[Federal Register Volume 62, Number 45 (Friday, March 7, 1997)]
[Rules and Regulations]
[Pages 10473-10478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5698]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 961210346-7035-02; I.D. 120596A]
RIN 0648-XX76


Summer Flounder Fishery; Final Specifications for 1997; 
Adjustment to 1997 State Quotas; Commercial Quota Harvested for 
Delaware

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

ACTION: Final specifications for the 1997 summer flounder fishery and 
adjustments to state commercial quotas.

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SUMMARY: NMFS issues the final specifications for the 1997 summer 
flounder fishery that include commercial catch quotas and an increase 
in commercial minimum fish size, makes adjustments to the commercial 
quota for the 1997 summer flounder fishery as a result of overages in 
the 1996 fishing year and, as a consequence of these overages, 
announces that the summer flounder quota available to the State of 
Delaware for 1997 has been harvested. The intent of this document is to 
comply with implementing regulations for the summer flounder fishery 
that require NMFS to publish measures for the upcoming fishing year 
that will prevent overfishing of this species, require overages in any 
state to be deducted from that state's commercial quota for the 
following year, require publication of a notice to advise the State of 
Delaware that its quota has been harvested, and to advise vessel and 
dealer permit holders that no commercial quota is available for landing 
summer flounder in Delaware.

EFFECTIVE DATE: March 4, 1997 through December 31, 1997, except for 
Sec. 648.103(a) which will be effective April 7, 1997.

ADDRESSES: Copies of the Environmental Assessment and supporting 
documents used by the Monitoring Committee are available from: 
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, 
Federal Building, 300 S. New Street, Dover, DE 19901-6790.

FOR FURTHER INFORMATION CONTACT: Dana Hartley, Fishery Management 
Specialist, 508-281-9226.

SUPPLEMENTARY INFORMATION: The Fishery Management Plan for the Summer 
Flounder Fishery (FMP) was developed jointly by the Atlantic States 
Marine Fisheries Commission (Commission) and the Mid-Atlantic Fishery 
Management Council (Council) in consultation with the New England and 
South Atlantic Fishery Management Councils. The management unit for the 
FMP is summer flounder (Paralichthys dentatus) in U.S. waters of the 
Atlantic Ocean from the southern border of North Carolina northward to 
the Canadian border. Implementing regulations for the fishery are found 
at 50 CFR part 648, subparts A and G.
    Section 648.100(a) of the regulations implementing the FMP 
specifies the process for setting annual management measures in order 
to achieve the fishing mortality (Ftgt) rates specified in the 
FMP. Under Amendment 7 to the FMP, the schedule of F rates sets a 
target fishing mortality rate of 0.41 in 1996, 0.3 in 1997, and 0.23 in 
1998 and thereafter, provided the allowable levels of fishing in 1996 
and 1997 may not exceed 18.51 million lb (8.4 million kg), unless the 
fishing mortality rate (F) of 0.23 is met.
    Pursuant to Sec. 648.100, the Regional Administrator, Northeast 
Region, NMFS, implements certain measures for the fishing year to 
ensure achievement of the appropriate fishing mortality rate.

[[Page 10474]]

