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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 971015246-7293-02; I.D. 100897D]

RIN 0648-AK44

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 specifications for the 1998 summer flounder, scup, and

black sea bass fisheries; final rule, technical amendment;

notifications of commercial quota harvest.

-----------------------------------------------------------------------

SUMMARY: NMFS issues the final specifications for the 1998 summer

flounder, scup, and black sea bass fisheries. The intent of this

document is to comply with implementing regulations for the summer

flounder, scup, and black sea bass fisheries that require NMFS to

publish measures for the upcoming fishing year that will prevent

overfishing of these species. NMFS announces that no quota is available

in several states for specified 1998 fisheries as follows: the State of

Delaware is notified that no commercial summer flounder or Summer

period commercial scup quotas are available in 1998; the State of New

Hampshire is notified that no Summer period commercial scup quota is

available for 1998. NMFS advises vessel and dealer permit holders that

no commercial quotas are available for landing those species in those

States during the specified time periods.

DATES: The amendments to Secs. 648.14(u)(1), 648.100(a), 648.143(a),

and Sec. 648.144(a)(1)(i) are effective January 1, 1998. The final

specifications for the 1998 summer flounder, scup, and black sea bass

fisheries and notifications of commercial quota harvest are effective

January 1, 1998, through December 31, 1998.

ADDRESSES: Copies of supporting documents used by the Summer Flounder,

Scup, and Black Sea Bass Monitoring Committees and of the Environmental

Assessment (EA), Regulatory Impact Review, and the Final Regulatory

Flexibility Analysis (FRFA) are available from: David R. Keifer,

Executive Director, Mid-Atlantic Fishery Management Council, Room 2115,

Federal Building, 300 South New Street, Dover, DE 19904-6790.

FOR FURTHER INFORMATION CONTACT: Regina L. Spallone, Fishery Policy

Analyst, (978) 281-9221.

SUPPLEMENTARY INFORMATION: The Fishery Management Plan for the Summer

Flounder, Scup, and Black Sea Bass Fisheries (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

(Centropristis striata) in U.S. waters of the Atlantic Ocean from

35 deg.15.3' N. latitude, the latitude of Cape Hatteras Light, NC,

northward to the U.S./Canada border. Implementing

[[Page 66305]]

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

Sec. 648.140 (black sea bass), the Administrator, Northeast Region,

NMFS (Regional Administrator), implements certain measures for the

fishing year to ensure achievement of the appropriate target fishing

mortality (F) or exploitation rate for each fishery, as specified in

the FMP. The management schedule adopted in Amendment 7 to the FMP for

summer flounder established a target F equal to that which results in

the maximum yield per recruit (Fmax), currently 0.24, in

1998 and thereafter. The target exploitation rate for scup for 1998 is

47 percent, the rate corresponding to F = 0.72. For black sea bass, the

FMP specifies a target exploitation rate for 1998 of 48 percent,

corresponding to F = 0.73. The annual measures contained in this final

rule are unchanged from the proposed 1998 specifications that were

published in the Federal Register on October 20, 1997 (62 FR 54427).

Some regulatory clarifications are described in the section Changes

From the Proposed Rule of this document. 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 1998 summer flounder, scup, and black sea bass

fisheries (October 20, 1997, 62 FR 54427), and is not repeated here.

NMFS will publish in the Federal Register at a later date the 1998

recreational management measures for summer flounder, scup, and black

sea bass.

Summer Flounder

This rule will implement the following measures for summer flounder

in 1998: (1) Total Allowable Landings (TAL) of 18.52 million lb (8.40

million kg); (2) a coastwide commercial quota of 11.11 million lb (5.04

million kg); and (3) a coastwide recreational harvest limit of 7.41

million lb (3.36 million kg). The TAL is unchanged from 1997, despite

the most recent assessment for summer flounder (Stock Assessment

Workshop (SAW) 25, August 1997) that indicates that the FMP measures

have yet to reduce F below 1.0. However, the allocation of the TAL has

been revised.

SAW-25 recommended that additional measures should be considered to

minimize commercial and recreational discard mortality. To address

these concerns, this rule specifies that 15 percent of a state's

commercial quota allocation must be set aside for a bycatch fishery and

that a state must implement trip limits with the objective of keeping

its fishery open all year. Since the FMP does not specifically include

a provision for a bycatch allocation, the measure must be enacted by

the states. Therefore, this provision was made mandatory under the

Atlantic Coastal Fishery Cooperative Management Act (Atlantic Coastal

Act) and was adopted as a compliance criterion by the Commission's

Summer Flounder, Scup, and Black Sea Bass Board. The commercial quota

is allocated among the states based on historical catch shares

specified in the FMP.

