[Federal Register Volume 65, Number 19 (Friday, January 28, 2000)]
[Proposed Rules]
[Pages 4547-4555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1988]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 000119014-0014-01; I.D. No. 112399C]
RIN 0648-AM48


Fishers of the Northeastern United States; Summer Flounder, Scup, 
and Black Sea Bass Fisheries; 2000 Specifications

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

ACTION:  Proposed rule; request for comments.

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SUMMARY:  NMFS proposes specifications for the 2000 summer flounder, 
scup, and black sea bass fisheries. The implementing regulations for 
the Fishery Management Plan for the Summer Flounder, Scup, and Black 
Sea Bass Fisheries (FMP) require NMFS to publish specifications for the 
upcoming

[[Page 4548]]

fishing year for each fishery and to provide an opportunity for public 
comment. The intent of these measures is to address overfishing of the 
summer flounder, scup, and black sea bass resources.

DATE:  Public comments must be received, at the appropriate address or 
fax number (see ADDRESSES), not later than 5 p.m. eastern standard time 
on February 28, 2000.

ADDRESSES:  Copies of supporting documents used by the Summer Flounder, 
Scup, and Black Sea Bass Monitoring Committees; the Environmental 
Assessment, Regulatory Impact Review, Initial Regulatory Flexibility 
Analysis (EA/RIR/IREA); and the Essential Fish Habitat Assessment are 
available from Patricia A. Kurkul, Regional Administrator, Northeast 
Region, National Marine Fisheries Service, One Blackburn Drive, 
Gloucester, MA 01930-2298. The EA/RIR/IRFA is accessible via the 
Internet at http:/www.nero.gov/ro/doc/nr.htm.
    Written comments on the proposed specifications should be sent to 
Patricia A. Kurkul at the same address. Mark on the outside of the 
envelope, ``Comments--2000 Summer Flounder, Scup, and Black Sea Bass 
Specifications.'' Comments may also be sent via facsimile (fax) to 
(978) 281-9371. Comments will not be accepted if submitted via e-mail 
or the Internet.
    Comments regarding the collection-of-information requirements 
contained in this proposed rule should be sent to the Regional 
Administrator and the Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Washington, DC 20503 (Attention: 
NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:  Regina L. Spallone, Fishery Policy 
Analyst, (978) 281-9221, fax (978) 281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The regulations implementing the FMP outlined the process for 
specifying annually the catch limits for the commercial and 
recreational fisheries, as well as other management measures (e.g., 
mesh requirements, minimum fish sizes, season, and area restrictions) 
for these fisheries. These measures are intended to achieve the annual 
targets (either a fishing mortality rate (F) or an exploitation rate) 
set forth for each species in the FMP.
    A Monitoring Committee for each species, made up of members from 
NMFS, the Atlantic States Marine Fisheries Commission (Commission), and 
both the Mid-Atlantic and New England Fishery Management Councils, is 
required to review available information and to recommend catch limits 
and other management measures necessary to achieve the target F or 
exploitation rate for each fishery, as specified in the FMP. The 
Council's Demersal Species Committee and the Commission's Summer 
Flounder, Scup, and Black Sea Bass Board (Board) then consider the 
Monitoring Committee's recommendations and any public comment in making 
their recommendations. The Mid-Atlantic Fishery Management Council 
(Council) and Board made their annual recommendations at a joint 
meeting held August 9-12, 1999.
    This rulemaking contains proposed gear restricted areas for the 
protection of scup. NMFS received a petition for rulemaking requesting 
implementation of gear restricted areas and other measures (see 64 FR 
55688, October 14, 1999). A separate ``notice of finding'' denying the 
petition, including responses to comments received concerning the 
petition, is published in this issue of the Federal Register in the 
Final Rules section.