With the exception of the proposed increase in codend mesh 
requirements, the measures remain unchanged from the proposed 1997 
specifications that were published in the Federal Register on December 
18, 1996 (61 FR 66646). These measures include: (1) A coastwide harvest 
limit of 18.51 million lb (8.40 million kg); (2) a coastwide commercial 
quota of 11.11 million lb (5.04 million kg); (3) a coastwide 
recreational harvest limit of 7.41 million lb (3.36 million kg); and 
(4) an increase in the minimum commercial fish size from 13 inches 
(33.0-cm) to 14 inches (35.6 cm).
    Detailed background information regarding the development of this 
rule was provided in the proposed specifications for the 1997 summer 
flounder fishery and is not repeated here.
    Section 648.100(d)(2) provides that all landings for sale in a 
state shall be applied against that state's annual commercial quota. 
Any landings in excess of the state's quota will be deducted from that 
state's annual quota for the following year. Based on dealer reports 
and other information, NMFS has determined that the States of Maine, 
Massachusetts, Rhode Island, Connecticut, New York, New Jersey, 
Delaware, Virginia, and North Carolina have exceeded their 1996 quotas. 
The remaining States of New Hampshire and Maryland did not exceed their 
1996 quotas. A complete summary of 1996 quota overages is shown in 
Table 1.
    After the proposed 1997 specifications were published, a document 
was published adjusting the State of Delaware's 1996 quota based on 
data that indicated additional landings in that State in 1995 (61 FR 
67497, December 23, 1996). Consequently, Delaware's 1996 commercial 
quota was adjusted to reflect those landings. The resulting quota was 
278 lb (126 kg). Landings in 1996 were well in excess of that number, 
and the resulting overage leaves no quota available for 1997.

Commercial Quota

    The coastwide commercial quota is allocated among the states based 
on historical catch shares specified in the regulations. Table 2 
presents the 1997 commercial quota (11,111,298 lb; 5,040,000 kg) 
apportioned among the states according to the percentage shares 
specified in Sec. 648.100(d)(1), and the resulting quotas after 
deductions were made for 1996 overages.

                                              Table 1.--1996 State Commercial Quotas, Landings and Overages                                             
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                                                                    1996 Quota                     1996 Landings                   1996 Overages        
                          State                          -----------------------------------------------------------------------------------------------
                                                                lb           (kg) \1\           lb             (kg)             lb             (kg)     
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME......................................................           5,284           1,062           8,226           3,731           2,942           1,334
NH......................................................              51              23               0               0               0               0
MA......................................................         752,092         328,350         780,297         353,940          28,205          12,794
RI......................................................       1,620,342         715,390       1,663,520         754,560          43,178          19,585
CT......................................................         250,791         113,757         278,776         126,451          27,985          12,694
NY......................................................         844,976         345,723         927,763         420,826          82,787          37,552
NJ......................................................       1,858,363         621,996       2,345,460       1,063,883         487,097         220,943
DE......................................................             278             126           7,153           3,245           6,875           3,118
MD......................................................         226,570         102,770         225,051         102,081               0               0
VA \2\..................................................       2,200,681         962,062       2,280,457       1,034,398          79,776          36,186
NC......................................................       2,451,068       1,111,786       3,688,217       1,672,947       1,237,149         561,161
                                                         -----------------------------------------------------------------------------------------------
    Totals..............................................      10,210,496       4,631,403      12,204,920       5,536,059       1,995,994         905,368
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\1\ Kilograms are as converted from pounds, and may not necessarily add due to rounding.                                                                
\2\ Includes preliminary inshore landings data provided by the Commonwealth of Virginia.                                                                


                      Table 2.--1997 State Commercial Quotas, as Adjusted for 1996 Overages                     
----------------------------------------------------------------------------------------------------------------
                                                        Initial 1997 quota              Adjusted 1997 quota     
              State                Share percent ---------------------------------------------------------------
                                                        lb           (kg) \1\           lb             (kg)     
----------------------------------------------------------------------------------------------------------------
ME..............................         0.04756           5,284           2,397           2,342           1,062
NH..............................         0.00046              51              23              51              23
MA..............................         6.82046        757,8413          43,751         729,636         330,957
RI..............................        15.68298       1,742,583         790,422       1,699,405         770,837
CT..............................         2.25708         250,791         113,757         222,806         101,063
NY..............................         7.64699         849,680         385,408         766,893         347,857
NJ..............................        16.72499       1,858,363         842,939       1,371,266         621,996
DE..............................         0.01779           1,977             897     \2\ (4,898)         (2,222)
MD..............................         2.03910         226,570         102,770         226,570         102,770
VA..............................        21.31676       2,368,569       1,074,365       2,288,793       1,038,179
NC..............................        27.44584       3,049,589       1,383,270       1,812,440         822,109
                                                 ---------------------------------------------------------------
    Totals......................  ..............      11,111,298       5,040,000       9,115,304       4,134,632
----------------------------------------------------------------------------------------------------------------
\1\ Kilograms are as converted from pounds, and may not necessarily add due to rounding.                        
\2\ Numbers in parentheses are negative.                                                                        