The bycatch allocation is effectively a 15-percent reduction in the

commercial quota for the directed summer flounder fishery. The bycatch

quota allocation will extend the season and will reduce discard waste

in the fishery. When combined with anticipated commercial quota

deductions due to overages in the 1997 fishing year, this provision

will increase the probability of achieving Fmax. Based on

commercial landings as of November 8, 1997, there will be an estimated

quota overage in 1997 of 273,156 lb (123,901 kg) (3.3 percent) if there

are no further late reports during 1997 and all states are closed with

no additional overages. Recent approval of Amendment 10 to the FMP (62

FR 63872, December 3, 1997) means that a minimum mesh size requirement

throughout the net will be implemented effective on June 3, 1998,

further reducing F on sublegal fish.

In 1997, the State of Delaware was closed to the landing of summer

flounder by Federal permit holders as a result of deductions to the

1997 quota for quota overages in 1996 (62 FR 10473, March 7, 1997). As

a result of those deductions and further quota reductions as published

in the Federal Register on July 15, 1997 (62 FR 37741), the 1997

commercial quota allocation to the State of Delaware was -5,662 lb (-

2,568 kg). The final 1998 quota for Delaware, when added to its 1997

quota, is not sufficient to offset this negative allocation.

Consequently, Delaware will have no commercial quota for 1998. To

prevent landings in Delaware by Federal permit holders, the State is

closed to the landing of summer flounder by Federal permit holders for

1998. The regulations at Sec. 648.4(b) provide that Federal permit

holders agree, as a condition of their permit, not to land summer

flounder in any state that the Regional Administrator has determined no

longer has commercial quota available. Therefore, effective 0001 hours

January 1, 1998, landings of summer flounder in Delaware by vessels

holding commercial Federal fisheries permits are prohibited for the

remainder of the 1998 calendar year, unless additional quota becomes

available through a quota transfer and is announced in the Federal

Register. Federally permitted dealers are also advised that they may

not purchase summer flounder from Federally permitted vessels that land

in Delaware for the remainder of the calendar year, or until additional

quota becomes available through a transfer. No landings of summer

flounder in Delaware have been reported for 1997 by Federally permitted

dealers or by the State of Delaware. If landings should be reported for

1997, the commercial quota for the State of Delaware will be adjusted

pursuant to Sec. 648.100(d)(2).

The commercial quotas for all coastal states for 1998 are presented

in Table 1. These quota figures are preliminary and will be adjusted

for overages in the 1997 fishing year, as required by

Sec. 648.100(d)(2).

Table 1.--1998 State Summer Flounder Commercial Quotas

----------------------------------------------------------------------------------------------------------------

1998 quota 1998 quota

State Share (%) (pounds) (kg) \1\

----------------------------------------------------------------------------------------------------------------

ME.............................................................. 0.04756 5,284 2,397

NH.............................................................. 0.00046 51 23

MA.............................................................. 6.82046 757,841 343,751

RI.............................................................. 15.68298 1,742,583 790,422

CT.............................................................. 2.25708 250,791 113,757

NY.............................................................. 7.64699 849,680 385,408

NJ.............................................................. 16.72499 1,858,363 842,939

DE.............................................................. 0.01779 \2\ (3,685) (1,671)

MD.............................................................. 2.03910 226,570 102,770

[[Page 66306]]

VA.............................................................. 21.31676 2,368,569 1,074,365

NC.............................................................. 27.44584 3,049,589 1,383,270

-----------------------------------------------

Total....................................................... .............. 11,105,636 5,037,432

----------------------------------------------------------------------------------------------------------------

\1\ Any differences expressed in the conversion of pounds to kilograms are due to rounding.

\2\ Numbers in parentheses are negative.

Scup

The most recent assessment for scup (SAW-25, August 1997) indicates

that F has been above 1.0 for the period 1984-96. SAW-25 examined 1996

total catch and estimated that a 34-percent reduction from that

exploitation level would result in a Total Allowable Catch (TAC) of

7.275 million lb (3.3 million kg) and would likely reduce F to below

1.0. The TAC is allocated to the commercial (78 percent) and

recreational (22 percent) sectors. Then, a discard estimate is deducted

from each TAC to establish the allowed harvest. This rule establishes

for 1998 (1) a coastwide TAC of 7.275 million lb (3.3 million kg), (2)

