19: The State of North Carolina commented that the summer
flounder measures recommended by NMFS violate the Administrative
Procedure Act because they are arbitrary; capricious; an abuse of
discretion; not in accordance with law; in excess of NMFS statutory
jurisdiction, authority and limitation, and short of its statutory
right; unsupported by substantial evidence; and unwarranted by the
facts.
Response: NMFS based its summer flounder recommendation upon the
stock assessment information and the discussions by the Council and
Commission at their August 1998 meeting. The intent of the measures is
to end overfishing and to address the concerns expressed by industry,
the Council, and the Commission about the level of incidental catch and
regulatory discards. NMFS made every effort to incorporate the comments
from industry, Council, and Commission, as well as the scientific data
on the status of the stock, when making this recommendation. The annual
measures have been set as specified in the FMP; the process is in
compliance with the Administrative Procedure Act. The incidental catch
recommendation is the same as that specified by the Council and
Commission, differing only in the amount of incidental catch.
Comment 20: The States of Connecticut and Virginia and the
Commission stated the proposed set-aside of the summer flounder quota
for the incidental catch fishery will prevent fishers from landing the
quota share allocated to the states under the Summer Flounder FMP.
Response: See responses to comments 5 and 6.
Incidental catch in the State of Virginia has been 36.4 percent, on
average, of the total state summer flounder landings. Since, on
average, 36.4 percent of the summer flounder currently landed in this
State is incidentally caught with other species, the recommended
incidental catch allocation should not prevent the State from landing
its entire quota. Data are not available from the State of Connecticut.
Comment 21: The States of Virginia, New York, and Connecticut and
the Commission questioned how the summer flounder incidental catch
proposal will be monitored and believe that it will add significant
quota monitoring burden to the states.
Response: Most states already have a mechanism to monitor the
landings relative to the overall quota. Monitoring the incidental-catch
landings would not be a substantial additional burden.
Comment 22: The States of New York and Connecticut and the
Commission stated that it is beyond the authority of NMFS to allocate
the TAL for each state between a directed and an incidental catch
allocation.
Response: NMFS does not claim to have the authority to make an
allocation to an incidental catch fishery. Rather, it makes this
recommendation to the states to establish such allocation. This
recommendation to divide the TAL between a directed and an incidental
catch allocation is based upon the Council and Commission
recommendation adopted by those bodies at the August 1998 meeting. That
recommendation advocated the same allocation system with different
levels of landings from those recommended by NMFS.
NMFS supports the Council's and Commission's recommendation to
allocate a portion of the TAL to an incidental catch fishery, in part
because of the concerns from industry that a high level of mortality is
occurring due to regulatory discards of incidental catch. The 32.7
percent incidental catch allocation would address this concern over
discards and would allow fishers to continue to land and to sell summer
flounder caught as incidental catch in other fisheries. This would help
address the concerns often expressed by industry about regulatory
discards, as well as prevent any further increases in incidental catch
that may occur as a result of the decrease in the directed fishery
allocation and increased stock biomass. While this allocation system
would result in a reduction in the directed fishery, it would allow
summer flounder to be landed and sold up to a landings level equal to
last year's directed fishery, therefore avoiding negative economic
impacts.
Comment 23: The State of New Jersey and an industry member
recommended the summer flounder incidental catch wording be modified as
follows: that summer flounder may be caught and possessed only if the
summer flounder on board a vessel does not exceed 10

[[Page 72210]]