    Recreational catch data for 1996 are not yet available. The Council 
and Commission will consider modifications to the recreational 
possession limit and recreational season after a review of that 
information.

Changes From the Proposed Rule

    In response to public, state agency, and Council comments, NMFS has 
decided not to implement the proposed

[[Page 10475]]

measure that would have increased the present minimum codend mesh 
regulation of 5.5-inch diamond (14.0-cm) to 6-inch (15.2-cm) diamond. 
The measure was opposed by a majority of the commenters. An alternative 
measure is proposed in Amendment 10 to the FMP to require 5.5-inch 
(14.0-cm) mesh throughout the net. This amendment is under development 
by the Council, and the Council has requested implementation of this 
measure through the new interim measure provision of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). 
Action on that request is pending.
    In the meantime, the current net restrictions coupled with the 
increase in commercial minimum fish size will provide some reductions 
in F. During public participation at the Council meetings, and in the 
comments received on the proposed rule, industry members made the point 
that net violations (the use of liners and tying off the codend) have 
occurred because fisherman felt that the existing mesh regulation (5.5-
inch (14.0-cm) codend) was too large to retain sufficiently 13-inch 
(33.0-cm) fish. Increasing the minimum fish size should reduce the 
incentive for these violations, as 13-inch (33.0-cm) fish cannot be 
retained.
    Lastly, the Council's proposal to require 5.5-inch (14.0-cm) mesh 
throughout the net, if approved, will require a considerable financial 
investment on the part of the industry. Although many industry members 
that fish for summer flounder in the northern part of its range may 
already own 6-inch (15.2-cm) codends, commenters indicated that the 
limited availability of 6-inch (15.2-cm) codends and expense of meeting 
this requirement for Federal permit holders in other areas would 
present some problems. Industry members have also stated in their 
comments that because the measure to require 5.5-inch (14.0-cm) mesh 
throughout the net has been discussed so much at Commission and Council 
meetings, many fishermen have been gearing up for this change. 
Requiring an increase to a 6-inch (15.2-cm) codend at this time would 
only compound the expense of gear modifications.