a commercial TAC of 5.675 million lb (2.6 million kg), (3) a commercial

discard estimate of 1.103 million lb (0.50 million kg), (4) a

commercial quota of 4.572 million lb (2.07 million kg), (5) a

recreational TAC of 1.6 million lb (0.73 million kg), (6) a

recreational discard estimate of 0.048 million lb (0.02 million kg),

and (7) a recreational harvest limit of 1.553 million lb (0.70 million

kg). This rule also implements a 20,000 lb (9,072 kg) commercial trip

limit for the Winter I season, which is to decrease to 1,000 lb (453.6

kg) when 85 percent of the Winter I quota is harvested, and an 8,000 lb

(3628.7 kg) trip limit in Winter II, with no decrease. The commercial

quota represents a 24-percent reduction from the 1997 quota of 6.0

million lb (2.7 million kg). The commercial quota, allocated to the

seasonal periods as specified in the FMP, is shown in Table 2:

Table 2.--Period Allocations of Commercial Scup Quota

----------------------------------------------------------------------------------------------------------------

Quoto allocation

Period Percent TAC \1\ Discards \2\ -------------------------------

(LB) (KG) \3\

----------------------------------------------------------------------------------------------------------------

WINTER I........................ 45.11 2,559,992 497,563 2,062,429 935,502

SUMMER.......................... 38.95 2,210,413 429,619 1,780,794 807,755

WINTER II....................... 15.94 904,595 175,818 728,777 330,568

-------------------------------------------------------------------------------

TOTAL....................... 100.00 5,675,000 1,103,000 4,572,000 2,073,824

----------------------------------------------------------------------------------------------------------------

\1\ Total Allowable Catch, in pounds.

\2\ Discard estimates, in pounds.

\3\ Kilograms are as converted from pounds.

The 1998 commercial quota for the Summer period (1,780,794 lb;

807,755 kg), apportioned among the states according to the percentage

shares specified in Sec. 648.120(d)(3), is presented in Table 3. The

quota figures for both the Winter and Summer periods are preliminary

and will be adjusted for overages in 1997, as required by

Sec. 648.120(d) (5) and (6).

Table 3.--Summer Period (May-October) Commercial Scup Quota Shares

----------------------------------------------------------------------------------------------------------------

1998 allocation

State Share -------------------------------

(percent) (LB) (KG) \1\

----------------------------------------------------------------------------------------------------------------

Maine........................................................... 0.13042 2,322 1,053

New Hampshire................................................... 0.00004 1 0

Massachusetts................................................... 15.49117 275,866 125,131

Rhode Island.................................................... 60.56588 1,078,554 489,224

Connecticut..................................................... 3.39884 60,526 27,454

New York........................................................ 17.05295 303,678 137,746

New Jersey...................................................... 3.14307 55,972 25,388

Delaware........................................................ 0.00000 0 0

Maryland........................................................ 0.01288 229 104

Virginia........................................................ 0.17787 3,167 1,437

North Carolina.................................................. 0.02688 479 217

-----------------------------------------------

Total....................................................... 100.00000 1,780,794 807,755

----------------------------------------------------------------------------------------------------------------

\1\ Kilograms are as converted from pounds and do not add to the converted total due to rounding.

[[Page 66307]]

Section 648.121(b) requires the Regional Administrator to monitor

the Summer period state commercial quotas and determine the date when a

state's commercial quota is harvested. NMFS is required to publish

notification in the Federal Register advising a state and notifying

vessel and dealer permit holders that, effective upon a specific date,

a state's Summer period commercial quota has been harvested and that no

Summer period commercial quota is available for landing scup in that

state for the remainder of the period. The amount of commercial quota

that is allocated for the Summer period to the State of New Hampshire

is 1 lb (less than 1 kg) and to the State of Delaware is 0 lb (0 kg).

Therefore, the Regional Administrator has determined that no commercial

quota is available for landings in those states for the Summer period.

The regulations at Sec. 648.4(b) provide that Federal permit holders

agree, as a condition of their permit, not to land scup in any state

that the Regional Administrator has determined no longer has commercial

quota available. Therefore, effective 0001 hours May 01, 1998, until

2400 hours, October 31, 1998, landings of scup in New Hampshire or

Delaware by vessels holding commercial Federal fisheries permits are

prohibited, unless additional quota becomes available through a quota

transfer and is announced in the Federal Register. Federally permitted

dealers are also advised that they may not purchase scup from Federally

permitted vessels that land in New Hampshire or Delaware for the Summer

period, or until additional quota becomes available through a transfer.

Black Sea Bass

The most recent assessment for black sea bass (SAW-25, August 1997)

estimated that F has generally exceeded 1.0 for the period 1984-96.

