[Federal Register Volume 62, Number 243 (Thursday, December 18, 1997)]
[Rules and Regulations]
[Pages 66304-66310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33076]


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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.

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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 (F<INF>max</INF>), 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 F<INF>max</INF>. 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                             
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                                                                                    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  
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\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                             
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                                                                                         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 
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\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 F<INF>max</INF> level. F<INF>max</INF> is a 
biological reference point that corresponds to the level of F that 
produces the maximum yield per recruit. As a reference point, 
F<INF>max</INF> may change based on changes in the summer flounder 
stock. Although F<INF>max</INF> corresponded with an F of 0.23 when the 
final rules implementing Amendments 2 and 7 to the FMP were developed, 
F<INF>max</INF> is currently 0.24. As a result, while F = 0.23 was 
F<INF>max</INF> at that time, the section must be corrected to 
implement the intent of the Council in Amendments 2 and 7 that the 
target is F<INF>max</INF>, 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 
(F<INF>max</INF>), 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 F<INF>max</INF> 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 F<INF>max</INF> in 1998. Anticipated 
deductions due to overages in the 1997 fishing year will also increase 
the probability of achieving F<INF>max</INF>. 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 
F<INF>max</INF> 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 F<INF>max</INF> 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 (F<INF>max</INF>) 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 F<INF>max</INF>: 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