Comments and Responses

    Comments regarding the 1997 proposed annual specifications for 
summer flounder were received from 24 organizations or individuals. 
These included Congressional representatives, industry members and 
associations, state agencies, various individuals, and the Mid-Atlantic 
Fishery Management Council. Three commenters approved of all the 
proposed measures. Ten commenters indicated opposition to the proposed 
increase in the codend mesh to 6 inches (15.2-cm) but approved of the 
proposed increase in minimum fish size and supported or accepted the 
coastwide harvest limit and the commercial quota. Two commenters 
expressed disapproval for the proposed increase in the codend mesh, as 
well as the commercial quota, but supported the proposed increase in 
commercial minimum fish size. Three commenters expressed opposition to 
the proposed increases in commercial minimum fish size, and codend 
mesh, but supported or accepted the proposed commercial quota. One 
commenter expressed concern and opposition to the proposed 1997 
commercial quota because of the impacts after the deduction of quota 
overages from the previous year. Four commenters opposed the 1997 
commercial quota based on indications of stock biomass strength early 
in January 1997. They also were dissatisfied with the rationale used to 
decide that the measures would not significantly impact a substantial 
number of small entities. One commenter, representing a fisheries 
association, opposed all measures. Several letters offered suggestions 
for future management that are not within the scope of this final rule.
    Comment 1. A vessel captain, a former commercial fisherman, and a 
U.S. Congressman wrote to extend their support for all measures. All 
expressed concern about the overages in the commercial fishery and 
urged NMFS to approve the proposed specifications. One commenter noted 
that, although there may be a lot of political pressure to the 
contrary, it is essential to ``finally regulate a fishing industry that 
is on the verge of self destruction.''
    Response 1. NMFS agrees that regulation is needed to rebuild the 
summer flounder resource, but in establishing such measures, must 
balance the benefits of conservation with the impact on industry. For 
the reasons outlined in the preamble, NMFS has determined not to 
implement the codend mesh increase at this time.
    Comment 2. Sixteen of the comments were in opposition to the 
proposed increase in codend mesh from the present 5.5 inches (14.0-cm) 
to 6 inches (15.2-cm). Of these, 14 were in favor of replacing this 
measure with one that would require 5.5-inch (14.0-cm) mesh throughout 
the net. This measure has been proposed in an upcoming plan amendment 
(Amendment 10) and appears to be widely supported by the Council, the 
Commission, and industry members. The Council seeks earlier 
implementation of this measure through an interim management measure 
procedure contained in the Magnuson-Stevens Act. The Council and a 
North Carolina fisheries association would also like to see the option 
for a 6-inch (15.2-cm) codend as part of this pending amendment to aid 
industry members who already own them.
    Many industry members commented that because the measure to go to 
5.5-inch (14.0-cm) mesh throughout the net has been discussed and 
supported by the Council and Commission, many industry members have 
made an initial investment in constructing nets that meet these 
specifications. Further, a marine supply distributor noted that the 
proposed measure for 6-inch (15.2-cm) codend mesh would present some 
problems in his industry and for the manufacturer. He stated that the 
polyethylene used to construct codends requires 3 or 4 months to 
manufacture. He feels that it may be difficult to acquire 6-inch (15.2-
cm) mesh if the proposed measure is approved. He stressed that the time 
it takes to meet these proposed gear changes should be considered in 
the management process.
    The Connecticut Department of Environmental Protection and a 
Council member stated that the proposed increase in the codend would 
have significant negative impacts on Federal permit holders who fish 
primarily in state waters, especially for those dependent upon the 
winter flounder fishery. Similarly, Federal permit holders from the 
more southern states within the management unit emphasized that raising 
the minimum mesh size for summer flounder would be a de facto increase 
in the minimum mesh requirement for the Mid-Atlantic groundfish 
fishery. The regulations in the Fishery Management Plan for the 
Northeast Multispecies Fishery declare that the minimum mesh 
requirement for vessels fishing in the Mid-Atlantic regulated mesh area 
(the area bounded on the east by a line running from the shoreline 
along 72 deg.30' west long.) is the mesh requirement specified in the 
summer flounder regulations. Meeting this required change would be a 
considerable expense for the industry. Many of the commenters stressed 
the need for net retention studies.
    Response 2. NMFS intends to pursue the possibility of implementing 
the measure for 5.5-inch (14.0-cm) mesh throughout the net via the 
interim management measure process. Because this process was only 
recently made available through the Magnuson Stevens Act, guidelines 
governing its use are presently being developed. Similarly, it

[[Page 10476]]