SAW-25 examined 1996 total catch and estimated that a 33-percent

reduction in landings from the 1996 level (9.0 million lb; 4.1 million

kg) would be necessary to reduce F below 1.0. As a result, this rule

would implement the following specifications: (1) A commercial quota of

3.025 million lb (1.4 million kg) and (2) a recreational harvest limit

of 3.148 million lb (1.43 million kg). This rule will also increase the

minimum commercial fish size to 10 inches (25.4 cm), consistent with

measures being implemented by the Commission and proposed by the South

Atlantic Fishery Management Council in the Fishery Management Plan for

the Snapper-Grouper Fishery of the South Atlantic Region (Snapper-

Grouper FMP). Additionally, the catch threshold level that would

trigger the minimum mesh size requirement will increase from 100 to

1,000 lb (45.4 to 453.6 kg).

This rule also implements trip limits for all commercial gear types

for each of the four quarterly quotas. In Quarter 1 (Q1), the trip

limit will be 11,000 lb (4,990 kg); in Q2, 7,000 lb (3,175 kg); in Q3,

3,000 lb (1,361 kg), and in Q4, 4,000 lb (1,814 kg). While the trip

limits could, in theory, prevent quarterly closures, the limits impact

only approximately 5 percent of the trips in this fishery. NMFS remains

concerned about the cost of enforcement compared to the effectiveness

of these trip limits. However, no change to the trip limits are made at

this time since the states are implementing these limits for January 1,

1998, as compliance criteria under the Commission requirements. Changes

at this time would result in differing limits for state-permitted and

Federally-permitted vessels, compounding the concerns about the

measure. Such an inconsistency would be confusing to the industry and

would prevent effective enforcement. NMFS recommends continued

oversight of these trip limits to monitor their enforceability, their

impact on the fishery and their effectiveness at achieving the

conservation goals of the FMP. NMFS expects that the Council will

carefully examine the impacts of these trip limits as part of the

annual specification process for 1999.

The 1998 commercial quota, apportioned by quarter according to the

percentage shares specified in Sec. 648.140(d)(1), and the trip limits

associated with those quarters are presented in Table 4:

Table 4.--1998 Black Sea Bass Quarterly Coastwide Quotas and Quarterly Trip Limits

----------------------------------------------------------------------------------------------------------------

Trip limits

Quarter Percent Pounds (kg) \1\ -------------------------------

lbs (kg)

----------------------------------------------------------------------------------------------------------------

1. (Jan-Mar).................... 38.64 2,385,247 1,081,930 11,000 4,990

2. (Apr-Jun).................... 29.26 1,806,220 819,288 7,000 3,175

3. (Jul-Sep).................... 12.33 761,131 345,243 3,000 1,361

4. (Oct-Dec).................... 19.77 1,220,402 553,565 4,000 1,814

-------------------------------------------------------------------------------

Total....................... 100.00 6,173,000 2,800,026

----------------------------------------------------------------------------------------------------------------

\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, Table 4 specified the quarterly coastwide

allocations and trip limits for the commercial black sea bass fishery.

The table erroneously identified Quarter 2 as comprising the months of

April through May. Instead, Quarter 2 comprises the months of April

through June, and the table is corrected to read as such in this final

rule.

This document corrects the language specified in Sec. 648.100(a),

established by the final rule implementing Amendment 7 to the FMP, that

set the target F for summer flounder for 1998 and beyond as F = 0.23

and specified that the allowable levels of fishing in 1996 and 1997 may

not exceed 18,518,830 lb (8.4 million kg), unless such fishing levels

have an associated F of 0.23. The stated management strategy of

Amendments 2 and 7 to the FMP defines overfishing for summer flounder

as fishing in excess of Fmax level. Fmax is a

biological reference point that corresponds to the level of F that

produces the maximum yield per recruit. As a reference point,

Fmax may change based on changes in the summer flounder

stock. Although Fmax corresponded with an F of 0.23 when the

final rules implementing Amendments 2 and 7 to the FMP were developed,

Fmax is currently 0.24. As a result, while F = 0.23 was

Fmax at that time, the section must be corrected to

implement the intent of the Council in Amendments 2 and 7 that the

target is Fmax, and not 0.23. Thus, the final rule,

technical amendment contained in this action changes the wording of the

target F for 1998 and beyond for summer flounder to be the fishing

mortality rate that yields the maximum yield per recruit

(Fmax), rather than a numerical term that varies slightly

over time.