Summer Flounder

    The FMP specifies a target F for 2000 of FMAX--that is, 
the level of fishing that produces maximum yield per recruit. Best 
available data indicate that FMAX is currently equal to 
0.26. The FMP allocates the total allowable landing (TAL) associated 
with the target F 60 percent to the commercial sector and 40 percent to 
the recreational sector. The commercial allocation is further allocated 
to the coastal states based on percentage shares specified in the FMP.
    A summer flounder stock assessment was completed by the Northeast 
Fisheries Science Center's (NEFSC) Southern Demersal Working Group in 
the Spring of 1999 and reviewed by the Council's Scientific and 
Statistical (S&S) Committee in July 1999. The reviewed assessment, 
including the recommendations of the S&S Committee, was made available 
to the Summer Flounder Monitoring Committee. This assessment is 
summarized in the EA/RIR/IRFA.
    The Summer Flounder Monitoring Committee reviewed the stock status 
and projections based on these data and made recommendations to achieve 
the target F. The Monitoring Committee recommended a TAL limit of 
16.815 million lb (7.627 million kg), which would be divided 10.089 
million lb (4.576 million kg) to the commercial sector and 6.726 
million lb (3.051 million kg) to the recreational sector.
    The Council and Board (hereinafter, referred to as ``the Council'') 
reviewed this recommendation and did not adopt it. Instead, the Council 
recommended a 2000 TAL level of 18.518 million lb (8.4 million kg). At 
this level 11,111,298 lb (5,040,000 kg) would be allocated to the 
commercial fishery and 7,407,532 lb (3,360,000 kg) to the recreational 
fishery. The FMP requires state commercial quota allocations for the 
year 2000 to be adjusted downward if there are landings in excess of 
the states' 1999 allocations.
    Based on stochastic projection results, the recommended TAL of 
18.518 million lb has a 25-percent probability of achieving the target 
F of 0.26 in 2000. The Council believes that this level of probability 
is reasonable as it believes that the stock size projected for 2000 
based on the current assessment is underestimated. The Council notes 
that analyses of previous assessment results indicate a retrospective 
pattern in which estimates of stock size were underestimated and the 
fishing mortality rate overestimated. The Council believes that this is 
the case for the 1998 estimates of stock size and F. A greater stock 
size estimate for 1998 would increase the projected stock size in 2000 
and increase the probability that a TAL of 18.518 million lb would 
achieve the target F in 2000.
    In addition, the Council noted that the projections were very 
dependent on the recruitment level estimated for 1997 and 1998. 
Although virtual population analysis results indicate that recruitment 
for 1997 and 1998 may be poor (23 and 26 million fish compared with an 
average of 40 million fish), these estimates are the most uncertain in 
the series. It is possible that the size of the year class is 
underestimated. For example, previous assessment results indicated that 
the 1996 year class was poor (23 million fish). The latest assessment 
indicates that the size of the 1996 year class was 40 million fish. 
Such an underestimation may be the case for the 1997 and 1998 year 
classes. A larger year class size would allow for a larger stock size 
and a greater likelihood that the target F would be achieved in 2000.
    Currently, the Commission has measures in place to decrease 
discards of sublegal fish in the commercial fishery as well as reduce 
regulatory discards that occur as the result of landing limits in the 
states. Specifically, the Commission established a system whereby 15 
percent of each state's quota would be voluntarily set aside each year 
for vessels to land an incidental catch allowance (usually implemented 
as trip limits) after the directed fishery has

[[Page 4549]]

closed. The object of this incidental catch set-aside is to reduce 
discards by allowing fishermen to land a certain amount of summer 
flounder they catch incidentally after their state's fishery is closed, 
while also trying to ensure that the state's overall quota is not 
exceeded.
    NMFS proposes to implement the Council recommendations for summer 
flounder, although NMFS does not necessarily ascribe the same 
confidence to the elements of the Council's rationale. Specifically, 
while the Council's rationale may likely be valid, NMFS does not 
necessarily presume that estimates of recruitment are low or that the 
retrospective pattern has necessarily repeated to the extent that the 
Council asserts these events will result in the attainment of the F 
target. In addition, NMFS notes that both the Summer Flounder 
Monitoring Committee and the Council made their recommendations without 
considering the Commission's state incidental catch set-aside in terms 
of total mortality reduction. NMFS does believe that a decrease in the 
amount of discards would decrease overall mortality, and, thus, 
increase the likelihood of achieving the target F in 2000.
    The commercial quotas by state for 2000 are presented in Table 1. 
Although NMFS has no authority to establish an incidental catch 
allocation, for the convenience of the reader Table 1 presents the 
total allocation broken down into both directed and incidental catch 
fisheries. These quotas are preliminary and subject to downward 
adjustment if there are overages in a state's 1999 harvest.