is unclear until the guidelines are promulgated how much time it will 
take to implement this measure through the interim management measure 
process. NMFS agrees that there appears to be wide support for 5.5-inch 
(14.0-cm) mesh throughout the net, but this measure has yet to be taken 
to public hearing.
    NMFS is aware that the codend mesh requirement for the Mid-Atlantic 
groundfish fishery is dependent upon the mesh requirement set for the 
summer flounder fishery and acknowledges some costs would have 
accompanied the proposed increase in codend mesh for both fisheries. 
Similarly, depending upon the state requirement for minimum mesh in the 
multispecies winter flounder fishery (state waters exemption program), 
Federal permit holders who fish primarily in state waters for winter 
flounder would have to purchase new codends to meet the proposed 
increase in minimum codend mesh for the summer flounder fishery.
    NMFS makes every effort to anticipate the costs of proposed 
measures to the industry. In addition, proposed measures are subject to 
public hearing and a comment period so that concerns such as these can 
be expressed and addressed. For the reasons presented by commenters 
here and addressed in the preamble, NMFS has determined not to 
implement the proposed increase in codend mesh.
    NMFS is currently unaware of any ongoing summer flounder net 
retention studies and acknowledges the need for these studies for many 
of the regulated fisheries. NMFS funds are limited and unless monies 
can be made available, NMFS must rely on the industry and other sources 
to procure accurate catch information associated with mesh size.
    Comment 3. Four commenters opposed the proposed increase in 
commercial minimum fish size. Reasons for this opposition centered 
around the issue of increased discard mortality. An industry advisor to 
the Council used discard rates given in Amendment 2 to the FMP for 
summer flounder to illustrate this. Those that oppose the increase 
would rather see 13-inch (33.0-cm) fish count toward the quota rather 
than toward discards.
    Response 3. Amendment 2 to the FMP for summer flounder implemented 
a 5.5-inch (14.0-cm) codend mesh and a 13-inch (33.0-cm) total length 
minimum fish size for the commercial fishery. At the time of Amendment 
2, these measures were intended to target 14-inch (35.6-cm) fish. 
However, the Council and Commission recognized that a 5.5-inch (14.0-
cm) mesh would retain some 13-inch (33.0-cm) fish and decided that 
allowing fishermen to land 13-inch (33.0-cm) fish would be less 
wasteful. Unfortunately, this allowance has resulted in the unintended 
targeting of 13-inch (33.0-cm) fish. Mortality has increased for fish 
of this size well beyond the mortality associated with an incidental 
take of this size fish.
    Many industry members have indicated that the current minimum 
codend mesh is too large to target sufficiently 13-inch (33.0-cm) fish. 
They have also indicated that raising the minimum mesh size would 
discourage cheating and lessen the impacts and discard mortality on 
still smaller fish captured in nets that are fished with liners or with 
codends that have been tied off. NMFS agrees that, initially, it would 
appear that discard values will increase under the proposed 
specifications. However, successful regulations require the support of 
those subject to them. NMFS has received many indications that the 
previous minimum fish size has not worked to conserve 13-inch (33.0-cm) 
summer flounder. NMFS anticipates improved compliance with net 
regulations because the increase in minimum size will act as a 
disincentive to target 13-inch (33.0-cm) fish with illegal mesh or 
other net modifications (such as tying off the net) since these fish 
cannot be retained. Thus, increasing the minimum fish size will serve 
to reduce mortality on younger fish.
    Comment 4. Fifteen commenters supported the proposed increase in 
commercial minimum fish size. They felt that the measure would 
contribute toward conservation of younger fish and would eliminate the 
incentive for net violations (tying off the codend or using liners).
    Response 4. For the reasons outlined in the response above and 
presented in the preamble, NMFS agrees with this comment.
    Comment 5. Seven commenters felt that the proposed commercial quota 
is too low. They suggest alternate commercial quotas that range from 
18.51 million lb (8.4 million kg) to 30 million lb (13.6 million kg) 
and stress the economic hardships associated with the proposed quota 
level. Many participants believe that biomass has been underrepresented 
in the stock assessments and believe that NMFS is being overly cautious 
at the expense of the industry. They cite various factors that may have 
contributed to an inaccurate assessment, including aging discrepancies, 
data collection problems, and cyclical environmental events.
    Response 5. Scientists have noted the increase in biomass. This 
increase was forecast in their projections. NMFS expects that 
harvesters would also note the increase in biomass, and NMFS commits 
substantial resources to compiling observations from industry members. 
These observations, through biological sampling, interviews with 
captains, vessel logbooks, and other methods, contribute toward stock 
assessments. Although biomass has increased, the age structure of the 
stock remains compressed in that it only contains the younger age 
classes. NMFS, the Council, and Commission are committed to the 
conservation of these younger age classes to improve the long-term 
viability of the stock and ultimately the industry.
    The 1997 commercial quota for summer flounder is set at the upper 
limit authorized by the FMP, which does not allow the commercial quota 
to exceed this ``cap'' unless the fishing mortality rate of 0.23 is 
met. The target fishing mortality rate for 1997, as part of the 
rebuilding schedule implemented under the FMP, is 0.30. In every year 
since 1993, the fishing mortality rate has exceeded the goal of the 
rebuilding schedule. Therefore, increasing the quota is not allowed 
under the regulations implementing the FMP and is not advised based on 
the best available scientific information.
    Comment 6. A U.S. Senator from North Carolina noted that the summer 
flounder fishery is extremely valuable to the State and its residents 
and noted that, although the summer flounder stock is at 80 percent of 
its historic peak level, the 1997 North Carolina quota will be the 
lowest in history. The Senator also expressed concern about the impact 
that overage deductions will have on the State.
    Response 6. The 22nd Stock Assessment Workshop (SAW) reported that 
the stock is at the medium level of historical abundance. The coastwide 
harvest limit and commercial quota level are set at the FMP's ``cap.'' 
The process of overage deductions for landings that exceed the quota in 
any state is also outlined in the regulations. The Council recommended 
the commercial quota level in an attempt to balance stock conservation 
with economic impact. NMFS acknowledges that overharvest in prior years 
will have an impact on the quota level for North Carolina in 1997 and 
advises that the State consider management measures used by other 
states to prolong the harvest of the quota and support the price per 
pound paid to fishermen. For instance, states with a small share 
percentage of the commercial quota use trip limit systems that 
effectively extend their quota, spread catches over various