[[Page 66308]]

Comments and Responses

A total of 24 letters from the public, one (1) letter from the

Commonwealth of Massachusetts, Division of Marine Fisheries (MA-DMF),

and one (1) letter from the Commonwealth of Massachusetts, Marine

Fisheries Commission (MA-MFC) were received during the comment period

for this action, which ended on November 17, 1997. Three form letters

were submitted by several individuals. Several of the letters contained

comments on the FMP in general or offered suggestions for future

management that are not within the scope of this action. Only comments

relevant to the proposed specifications that were received by NMFS

prior to the close of business on the date specified as the close of

comments were considered for this rulemaking.

Summer Flounder

Comment: One letter from the public and two form letters signed by

15 people supported a commercial quota of 19 million lb (8.6 million

kg) for the 1998 summer flounder fishery. They noted that this quota

was examined under Option 4 in the 1997 stock assessment (SAW-25)

report.

Response: SAW-25 examined a range of landings projections,

including Option 4, which was examined at the request of industry

participants. Option 4 projected a TAL of 31.7 million lb (14.4 million

kg) and a commercial quota of 19 million lb (8.6 million kg), as noted

by the commenters. This option provides a median F of 0.65 for 1998,

indicating that this option has over 96 percent probability of

resulting in F that will be in excess of Fmax for summer

flounder in 1998. Both the Council and NMFS found that a TAL of this

level does not have a reasonable likelihood of achieving the target F

for 1998 and is not in compliance with the FMP or with NMFS policy,

which is to be cautious in the face of uncertainty.

Comment: One letter from the public and one form letter signed by 8

individuals stated that the 15-percent bycatch provision should be in

addition to the recommended quota, not included within the recommended

amount.

Response: The TAL for summer flounder specified by this rule has a

50-percent probability of achieving F = 0.35. The target F for 1998 is

0.24. The most recent assessment for summer flounder (SAW-25) noted

that F for summer flounder has not yet been reduced below 1.0. As a

consequence, SAW-25 recommended a reduction in the TAL to 13.889

million lb (6.30 million kg). SAW-25 also noted the need to reduce

discard and discard mortality in both the commercial and recreational

fisheries. The provision to include a 15 percent bycatch fishery within

the TAL of 18.518 million lb (8.40 million kg) is both a serious

attempt to address discards, and, in effect, a 15-percent reduction in

the commercial quota allocated to the directed fishery. The bycatch

quota allocation will extend the season and reduce waste due to

discards following the end of the directed fishery. The inclusion of

the 15-percent bycatch provision within the TAL is one of the factors

that provide a reasonable likelihood that the TAL will achieve the F

rate specified in the FMP. To add the 15 percent to the present quota

would merely create additional landings, and hence additional mortality

on the stock, and lessen the likelihood that the TAL will achieve the

target F.

Comment: One comment letter signed by 7 individuals stated that 15

percent of any other catch should be allowed for summer flounder

bycatch, so that scallop, squid, croaker, dogfish and other fisheries

could land a bycatch and not throw the summer flounder overboard. This

summer flounder should not be counted against the quota.

Response: This suggestion would violate several provisions of the

FMP and would undermine the integrity of the commercial quota. The

regulations governing summer flounder at Sec. 648.100(d)(2)

specifically state that all summer flounder landed for sale in a state

shall be applied against that state's annual commercial quota,

regardless of where the summer flounder were harvested. Additionally,

in the EEZ, any fishery participant, regardless of the species

targeted, may land summer flounder for sale provided that the

participant complies with the requirements of the FMP, including, but

not limited to, the possession of a vessel moratorium permit. Most

states also have vessel permit requirements.

Comment: The MA-DMF and MA-MFC question whether a 15-percent

bycatch provision will result in a reduction in discards and waste

sufficient to compensate for the fact that the adopted TAL is 4.63

million lb (2.1 million kg) in excess of a TAL of 13.889 million lb

(6.30 million kg), the level specified by SAW-25 as having a 50-percent

probability of achieving F 0.24 in 1998.

Response: The 15-percent bycatch provision is not the only measure

that increases the likelihood that the TAL of 18.518 million lb (8.4

million kg) will achieve Fmax in 1998. Anticipated

deductions due to overages in the 1997 fishing year will also increase

the probability of achieving Fmax. Based on commercial

landings to date, there will be an estimated quota overage in 1997 of

273,156 lb (123,901 kg) (3.3 percent) if there are no further late

reports during 1997 and all states are closed with no additional

overages. On June 3, 1998, the measure requiring a minimum mesh size

throughout the net approved as part of Amendment 10 will become

effective thereby further reducing F on sublegal fish.