                                                 Table 1.--2000 Summer Flounder State Commercial Quotes
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Directed          15 Percent as incidental            Total
                                                                 Percent   --------------------------           catch          -------------------------
                            State                                 share                              --------------------------
                                                                                 Lb         Kg \1\         Lb         Kg \1\         Lb         Kg \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME..........................................................       0.04756        4,492        2,037          793          360        5,284        2,397
NH..........................................................       0.00046           43           20            8            3           51           23
MA..........................................................       6.82046      644,159      292,186      113,675       51,562      757,834      343,748
RI..........................................................      15.68298    1,481,181      671,852      261,385      118,562    1,742,566       79,041
CT..........................................................       2.25708      213,170       96,692       37,618       17,063      250,788      113,756
NY..........................................................       7.64699      722,221      327,594      127,451       57,811      849,672      385,405
NJ..........................................................      16.72499    1,579,594      716,492      278,752      126,440    1,858,346      842,931
DE..........................................................       0.01779        1,680          762          297          134        1,977          897
MD..........................................................       2.03910      192,583       87,354       33,985       15,514      226,568      102,770
VA..........................................................      21.31676    2,013,264      913,201      355,282      161,153    2,368,546    1,074,354
NC..........................................................      27.44584    2,592,126    1,175,768      457,434      207,489    3,049,560    1,383,257
                                                             -------------------------------------------------------------------------------------------
    Total...................................................     100.00000    9,444,512    4,283,959    1,666,679      755,993   11,111,191   5,039,951
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Subject to rounding error.

Scup

    The FMP established a target exploitation rate for scup in 2000 of 
33 percent. The total allowable catch (TAC) associated with that rate 
is allocated 78 percent to the commercial sector and 22 percent to the 
recreational sector. Discard estimates are deducted from both TACs to 
establish TALs for both sectors. The commercial TAL is allocated to 
three different periods.
    Scup was most recently assessed at the 27th Northeast Regional 
Stock Assessment Workshop in June 1998 (SAW 27). This assessment 
indicates that scup are overexploited and at a record low biomass 
level. SAW 27 concluded that spawning stock biomass is less than one-
tenth of the biomass threshold--the maximum NEFSC indices of spawning 
stock biomass observed, or 2.77 kg/tow during 1977-1979. The assessment 
is summarized in the EA/RIR/IRFA.
    These proposed scup specifications for fishing year 2000 are based 
on an exploitation rate used in the rebuilding schedule that was 
approved when the species was added to the FMP in 1996, prior to 
passage of the Sustainable Fisheries Act (SFA). Subsequently, the 
Council resubmitted that rebuilding plan for scup as part of Amendment 
12. Amendment 12 was intended to bring the FMP into compliance with the 
provisions of the SFA. On April 28, 1999, NMFS disapproved the 
rebuilding plan for scup because it did not comply with the SFA. 
Although the exploitation rate portion of the overfishing definition 
(converted to a fishing mortality rate), by itself, was conceptually 
sound, albeit somewhat risk-prone, NMFS determined that the combination 
of that exploitation rate and the general decline of the stock made the 
risk that the rebuilding plan would not achieve stock rebuilding goals 
in the long term unacceptable. The scup specifications for fishing year 
2000 are based on the exploitation rate found to be conceptually sound. 
NMFS believes that the annual specifications do not necessarily result 
in long-term risks to the stock associated with the disapproved 
rebuilding plan. The specifications are annual measures that will be 
reviewed, and modified as appropriate, by the Council and NMFS for 
fishing year 2001. Furthermore, setting the scup specifications using 
the 2000 exploitation rate is a more cautious approach to managing this 
overfished resource than a failure to set any specifications until the 
Council submits, and NMFS approves, a revised rebuilding plan that 
meets the SFA requirements.
    The Monitoring Committee reviewed available data and projected that 
the 1999 exploitation target of 47 percent would be achieved. The 
Monitoring Committee recommended that the TAC be reduced in proportion 
to the reduction in exploitation rates from 1999 to 2000, i.e., a 30-
percent reduction, outlined in the rebuilding plan. As such, the 
Monitoring Committee recommended a TAC for 2000 of 4.15 million lb 
(1.88 million kg) resulting in a 3.243 million-lb (1.47 million-kg) 
commercial TAC, and a 0.915 million-lb (0.415 million-kg) recreational 
TAC.
    The Council reviewed data indicating that, based on the average 
biomass estimates for 1998 and 1999, the 1999 exploitation rate could 
be well below its target of 47 percent. Specifically, the Council 
concluded that the data suggested it is possible that exploitation in 
1999 was as low as 30 percent, provided certain assumptions were met 
regarding biomass estimates. A 30-percent exploitation rate is equal to 
the rebuilding plan's target for 2000. Thus,