[[Page 10477]]

fleet sectors, and maximize ex-vessel and market values.
    Comment 7. Several commenters raised the issue that the proposed 
increase in minimum fish size and codend mesh would force longer tow 
times because these measures would result in the loss of 30 percent of 
14-inch (35.6-cm) fish. This increased effort would, in turn, raise 
fuel and crew costs.
    Response 7. NMFS has determined not to implement the mesh increase. 
Therefore, decreases in relative catch will be less than anticipated. 
Raising the minimum fish size may increase effort but because of this 
measure, landing larger, more valuable fish may offset these costs.
    Comment 8. A commenter from North Carolina contested the statement 
that larger fish bring a higher price and, therefore, offset any 
increased costs associated with the proposed rule. The commenter also 
contended that this conclusion of the impacts of this measure on small 
businesses is unsatisfactory.
    Response 8. Data supplied by both the commenter and NMFS weighout 
database indicate that summer flounder prices tend to increase with the 
size of the fish landed. Weighout data in 1993 indicate prices ranged 
from $1.10 per lb for small summer flounder to $2.41 per lb for jumbos. 
Preliminary figures for 1997 indicate that nearly 90 percent of the 
summer flounder landed in North Carolina were in the medium and large 
size ranges. Medium fish average between 14 and 16.1 inches (35.6-40.8 
cm) and large fish average between 16.5 and 18.2 inches (42-46.2-cm). 
If the market were to be ``flooded'' with large or jumbo fish 
sufficient to drive down the price of those fish, the net effect would 
still be positive, as a large or jumbo fish would still hold more value 
than a medium or large fish, even if all the categories were priced the 
same, based on the weight of those fish.
    The Regulatory Flexibility Act (RFA) requires that agencies 
consider the economic impact of their rulemakings on small entities, 
including small businesses. Based on the best available data, NMFS 
concluded that this rule would not have a significant economic impact 
on a substantial number of small entities. As explained above, the data 
presented by the commenter, supports this conclusion.
    Comment 9. Several commenters stressed that most North Carolina 
fishermen do not participate in the groundfish fishery and do not have 
6-inch (15.2-cm) codends. Therefore, costs would increase.
    Response 9. Approximately 75 percent of the North Carolina vessels 
that hold commercial summer flounder permits also hold permits for the 
Northeast Multispecies fishery. Presuming such vessels do not fish 
outside of the Mid-Atlantic regulated mesh area (described in Comment 
1), the need for a 6-inch (15.2-cm) mesh (the mesh size required 
throughout the net in areas other than the Mid-Atlantic regulated mesh 
area) would not arise and the vessel might not possess the 6-inch 
(15.2-cm) diamond mesh. While NMFS still contends that any costs 
associated with the change would be minor because codends are routinely 
replaced as part of normal operating expenses, the Council has 
repeatedly stressed its desire for a mesh requirement of 5.5 inches 
(14.0-cm) throughout the net. For this and other reasons as described 
in the preamble of this rule, NMFS has determined that the 6-inch 
(15.2-cm) codend mesh would be inappropriate at this time.
    Comment 10. Several commenters contend that North Carolina is 
receiving only 42 percent of its historical landings since 1989 and 
that a 58-percent reduction is significant under the RFA.
    Response 10. NMFS is required to conduct a regulatory flexibility 
analysis to consider the needs and concerns of small entities, unless, 