SAW-25 notes that, in the retrospective analysis of the summer

flounder virtual population analysis (VPA) for terminal catch years

1990-1996, the pattern of estimation of F for 1994-1995 alters the

pattern noted in the last assessment. The last assessment noted that F

was underestimated in the terminal catch years 1991-1993. SAW-25

concluded that the reversal in terminal year F estimates may be due to

improved accuracy of catch estimates in 1995 and 1996, more accurate

indices of stock size due to revised aging, and improved monitoring and

estimation of discards. NMFS agrees that there have been substantive

improvements in quota monitoring and prevention of quota overages over

the past year. Since there is no reason to expect that these factors

will change, this pattern could likely hold for the 1997 stock

estimates. A greater stock size in 1997 would increase the projected

stock size in 1998, which means more fish being available for harvest

at a given F. This, in turn, increases the probability that the

proposed TAL of 18.518 million lb (8.4 million kg) would achieve

Fmax in 1998.

Scup

Comment: One comment letter signed by 7 individuals states that

scup landings have already been reduced by the 5.5 inch (14.0 cm) mesh

size requirement in summer flounder and by the 6 inch (15.2 cm) mesh

size requirement in the multispecies fisheries, and therefore, it is

wrong that these scup, when caught in these nets, must be discarded.

Response: Any vessel fishing with a net that meets or exceeds the

4.5 inch (11.4 cm) diamond minimum mesh requirement for the scup

fishery and is issued a valid scup moratorium permit may retain all

scup of legal size. Other provisions may limit fishing activity, for

instance, if landings are prohibited due to quota attainment. Data do

not indicate that scup landings have decreased due to the 1993

(Federal) implementation of the summer flounder minimum mesh size.

Comment: MA-DMF and MA-MFC comment that the minimum mesh size

[[Page 66309]]

should be required throughout the net, so that the scup requirement is

consistent with the summer flounder requirement in Amendment 10.

Response: Amendment 8 to the FMP, which implemented comprehensive

management measures for the scup fishery, authorizes the Council to

recommend to the Regional Administrator measures necessary to assure

that the specified exploitation rate will not be exceeded. Among the

measures the Council may recommend is a minimum mesh size. However,

this mesh may be applied to the codend of the net only. There is no

mechanism in the scup regulations by which the Council, or NMFS, could

implement mesh throughout the net for scup. Such a mechanism would have

to be established through an amendment to the FMP.

Comment: MA-DMF and MA-MFC commented on concerns expressed in SAW-

25 concerning the inadequacy of the input data. Specifically,

exploratory VPA estimates of fishing mortality in 1996 were used to set

a TAC for 1998, an approach which these agencies feel is inappropriate.

The comments state it is unjustifiable to cut landings when the target

F may have been achieved in 1997. MA-MFC urged a ``different approach''

to management other than just cutting landings. Further, the agencies

maintain that discard levels of scup are high in the offshore small

mesh (squid) fishery and that measures must be implemented to reduce

them prior to quota reductions.

Response: SAW-25 utilized the best available data to complete an

assessment of the scup stock. There were concerns about the data that

SAW-25 noted, and NMFS believes that these concerns should not

logically be interpreted that landings cannot be reduced. Although the

agency is concerned about the issue of discards, SAW-25 notes that

there are serious limitations in the data used to estimate and

characterize commercial discards and landings and that there is not an

obvious solution. The commenter did not elaborate what ``different

approach'' to management might be appropriate for this fishery, so NMFS

cannot respond further.

Black Sea Bass

Comment: One comment letter signed by 7 individuals states that

black sea bass landings have already been reduced by the 5.5 inch (14.0

cm) mesh requirement in summer flounder and by the 6 inch (15.2 cm)

mesh requirement in the multispecies fisheries, and, therefore, it is

wrong that these fish, when caught in that net, must be discarded.

Response: Any vessel fishing with a net that meets or exceeds the

3.5 inch (8.9 cm) diamond or the 4.0 inch (10.2 cm) square minimum mesh

requirement for the black sea bass fishery and being issued a valid

black sea bass moratorium permit may retain all black sea bass of legal

size. Other provisions may limit fishing activity, for instance if

landings are prohibited due to quota attainment. Data do not indicate

that black sea bass landings have decreased due to the 1993 (Federal)

implementation of the summer flounder minimum mesh size.

Comment: One member of the public and the MA-MFC advocated a 12-

inch (30.5 cm) minimum fish size for black sea bass, instead of the 10-

inch (25.4 cm) minimum fish size.