[[Page 4550]]

the Council recommended, and NMFS proposes, to maintain the TAC for 
2000 at the 1999 level, namely, 5.922 million lb (2.686 million kg).
    Allocating the 5.922 million lb (2.686 million kg) TAC between the 
commercial and recreational sectors based on a 78 and 22 percent 
division, respectively, results in a commercial TAC of 4,619,160 lb 
(2,095,215 kg) and a recreational TAC of 1,302,840 lb (590,958 kg). 
Assuming the same proportion of discards to catch in 2000 as 1997 (45.1 
percent), the commercial discards would be 2,085 million lb (0.946 
million kg), and the quota would be 2.534 million lb (1.149 million 
kg). Based on the proportion of recreational discards to catch in 1997 
(4.96 percent), the recreational discards would be 0.065 million lb 
(0.029 million kg) and the harvest limit would be 1.238 million lb 
(0.562 million kg). The proposed commercial allocation is shown in 
Table 2. As with summer flounder, these allocations are preliminary and 
are subject to a downward adjustment for any overages in a period's 
harvest in 1999. Preliminary data indicate that the Winter I and Summer 
period allocations have been exceeded in 1999, which would require a 
corresponding reduction in those periods in 2000. Since the data 
collection for all periods in 1999 has not yet been finalized, this 
table shows the allocations prior to any deductions.

                                                 Table 2.--Percent Allocations of Commercial Scup Quota
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                          Quota allocation           Landing limits
                         Period                            Percent        TAC \1\      Discards \2\  ---------------------------------------------------
                                                                                                           Lb         Kg \3\         Lb           Kg
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter I...............................................        45.11       2,083,703         940,543    1,143,160      518,529   \4\ 10,000        4,536
                                                                           (945,168)       (426,630)
Summer.................................................        38.95       1,799,163         812,108      987,055      447,721        * n/a
                                                                           (816,100)       (368,372)
Winter II..............................................        15.94         736,294         332,349      403,945      183,226        4,000        1,814
                                                                           (333,983)       (150,754)
                                                        ------------------------------------------------------------------------------------------------
    Total \5\..........................................       100.00       4,619,160       2,085,000    2,534,160    1,149,476  ...........  ...........
                                                                         (2,095,215)       (945,740)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Total allowable catch, in pounds (kilograms in parentheses).
\2\ Discard estimates, in pounds (kilograms in parentheses).
\3\ Subject to rounding error.
\4\ The Winter I landing limit will drop to 1,000 pounds (454 kg) upon attainment of 85 percent of the seasonal allocation.
\5\ Totals subject to rounding error.
* n/a--Not applicable.

    To achieve the commercial quotas, the Council recommended, and NMFS 
proposes, a landing limit of 10,000 lb (4,536 kg), with a reduction to 
1,000 lb (454 kg) when 85 percent of the quota allocation is harvested 
for Winter I (January-April). A 4,000-lb (1,814-kg) landing limit also 
would be in place for the entire Winter II (November-December) period.

Gear Restricted Areas

    The Monitoring Committee noted the need to reduce discards in the 
commercial scup fishery. Specifically, SAW 27 noted that F should be 
reduced ``substantially and immediately'' and that, while estimates are 
uncertain, most mortality in recent years was ``clearly attributable to 
discards, particularly when incoming recruitment is strong.'' The 
report noted that reductions ``in discards from small-mesh fisheries'' 
would be particularly effective for this stock. Thus, the Monitoring 
Committee recommended that the Council implement regulations to close 
areas to fishing by trawl gear with codend mesh sizes less than 4.5 in 
(11.43 cm) to reduce discards of scup.
    The Council noted NMFS' disapproval of the scup bycatch provision 
and rebuilding schedule in Amendment 12 to the FMP and heeded the 
advice of the Monitoring Committee and SAW 27 that scup discards must 
be decreased. To reduce discards of small scup, the Council voted to 
recommend seasonal gear restricted areas in which commercial vessels 
would be prohibited from fishing with trawl or midwater trawl gear with 
codend nets of mesh size less than 4.5 in (11.4 cm), unless they were 
participating in an exempted fishery (a fisher that has been identified 
by the Council to have less than a 10-percent bycatch of scup). The 
Council recommended areas that were identified by an ad hoc  advisory 
panel consisting of Council and Board members, industry advisors, and 
the public. The gear restricted areas, each lasting approximately 2 
weeks, would be located within parts of statistical areas 537, 539, 
613, 615, 616, 621, 622, and 623.
    NMFS believes that the adoption of gear restricted areas is a 
critical measure to assure the attainment of the target exploitation 
rate and to provide sorely needed reductions in discards for this 
fishery. However, NMFS does not support the areas and times identified 
in the Council's recommendation. The Council's recommended areas and 
times are extremely small and short in duration. An analysis of the 
Vessel Trip Report (VTR) and sea sample data used to help identify 
these areas shows that it is unlikely that the small, 2-week restricted 
gear areas identified in the Council's recommendation would coincide 
with the seasonal migration of scup.
    Generally, scup are present inshore off southern New England during 
the summer spawning months, and migrate to more southern offshore 
waters in the fall. However, scup migration is dependent on water 
temperature and can vary from one year to the next. The small areas 
recommended by the Council would present a considerable enforcement 
burden with limited conservation benefits. It is likely that harvesters 
would easily shift fishing operations to nearby unrestricted areas 
where high discard rates are likely. The Council's recommended gear 
restricted areas and associated time periods do not necessarily 
correspond to the areas and time periods with the highest scup discards 
(areas with discards greater than 10 percent by weight of the scup 
retained, based on sea sample data) for each statistical area during 
the time periods recommended. Consequently, NMFS does not propose these 
particular areas and times for gear restrictions.
    Instead, NMFS proposes an alternative analyzed by the Council that 
would establish larger gear restricted