percent by weight of the total weight of all other species landed and
sold.
Response: The manner in which states choose to word their
incidental catch allocation is within their discretion. NMFS notes that
requiring law enforcement personnel to prove that summer flounder are
landed and sold before subjecting a vessel operator to the 10 percent
restriction may be problematic.
Comment 24: The State of New Jersey recommended the proposed set-
aside of 32.7 percent of the summer flounder quota for the incidental
catch fishery be modified as follows: a 15 percent set-aside, with 10
percent specified as incidental catch for the directed fishery and 5
percent for incidental catch in the non-directed fishery.
Response: NMFS notes the State of New Jersey's comments, but
disagrees with its recommendation. NMFS recommended the voluntary
incidental catch allocation because it addresses the concerns about
discard mortality and increases the probability of achieving the target
F. Setting the incidental catch fishery at 15 percent would reduce the
probability of achieving the target F. In addition, dividing the
incidental catch allocation between the directed and non-directed
fisheries would add monitoring and enforcement requirements beyond
those currently required by the 1998 specifications.
Comment 25: One association commented that, while it would prefer
the Council's and Commission's recommendation to specify a 1999 summer
flounder TAL of 20.20 million lb (9.16 million kg), it would support
the 18.52 million lb (8.40 million kg) TAL.
Response: The comments have been noted and the proposed TAL of
18.518 million lb (8.40 million kg) for the 1999 summer flounder
fishery is implemented by this rule.
Comment 26: The Commonwealth of Massachusetts and three
conservation groups stated the proposed TAL of 18.52 million lb (8.40
million kg) for the 1999 summer flounder fishery is no less risk-prone
than the 20.20 million lb (9.16 million kg) proposed by the Council and
Commission.
Response: The TAL of 18.52 million lb (8.40 million kg) has a
higher probability of meeting the target F than the Council's and
Commission's recommendation. This probability is increased by the
recommendation to address the incidental catch mortality in the
commercial fishery, which was also identified as a major concern by the
Council and industry. Further, the recommended 32.7-percent incidental
catch allocation would result in a directed commercial quota 15 percent
less than the Monitoring Committee's recommendation, and would increase
the probability of meeting the target F, while reducing the regulatory
discards that would otherwise occur as a result of the reduction in the
directed fishery.
Comment 27: The Commonwealth of Massachusetts urges NMFS to set the
summer flounder TAL for 1999 at 20.20 million lb (9.16 million kg) and
to continue the 15 percent allocation for incidental catch.
Response: NMFS revised the Council's and Commission's
recommendation of 20.20 million lb (9.16 million kg), because it had
only a 3-percent probability of achieving the target F of 0.24. Given
this low probability of achieving the target and the fact that the
target F has never been achieved in this fishery, NMFS felt that the
20.20-million lb (9.16-million kg) TAL was unnecessarily risk-prone.
NMFS specified the 18.52-million lb (8.04-million kg) TAL because it
has a higher probability of achieving the target F. In addition, NMFS
recommends that the states implement additional measures to address
incidental catch of summer flounder. Implementation of these measures
would increase the probability of achieving the target in 1999 to
greater than 18 percent. Additionally, these measures would allocate
6.47 million lb (2.93 million kg) to the directed commercial quota,
which is less than the commercial quota recommended by the Monitoring
Committee. It should be noted that the Monitoring Committee's
recommended TAL had a 50-percent probability of achieving the target F
for 1999.
Comment 28: The Commission and the States of Connecticut and New
York stated that the Commission compliance criteria do not require
states to implement a set-aside of their summer flounder allocations
specifically for incidental catch fisheries. The Commission's summer
flounder FMP requires the voluntary cooperation of the states in order
to be effective.
Response: The Council and Commission voted on a motion at the
August 1998 meeting to ``provide for additional incidental catch
reserves.'' Discussion at the meeting indicated that the 1998
compliance criteria, requiring an incidental catch allocation of 15
percent, would be maintained for 1999. In addition, the Council and
Commission recommended that additional poundage be allocated to
incidental catch, bringing the incidental catch allocation to 22
percent. The recommended incidental catch allocation is based on this
very system, only using the 18.52 million lb (8.4 million kg) TAL. At
the time NMFS made its recommendation and at the time of the proposed
rule, a document dated October 1997 stated that these criteria were
mandatory. Since then, these criteria have been revised by the
Commission and are now voluntary. NMFS will encourage the Commission to
re-evaluate the revision, since the incidental catch allocation relies
upon the states for effective implementation.
Comment 29: The Commission stated that the analysis concerning the
likelihood of achieving the target fishing mortality for proposed
annual specifications for the 1999 summer flounder fishery is weak.