Response: A 12-inch (30.5 cm) minimum fish size for black sea bass

would certainly compound any benefits to the resource and stock

rebuilding, and NMFS commends any state, such as Massachusetts, that

implements that minimum size. However, both the Commission and the

South Atlantic Fisheries Management Council (by way of the Snapper/

Grouper FMP) voted to increase the minimum black sea bass size to 10

inches (25.4 cm). There are benefits associated with consistency for

both industry participants and law enforcement. Additionally, length

frequency data from the NMFS weighout data (Maine to Virginia) and the

North Carolina winter trawl fishery data indicate that a 12-inch (30.5

cm) minimum fish size would decrease dramatically the amount of fish

that could be legally landed. This decrease in landings would increase

discards unless gear restrictions were also modified. Gear

modifications were not considered by the Council.

Comment: One member of the public supports the 1,000 lb (454 kg)

threshold for triggering minimum mesh size in the black sea bass

fishery because it will require the directed black sea bass fishery to

use appropriate gear and still allow an incidental catch to be

harvested from other fisheries.

Response: NMFS agrees.

Comment: One member of the public supports black sea bass trip

limits as a method to extend a quota. MA-DMF and MA-MFC feel that the

trip limit for the second quarter is too high and advocate a 2,000 lb

(907.2 kg) trip limit instead.

Response: NMFS agrees that trip limits could, in theory, extend a

quota and prevent quarterly closures. However, NMFS remains concerned

about the adopted limits since they impact only approximately 5 percent

of the trips in this fishery. NMFS' primary concern focuses on the cost

of enforcement compared to the effectiveness of these trip limits. NMFS

determined to make no changes to the trip limits at this time since the

states are implementing these limits by January 1, 1998, as Commission

compliance criteria. Changes at this time would result in differing

limits for state and Federal vessels, compounding agency enforcement

concerns.

Classification

These proposed specifications have been determined to be non-

significant for purposes of E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that the proposed rule would not have

a significant economic impact on a substantial number of small

entities. The reasons for this certification are based on an assessment

of this action under NMFS's long standing Regulatory Flexibility Act

guidelines discussed in the proposed rule. Although not required to do

so, because a full examination of the economic impact of this rule is

important, NMFS prepared an IRFA. NMFS received no comments on the IRFA

or the determination that would result in a change to the finding of no

significant impact. Editorial corrections were made to the IRFA at the

request of Council staff. Therefore, the IRFA is adopted as final with

these corrections.

NMFS considered several alternatives in the development of the

specifications contained in this rule. Two other alternatives were

considered for the 1998 summer flounder specifications: a TAL of 13.889

million lb (6.30 million kg), and a TAL 22.046 million lb (10.00

million kg). For the first alternative, landings would be substantially

reduced in 1998 without significant long-term benefit to either the

commercial or recreational fishing industries or the stock. The second

non-preferred alternative (22.046 million lb/10 million kg TAL)

represents an increase of almost 19 percent from the 1997 level. Based

on stochastic projections, this alternative would have a 1 percent

probability of achieving the target F of 0.24 in 1998. Thus, while this

alternative would minimize significant economic impacts on small

entities, it would not accomplish the stock rebuilding objectives of

the FMP.

For scup, two alternatives, other than the preferred alternative,

were considered for the 1998 specifications

[[Page 66310]]

using varying discard estimates: commercial quotas of 3.626 million lb

(1.64 million kg) and 5.675 million lb (2.57 million kg). The

recreational harvest limit was 1.553 million lb (0.70 million kg) for

each alternative. The first alternative assigns 2.049 million lb (0.929

million kg) to the discard estimate, and would set the coastwide

commercial quota at 3.626 million lb (1.64 million kg). This

alternative implies that the effects of the mesh and minimum size

regulations are minimal or nonexistent, and assigns a larger percentage

of the TAC to discards. To minimize significant economic impacts on

small entities, the Council did not adopt this alternative. Conversely,

the second alternative sets a discard level of 0 lb (0 kg) and a

commercial quota of 5.675 million lb (2.57 million kg). This assumption

is unrealistic given the nature of the scup fishery. As such, this

alternative would not accomplish the stock rebuilding objectives of the

FMP.

In black sea bass, two alternative TALs were considered. The first

is a TAL of 4.519 million lb (2.05 million kg). This alternative would

accelerate stock rebuilding, but at the expense of the commercial and

recreational fishing industries. The second alternative considered

would set the TAL equal to the total landings for 1996. This landing

limit has no probability of achieving the target in 1998 set forth in

Amendment 9 to the FMP. Therefore, it would not accomplish the stock

rebuilding objectives of the FMP. The Council also considered other

management measures for black sea bass. For further information on

these alternatives, please consult the FRFA. Copies of the FRFA are

available (see ADDRESSES).