as in this case, it makes a determination that the rule will not have a 
significant impact on a substantial number of small entities. The 
determination of significance of a rule is made regarding the impact of 
the rule on the recent or current situation of small entities. The RFA 
does not require NMFS to compare the level of the 1997 summer flounder 
quota with the amount of summer flounder harvested in 1989 to determine 
if the 1997 quota is significant. The RFA requires NMFS to determine 
the incremental impact of the 1997 summer flounder quota relative to 
the impacts of the 1996 summer flounder quota on those same entities, 
as last year's quota represents the baseline under which these small 
entities operated. The impact of the incremental change from 1996 to 
1997 has been determined to be not significant.
    With respect to the incremental impact of this action on North 
Carolina, the coastwide harvest limit and commercial quota for 1997 are 
no different than those set for 1996. Thus, the impact of the 1997 
quota on North Carolina is not significant. North Carolina's adjusted 
quota for 1997 reflects deductions to the 1997 quota due to overages in 
excess of its quotas in 1995 and 1996.
    Comment 11. A commenter wanted to know how vessels, unable to take 
advantage of a season as brief as the 10-day season in North Carolina 
in 1997, were accounted for in the regulatory flexibility analysis.
    Response 11. The RFA requires analysis of the economic impacts of a 
regulatory action, in total. To the extent that the various sectors are 
impacted differently by a regulatory action, the regulatory flexibility 
analysis should address the impacts on those sectors. However, nothing 
in the RFA requires analysis of the economic impact of a regulation on 
an individual small entity. In fact, such an evaluation would be 
impossible to conduct. For the industry as a whole, the economic 
impacts of the proposed quota are not significant because the total 
quota is the same for 1997 as it was in 1996 (before overages). The 
``cap'' on the quota established under Amendment 7, which revised the 
rebuilding schedule, was deemed to have significant positive impacts on 
the industry relative to the quota that would have been implemented had 
the amendment not been passed. The quota implemented by this action is 
set equal to that ``cap.'' The State of North Carolina, as with all the 
states implementing the quota, has the ability to further manage its 
allocation through trip limits and/or seasons, as the State deems 
appropriate for its fishery. How a state chooses to utilize its 
allocation is beyond the scope of the economic analysis and the 
regulations implemented here.
    Comment 12. One commenter questioned the combined effects under the 
RFA of regulations in other fisheries, particularly striped bass and 
weakfish, on the North Carolina summer flounder fishery and remarked on 
a reduction in permit holders fishing in the State.
    Response 12. While various regulations may impact fishery 
participants differently, the RFA does not require an analysis of 
cumulative impacts of regulations other than those being proposed in a 
given action. NMFS acknowledges that there may be such cumulative 
effects. However, it would be nearly impossible to anticipate 
behavioral changes by the industry in response to every regulatory 
change. While there may be a reduction of permit holders in North 
Carolina, this does not necessarily mean a reduction in fishing effort. 
Some vessel owners may have shifted their vessels to other states but 
remain in the fishery.
    Comment 13. Many commenters voiced concerns about state commercial 
quota overages and urged NMFS to improve the quota monitoring system. 
Similarly, NMFS was advised to