[[Page 72211]]

Response: It is not clear from the comment what analysis the
Commission feels should be done. The updated stock assessment was used
to make projections and indicated that the TAL of 18.52 million lb
(8.40 million kg) has a higher probability of meeting the target F than
the Council's and Commission's recommendation. To increase further the
probability of achieving the target F, the directed commercial fishery
is recommended to be set lower than the directed commercial fishery
allocation associated with the 14.965 million lb (6.79 million kg) TAL
recommended by the Monitoring Committee, with the remaining commercial
quota set aside for incidental catch. The Monitoring Committee's
recommendation had a 50-percent probability of meeting the target F.
NMFS expects that by setting the directed commercial fishery at this
level, the level of incidental catch of summer flounder will increase,
thus reducing the probability of achieving the target. To mitigate this
effect, 32.7 percent of the commercial quota is set aside for
incidental catch. This increases the probability of meeting the target
F, while reducing the regulatory discards that would otherwise occur.
Comment 30: The Commission and the State of Connecticut commented
that the proposed summer flounder measures may result in an increase in
discard mortality.
Response: NMFS acknowledges that a decrease in the directed
commercial quota may result in an increase in the incidental catch of
summer flounder when directed quota is not available. To mitigate this
effect, 32.7 percent of the commercial quota is recommended to be
allocated to incidental catch. This will allow those summer flounder
harvested in other fisheries to be landed and sold, with the intent of
reducing regulatory discards and their associated mortality.
Comment 31: The Commission stated the proposed annual
specifications for the 1999 summer flounder fishery do not ensure that
Federal and state regulations are compatible. The comment notes that
Board action is final and that the NMFS revision of the Council
recommendation poses an implementation problem to the states.
Response: The method of setting the annual specifications for
summer flounder were reviewed and approved by the Council, Commission,
and NMFS during the review and approval of Amendment 2 to the Summer
Flounder FMP. This process requires the Council and Commission to make
a recommendation to NMFS during the fall of the year. NMFS is then
required to review the measures to ensure they meet the FMP objectives.
If NMFS finds that they do not, the Regional Administrator must propose
measures that will ensure the FMP objectives are attained. Clearly the
Board's final action is a recommendation to the Regional Administrator.
The FMP does not contemplate a separate action on the part of the Board
that the states must implement.
Comment 32: The State of New Jersey and one fisheries association
commented that the measures should allow the states to reallocate
summer flounder incidental catch to directed fishing if necessary to
attain the total allocation.
Response: NMFS' recommendation to allocate the commercial quota to
an incidental fishery is identical to the measure adopted by the
Council and Commission at their August 1998 meeting. The Council and
Commission system would have allocated 22 percent of the commercial
quota to incidental catch, and, as written, would not have allowed that
allocation to be reallocated to the directed fishery. NMFS has adopted
the recommendation with a lower TAL. The recommendation is not intended
to prevent any state from harvesting its assigned allocation. While it
would result in a lower directed fishery, a state has the authority to
implement an incidental catch fishery that would result in the entire
incidental catch allocation being landed up to that state's annual
quota.
Comment 33: One fisheries association recommended that the 32.7
percent incidental catch allocation of the summer flounder quota for
the incidental catch fishery should be replaced by an allocation of 10
percent of the coastwide commercial quota.
Response: NMFS has recommended the 32.7-percent incidental catch
allocation because it would result in a higher probability of achieving
while not exceeding the target F than a 10-percent allocation would. A
10-percent allocation would be lower than the level of incidental catch
allocated in 1998 or recommended by the Council and Commission for
1999. A 10-percent incidental catch allocation in combination with the
18.52-million lb (8.40-million kg) TAL would result in a less than 18-
percent probability of achieving the target F and, therefore, is a less
desirable option than the NMFS recommendation.
Comment 34: One fisheries association supported the proposed 1999
summer flounder recreational harvest of 7.41 million lb (3.36 million
kg).
Response: The association's comments are noted and the measure is
implemented by this rule.
Comment 35: One individual stated the proposed 1999 specifications
for the summer flounder fishery should be replaced with a 7,500-lb
(3,402-kg) trip limit per week.
Response: The FMP does not currently authorize NMFS to specify a
coastwide trip limit. The Council and Commission have submitted for
Secretarial review Amendment 12 to the FMP, which would allow the
Council and Commission to develop such a measure through a proposed
framework process if Amendment 12 were approved.
Comment 36: One individual stated the proposed 1999 specifications
for the summer flounder, scup, and black sea bass fishery will not
ensure the greatest benefit to the nation.
Response: NMFS conducted a Regulatory Impact Review (RIR) as part
of the review of the 1999 summer flounder, scup, and black sea bass
specifications. This RIR is part of the process of preparing and
reviewing regulatory actions and provides a comprehensive review of the
changes in net economic benefits to society associated with those
actions. This analysis also provides a review of the problems and
policy objectives prompting the regulatory proposals and an evaluation
of the major alternatives that could be used to solve the problems. The
purpose of this analysis is to ensure that the regulatory agency
systematically and comprehensively consider all available alternatives
so that the public welfare can be enhanced in the most efficient and
cost-effective way. This RIR addresses many items in the regulatory
philosophy and principles of Executive Order (E.O.) 12866.
The recommended actions are necessary to advance the recovery of
these stocks, and to establish the harvest of these species at
sustainable levels. The recommended action benefits in a material way
the economy, productivity, competition, and jobs. The recommended
action will not adversely affect, in the long-term, competition, jobs,
the environment, public health or safety, or state, local, or tribal
governments, or communities. Based on this review, NMFS has concluded
that the measures will result in a net benefit to the nation.