This action adopts final 1998 specifications for the summer

flounder, scup, and black sea bass fisheries and implements associated

management measures. Generally, 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 year-long

quotas which are used to close the fishery when a quota is harvested.

Closures must be taken immediately to conserve fishery resources. The

minimum fish size requirement for black sea bass implements a measure

for Federal permit holders that has been adopted by the Commission as a

compliance criteria with an effective date of January 1, 1998. Since

this measure has already been adopted by the states for an effective

date of January 1, 1998, it is not practical to delay the effectiveness

beyond that. The change in the possession limit that triggers the

minimum net mesh size requirement relieves a restriction by allowing a

bycatch fishery to be prosecuted that would otherwise be restricted by

the requirement to change to a larger mesh at a lower threshold.

Accordingly, the Assistant Administrator for Fisheries, NOAA (AA),

under 5 U.S.C. 553(d)(1), waives the 30-day delayed effectiveness

period with respect to such provisions. For the technical regulatory

change, the AA finds good cause to waive prior notice and opportunity

for public comment under 5 U.S.C. 553(b)(B). The technical change

corrects the regulation's wording of the target F for summer flounder

for 1998 and beyond to reflect accurately the stated management

strategy of the FMP which defines overfishing for summer flounder as

fishing in excess of Fmax level. As such, the AA finds that

prior notice and comment are unnecessary. Further, there is no

requirement to delay the effective date of this technical change under

5 U.S.C. 553(d) as it is not a substantive rule.

List of Subjects in 50 CFR Part 648

Fisheries, Reporting and record keeping requirements.

Dated: December 12, 1997.

David L. Evans,

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. 648.14, paragraph (u)(1) is revised to read as follows:

Sec. 648.14 Prohibitions.

* * * * *

(u) * * *

(1) Possess 1,000 lb (453.6 kg) or more of black sea bass, unless

the vessel meets the minimum mesh requirement specified in Sec.

648.144(a).

* * * * *

3. In Sec. 648.100, paragraph (a) is revised to read as follows:

Sec. 648.100 Catch quotas and other restrictions.

(a) Annual review. The Summer Flounder Monitoring Committee shall

review the following data on or before August 15 of each year to

determine the allowable levels of fishing and other restrictions

necessary to achieve a fishing mortality rate (F) of 0.30 in 1997, and

the F that produces the maximum yield per recruit (Fmax) in

1998 and thereafter, provided the allowable levels of fishing in 1997

may not exceed 18,518,830 lb (8,400 mt), unless such fishing levels

have an associated F of Fmax: Commercial and recreational

catch data; current estimates of fishing mortality; stock status;

recent estimates of recruitment; virtual population analysis results;

levels of noncompliance by fishermen or individual states; impact of

size/mesh regulations; sea sampling and winter trawl survey data or, if

sea sampling data are unavailable, length frequency information from

the winter trawl survey and mesh selectivity analyses; impact of gear

other than otter trawls on the mortality of summer flounder; and any

other relevant information.

* * * * *

4. In Sec. 648.143, the first sentence of paragraph (a) is revised

to read as follows:

Sec. 648.143 Minimum sizes.

(a) The minimum size for black sea bass is 10 inches (25.4 cm)

total length for all vessels issued a moratorium permit under

Sec. 648.4(a)(7) which fish for or retain black sea bass in or from

U.S. waters of the western Atlantic Ocean from 35 deg.15.3' N. Lat.,

the latitude of Cape Hatteras Light, North Carolina, northward to the

U.S.-Canada border. * * *

* * * * *

5. In Sec. 648.144, paragraph (a)(1)(i) is revised to read as

follows:

Sec. 648.144 Gear restrictions.

(a) * * *

(1) * * * (i) Otter trawlers whose owners are issued a black sea

bass moratorium permit and that land or possess 1,000 lb or more (453.6

kg or more) of black sea bass per trip, must fish with nets that have a

minimum mesh size of 4.0 inches (10.2 cm) diamond or 3.5 inches (8.9

cm) square (inside measure) mesh applied throughout the codend for at

least 75 continuous meshes forward of the terminus of the net, or, for

codends with less 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 center of the head rope, excluding any turtle excluder

device extension.

* * * * *

[FR Doc. 97-33076 Filed 12-15-97; 4:14 pm]

BILLING CODE 3510-22-P