[[Page 10478]]

improve enforcement and to reduce underreporting and high levels of 
discards associated with the summer flounder fishery.
    Response 13. At the September 1996 Council meeting, the Council 
discussed the need for improved enforcement and quota monitoring. At 
that meeting, the Council proposed to establish a committee of 
enforcement personnel and quota system administrators to evaluate the 
commercial reporting requirements of the Summer Flounder FMP. The goal 
of this committee was to develop by January 1, 1997, an investigation 
and enforcement strategy to ensure compliance with vessel owner and 
dealer permit and reporting requirements. The committee has met several 
times to discuss ways to improve compliance on the part of the states, 
federally permitted dealers, and fishermen. NMFS anticipates that the 
Commission will adopt compliance criteria in Amendment 10 to the FMP.
    NMFS has limited authority under the current regulations to improve 
quota monitoring. NMFS has taken steps to secure direct landings 
reports from federally permitted dealers in states that have been late 
in reporting those landings. This will constitute a duplication of 
effort (double reporting), but NMFS believes this is the only effective 
alternative available at present.
    NMFS law enforcement personnel review proposed regulations and work 
with the Council to facilitate plan development with enforceability as 
a central component. Additionally, law enforcement personnel work 
proactively with industry and the Coast Guard to promote training and 
education concerning fishery regulations. NMFS law enforcement 
personnel continue to conduct periodic random checks for compliance of 
federally permitted dealers and vessels. Further, NMFS maintains 
cooperative agreements with several states that provide for increased 
and improved enforcement coverage.
    Comment 14. One commenter contended that the statement that net 
violations (tying off the codend) have occurred in the summer flounder 
fishery is largely unsubstantiated in NMFS law enforcement records.
    Response 14. Although NMFS has relatively few records of this type 
of violation for the summer flounder fishery in 1996, harvesters and 
other industry members have given every indication that violations 
involving the use of liners or tying off the codend are a concern. In 
addition, the 22nd SAW reports that high discards probably contributed 
to the pattern of underestimating the fishing mortality in the present 
assessment and in past assessments. These net infractions contribute 
directly and substantially to the discard rate.

Classification

    This action is authorized by 50 CFR part 648 and complies with the 
National Environmental Policy Act.
    These final specifications are exempt from review under 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 management measures 
contained in this rule would not have a significant economic impact on 
a substantial number of small entities. The reasons for this 
determination were discussed in the proposed rule published in the 
Federal Register on December 18, 1996 (61 FR 66646). NMFS received four 
comments, addressed above, regarding this certification. These comments 
did not cause NMFS to change its determination regarding the 
certification. As a result, a regulatory flexibility analysis was not 
prepared.

List of Subjects in 50 CFR Part 648

    Fisheries, Reporting and record keeping requirements.

    Dated: March 3, 1997.
Rolland A. Schmitten,
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. Effective April 7, 1997 Sec. 648.103, paragraph (a), is revised 
to read as follows:


Sec. 648.103   Minimum fish sizes.

    (a) The minimum size for summer flounder is 14 inches (35.6 cm) TL 
for all vessels issued a moratorium permit under Sec. 648.4 (a)(3), 
except on board party and charter boats carrying passengers for hire or 
carrying more than three crew members, if a charter boat, or more than 
five crew members, if a party boat;
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[FR Doc. 97-5698 Filed 3-4-97; 3:06 pm]
BILLING CODE 3510-22-P