[[Page 72212]]

Comment 37: One individual proposed a 32.7-percent allocation as
the summer flounder incidental catch quota for the recreational
fishery.
Response: The Council and Commission made recommendations for the
recreational sector of the 1999 fishery at their December meeting. Such
measures must ensure that the recreational fishery comply with the
harvest level specified, though the tools available in the FMP are
limited to specification of individual possession limits, minimum fish
size, and fishing seasons.
Comment 38: The State of Connecticut agreed with NMFS that the
summer flounder TAL for 1999 should remain at 18.52 million lb (8.40
million kg).
Response: The comment has been noted and the 18.52 million lb (8.40
million kg) TAL is implemented by this rule.
Comment 39: The State of Connecticut stated the incidental catch
limit for summer flounder will create a system that is impossible to
enforce at sea and would be difficult to enforce at dockside prior to
offloading.
Response: Under the current specifications, many states implement a
trip limit to manage their commercial quota. Since those states have
implemented such provisions, they must have established enforcement
mechanisms that can be used for the 1999 fishery.
Comment 40: The State of Connecticut stated that it was never the
intent of the Council and the Commission to have 22 percent of the
summer flounder TAL allocated to the incidental catch fishery.
Response: The Council and the Commission clearly recommended that
22 percent of the commercial quota would be allocated to incidental
catch fisheries. The motion made at the August 1999 Council and
Commission meeting reads as follows: ``I move we specify a TAL of 20.20
million lb (9.16 million kg) and indicate that the commercial quota
increase should be used by states to provide for additional bycatch
reserves * * * .'' When the percentage incidental catch allocation is
calculated, based on this motion, it is 22 percent of the commercial
quota. Given this motion, NMFS believes it is clear that the Council's
intent was to allocate 22 percent to an incidental catch fishery. The
Council staff clearly agreed, as indicated in their submission to NMFS.
Comment 41: The States of New York and North Carolina commented
that the term bycatch was used inappropriately in the proposed rule,
given the Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act).
Response: NMFS acknowledges that the term ``bycatch'' was not
properly used in the proposed rule, because under the Magnuson-Stevens
Act, it means fish caught but not sold. To correct for this error, the
word ``bycatch'' is replaced by the phrase ``incidental catch.''
Comment 42: The State of New York and the Commission commented that
they support the proposed specifications for the 1999 scup and black
sea bass fisheries.
Response: The comments have been noted and the specifications for
the 1999 scup and black sea bass fisheries are unchanged from the
proposed rule.
Comment 43: The Commonwealth of Massachusetts stated that it
continues to feel unfairly and inequitably treated by the scup
management plan because the measures do not address the high level of
scup discard mortality attributed to other small-mesh fisheries.
Response: The Council and Commission, as well as NMFS, share the
State of Massachusetts' concern about the level of scup discard
occurring in small mesh fisheries. To address this issue, the 1999 scup
specifications include two measures to account for incidental catch of
scup. First, a discard estimate is subtracted from the commercial quota
to account for the mortality that occurs due to discards. Second, the
minimum mesh threshold is reduced to allow for the landing of
incidentally caught scup while at the same time discouraging the use of
small-mesh by directed scup fishermen. Some incidental catch allowance
is necessary in order that fish that might otherwise be discarded dead
would instead be landed and apply to the commercial quota, increasing
the probability that the target exploitation rate will be met.
Comment 44: The Commonwealth of Massachusetts stated that there are
no analyses to support NMFS' contention that by dropping the threshold
trigger from 4,000 lb (1,814 kg) to 200 lb (90.7 kg) (winter) and from
1,000 lb (454 kg) to 100 lb (45.4 kg) (summer), discards of only 2.085
million lb (0.946 kg) of scup will occur.
Response: The 1997 level of discards, 3.95 million lb (1.79 million
kg), occurred with seasonal mesh thresholds of 4,000 lb (1,814 kg) and
1,000 lb (454 kg). The reduction of the minimum mesh threshold will
allow for some incidental catch of legal-sized scup harvested in small-
mesh fisheries to be landed. At the same time, the low amount allowed
will discourage the use of small mesh by vessels to target scup by
eliminating the incentive the large threshold amount may have provided.
As such, this threshold would reduce the amount of discards of fish
harvested in the small-mesh fisheries for other species. The reduced
incidental catch allowance is necessary so that fish that might
otherwise be discarded dead would now be landed and apply to the
commercial quota, increasing the probability that the target
exploitation rate will be met.

