[Federal Register Volume 63, Number 251 (Thursday, December 31, 1998)]
[Rules and Regulations]
[Pages 72203-72215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34511]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

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


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

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

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

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

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

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

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

SUPPLEMENTARY INFORMATION:

Background

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

Summer Flounder

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

[[Page 72204]]

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

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

Scup

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

[[Page 72205]]

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

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

Black Sea Bass

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

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

Changes From the Proposed Rule

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

Comments and Responses

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

[[Page 72206]]

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

[[Page 72207]]

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

[[Page 72208]]

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

[[Page 72209]]

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

[[Page 72210]]

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

[[Page 72211]]

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

[[Page 72212]]

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

Classification

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

Summary of FRFA

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

[[Page 72213]]

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

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


[[Page 72214]]

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

[[Page 72215]]

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

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: December 23, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec. 648.123, paragraph (a)(1) is revised to read as follows:


Sec. 648.123  Gear restrictions.

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