Classification

This action is authorized by 50 CFR part 648 and complies with the
National Environmental Policy Act.
These specifications have been determined to be not significant for
purposes of E.O. 12866.
This final rule implements the 1999 measures for the summer
flounder, scup, and black sea bass fisheries. NMFS prepared an FRFA for
this final rule, pursuant to 5 U.S.C. 603. A copy of the FRFA can be
obtained from the Acting Regional Administrator (see ADDRESSES). A
summary of the FRFA follows.

Summary of FRFA

This rule would apply to the following small entities: Actively
participating summer flounder, scup, and black sea bass commercial
vessels (990 vessels). While they are not actively participating, this
rule would also apply to all vessels currently permitted for summer
flounder, scup, and black sea bass. This rule would apply more
indirectly to other, related segments of the industry, including--but
not limited to--dealers and processors.
This rule does not implement new reporting or recordkeeping
measures. There are no changes to existing reporting requirements.
Currently, all summer flounder, scup and/or black sea bass federally-
permitted dealers must submit weekly interactive voice response reports
of fish purchases. The owner or operator of any vessel issued a
moratorium vessel permit for summer flounder, scup, black sea bass,
must maintain on board the vessel, and submit, an accurate daily
fishing log report for all fishing trips, regardless of species fished
for or taken. The owner of any party or charter boat issued a summer
flounder or scup permit other than a moratorium permit and carrying
passengers for hire shall maintain on board the vessel, and submit, an
accurate daily fishing log report for each charter or party fishing
trip that lands summer flounder or scup, unless such a vessel is also
issued another permit that requires regular reporting, in which case a
fishing log report is required for each trip regardless of species
retained. These reporting requirements are critical for monitoring the
harvest level of these fisheries.

[[Page 72213]]

The FRFA examines five scenarios. Each was examined for impacts on
all vessels permitted to fish for these species since that represents
the universe of potentially impacted small entities. Each was also
examined for impacts on vessels that landed any of those species in
1997, the last full year for which there is landings data. The subset
was examined to determine the impacts on currently active participants
in the fishery. Table 4 summarizes the scenarios analyzed in the FRFA.

Table 4.--Comparison (in Pounds) of the Scenarios of Quota Combinations Reviewed
----------------------------------------------------------------------------------------------------------------
Percent of
Commercial 1997 landings Percent change
quota \1\
----------------------------------------------------------------------------------------------------------------
Quota Scenario 1:
Fluke NMFS Preferred Alternative............................ 11,111,298 123.82 23.82
Scup Preferred Alternative.................................. 2,534,160 52.42 -47.58
Black Sea Bass Preferred Alternative........................ 3,024,742 114.66 14.66
Quota Scenario 2:
Fluke Council Preferred Alternative......................... 12,120,000 135.06 35.06
Scup Preferred Alternative.................................. 2,534,160 52.42 -47.58
Black Sea Bass Preferred Alternative........................ 3,024,742 114.66 14.66
Quota Scenario 3:
Fluke Technical Recommendation.............................. 8,787,000 97.92 -2.08
Scup Preferred Alternative.................................. 2,534,160 52.42 -47.58
Black Sea Bass Preferred Alternative........................ 3,024,742 114.66 14.66
Quota Scenario 4 (Least restrictive):
Fluke Council Preferred Alternative......................... 12,120,000 135.06 35.06
Scup Non-Selected Alternative 2............................. 3,510,000 72.61 -27.39
Black Sea Bass Non-Selected Alternative 2................... 4,710,000 171.33 71.33
Quota Scenario 5 (Most restrictive):
Fluke Technical Recommendation.............................. 8,787,000 97.92 -2.08
Scup Non-Selected Alternative 1............................. 670,000 13.86 -86.14
Black Sea Bass Non-Selected Alternative 1................... 1,400,000 53.07 -46.93
----------------------------------------------------------------------------------------------------------------
\1\ It is important to note that, while the total allowable catch in 1999 is proposed to be the same as in 1997,
the 1997 commercial quota was reduced substantially due to significant overages in the 1996 fishing year.

[[Page 72214]]

The number of vessels impacted was assessed for 7 classes of
vessels, based on either the combinations of species permits or by
species landings. An analysis of Scenario I (the harvest limits
implemented by this rule) indicates that these levels will result in
greater than a 5 percent revenue loss to 191 actively participating
commercial vessels. However, this analysis did not consider the 32.7-
percent allocation for incidental catch, which is the likely result of
states implementing recommended incidental catch measures. When that
allocation was factored into the analysis, 62 vessels were found to
have a greater than 5-percent revenue loss. Impacts on these 62 vessels
varied. No vessels landing combinations of summer flounder or black sea
bass were in this group, while 31 vessels landing all three species
were. When all currently permitted vessels were examined, 194 vessels
were found to have greater than a 5-percent revenue loss under these
measures. The vessel class with the largest number of affected vessels
were vessels permitted for scup, black sea bass, and summer flounder
(114 vessels were impacted by a greater than 5 percent revenue loss).
Scenario I was selected as the preferred alternative to be
implemented by this rule because it has the greatest probability of
achieving the FMP's targets. It also has measures to address concerns
about incidental catch in the summer flounder and scup fisheries. While
some impacts would be realized by vessels landing scup as a result of
the reduction in the scup TAC, those impacts should be reduced for
vessels that would benefit from increases in the summer flounder and
black sea bass allocations for 1999, when compared to 1997.
An analysis of the harvest limits in Scenario II indicates that
these levels would result in a negative economic impact to 65 of the
actively participating vessels. Impacts on these 65 vessels varied. No
vessels landing combinations of summer flounder or black sea bass were
in this group, while 34 vessels landing all three species were. When
additional analyses were conducted to account for a 22-percent
incidental catch allocation, 59 actively participating vessels would
have greater than a 5-percent revenue loss. When all currently
permitted vessels were examined, 56 vessels were found to have greater
than a 5 percent revenue loss under these measures. The vessel class
with the largest number of affected vessels were vessels permitted for
all three fisheries: Scup, black sea bass, and summer flounder (27
vessels were impacted by a greater than 5-percent revenue loss). NMFS
did not select this alternative because it had only a 3-percent
probability of achieving the target F for summer flounder in 1999.
An analysis of the harvest limits in Scenario III indicates that
these harvest levels would result in a negative economic impact to 122
of the actively participating vessels. Impacts on these 122 vessels
varied. No vessels landing black sea bass only were in this group while
71 vessels landing all three species were. When all currently permitted
vessels were examined, 122 vessels were found to have greater than a 5-
percent revenue loss under these measures. The vessel class with the
largest number of affected vessels were vessels permitted for all three
fisheries: Scup, black sea bass, and summer flounder (74 vessels were
impacted by a greater than 5 percent revenue loss). NMFS did not select
this scenario because despite the increased probability that the summer
flounder target F would be achieved, no measures exist to address the
concerns about incidental catch in this fishery. Under this scenario,
the commercial quota would be reduced, likely resulting in an increase
in the discards of summer flounder.
An analysis of the harvest limits in Scenario IV indicates that
these levels would result in a negative economic impact to 23 of the
actively participating vessels. Impacts on these 23 vessels varied. No
vessels landing combinations of summer flounder or black sea bass or
landing scup and summer flounder were in this group while 10 vessels
landing all scup and black sea bass were. When all currently permitted
vessels were examined, 18 vessels were found to have greater than a 5-
percent revenue loss under these measures. The vessel class with the
largest number of affected vessels were vessels permitted for scup and
black sea bass (9 vessels were impacted by a greater than 5 percent
revenue loss). NMFS rejected this scenario because it had a low
probability of achieving the target F's for the summer flounder and
scup fisheries.
An analysis of the harvest limits in Scenario V indicates that
these levels would result in a negative economic impact to 290 actively
participating commercial vessels with impacts on vessels landing all
species combinations. Impacts on these 290 vessels ranged from 4
vessels landing scup only to 147 vessels landing all three. When all
currently permitted vessels were examined, 272 vessels were found to
have greater than a 5 percent revenue loss under these measures. The
vessel class with the largest number of affected vessels were vessels
permitted for all three fisheries: Scup, black sea bass, and summer
flounder (138 vessels were impacted by a greater than 5 percent revenue
loss). NMFS did not select this scenario because, despite the increased
probability that the summer flounder target F would be achieved, no
measures exist to address the concerns about incidental catch in this
fishery. Under this scenario, the commercial quota would be reduced,
likely resulting in an increase in the incidental catch of summer
flounder. In addition, the reduction of the black sea bass TAL under
this scenario would result in an F rate that would accelerate stock
rebuilding; however, it would also result in significant impacts on the
commercial fishery while not being necessary to meet the FMP
requirements.
Comments on the IRFA were received from the State of North
Carolina. Those comments expressed concerns about the adequacy of the
analysis done for operating out of the State of North Carolina. The
basic analytical method was unchanged from the IRFA as the result of
comments, though NMFS did additional analysis to clarify some points,
including an expanded analysis of the incidental catch provision. NMFS
completed these analyses to ensure that all aspects of the measures and
of the summer flounder, scup, and black sea bass fisheries have been
examined. (End of summary of FRFA.)

[[Page 72215]]

This action implements 1999 specifications for the summer flounder,
scup, and black sea bass fisheries. This action does not significantly
revise management measures in a manner that would require time to plan
or prepare for those revisions. This action establishes annual quotas
which are used to control the harvest of these fisheries. Closures must
be implemented immediately to conserve fishery resources when a quota
is attained. This action recommends allocation of a summer flounder
incidental catch to be utilized in accordance with incidental catch
measures approved by the Council and Commission at their August 1998
meeting. Since these measures were approved by the Council and
Commission, the states should be taking action to implement them by
January 1, 1999. Because of the need to implement these measures in a
timely manner to address overfishing of summer flounder, scup, and
black sea bass, the Assistant Administrator for Fisheries, NOAA, has
determined, under 5 U.S.C. 553(d)(3), that to delay for 30 days the
effectiveness of these measures would be contrary to the public
interest. Accordingly, they are being made effective January 1, 1999.
The annual specifications for the scup fishery include a provision to
reduce the minimum mesh threshold (Sec. 648.123(a)(1)) that would be
more restrictive than the current mesh provision. In order to allow the
fishery time to come into compliance with this provision, it will not
become effective until February 1, 1999.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: December 23, 1998.
Andrew A. Rosenberg,
Deputy 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. 648.123, paragraph (a)(1) is revised to read as follows:

Sec. 648.123 Gear restrictions.

(a) Trawl vessel gear restrictions--(1) Minimum mesh size. The
owners or operators of otter trawlers who are issued a scup moratorium
permit and who possess 200 lb or more (90.7 kg or more) of scup from
November 1 through April 30 or 100 lb or more (45.4 kg or more) of scup
from May 1 through October 31, must fish with nets that have a minimum
mesh size of 4.5 inches (11.43 cm) diamond mesh, applied throughout the
codend for at least 75 continuous meshes forward of the terminus of the
net, or for codends with fewer than 75 meshes, the minimum-mesh-size
codend must be a minimum of one-third of the net, measured from the
terminus of the codend to the head rope, excluding any turtle excluder
device extension. Scup on board these vessels shall be stored
separately and kept readily available for inspection.
* * * * *
[FR Doc. 98-34511 Filed 12-30-98; 8:45 am]
BILLING CODE 3510-22-P

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