[[Page 4551]]

areas that would remain closed to small-mesh fisheries for longer 
periods of time (see Alternative 6, as described in the EA/RIR/IRFA). 
This proposed rule would restrict fishing in two areas, a Southern Gear 
Restricted Area and a Northern Gear Restricted Area. In the Southern 
Gear Restricted Area, comprised of parts of statistical areas 533, 537, 
615, 616, 621, 622, and 623 in Federal waters off New Jersey and 
Delaware, vessels could not fish with codend mesh smaller than 4.5 in 
(11.4 cm) from January 1 through April 30. In the Northern Gear 
Restricted Area, comprised of parts of statistical areas 537, 539, and 
613 in Federal waters off Massachusetts, Rhode Island, and New York, 
vessels could not fish with codend mesh smaller than 4.5 in (11.4 cm) 
from November 1 through December 31. Both of these areas incorporate 
the areas recommended by the ad hoc  advisory panel.
    During the time periods previously mentioned, vessels with midwater 
trawl or other trawl nets or netting that have less than a 4.5-in 
(11.4-cm) diamond mesh in the codend would be prohibited from fishing 
for or possessing black sea bass, Loligo  squid, Atlantic mackerel, and 
silver hake when in the Southern Gear restricted area. Vessels with 
midwater trawl or other trawl nets or netting that have less than 4.5 
in (11.4 cm) diamond mesh in the codend would be prohibited from 
fishing for or possessing black sea bass, Atlantic herring, Loligo 
squid, Atlantic mackerel, and silver hake when in the Northern Gear 
restricted area. Copies of a chart depicting these areas are available 
in the EA/RIR/IRFA and from the Regional Administrator upon request 
(see ADDRESSES.
    Analyses indicate that the proposed gear restricted areas would 
achieve a substantial reduction of scup discards in the small-mesh 
fisheries (58 percent), as compared with the Council's preferred 
alternative (34 percent). Such a significant reduction is needed 
because, while data are imprecise, SAW 27 notes that the majority of 
the scup fishing mortality is ``clearly attributable to discards'' and 
that discards of age 0 to 3 fish in both the directed and non-directed 
fisheries ``are a significant component of the current estimates of 
catch at age.'' SAW 27 estimates that discards may be several times 
higher than the Council's estimates. For instance, the 1997 TAC 
estimated discards at 1.1 million 1b (0.5 million kg), whereas SAW 27 
estimated discards at 4.0 million lb (1.8 million kg), approximately 
3.6 times the Council's estimate. Thus, in order not to exceed the 
Council's 2000 estimate of discards of 2 million lb (0.4 million kg), 
discards must be significantly reduced. Therefore, the proposed 
reduction is consistent with the SAW 27 advice indicating that F should 
be reduced ``substantially and immediately'' and ``that reducing 
discards (especially in small mesh fisheries) would have the most 
impact in that regard.'' Further, because the areas NMFS proposes are 
larger and restricted for a longer period of time, this option is 
likely to be much more enforceable and effective when compared with the 
Council's recommendation.
    The small size and short duration of the gear restricted areas in 
the Council's recommendation overestimate the conservation benefits of 
the measure, because fishermen could easily continue to fish in 
adjacent areas with high concentrations of scup and, therefore, 
potentially discard large amounts of sublegal scup. The larger areas of 
the proposed alternative incorporate identified ``hot spots'' to a 
greater extent than the Council's preferred alternative, and would 
allow fishing with small-mesh nets only in areas with potentially lower 
scup discards.
    The data that identify with a high level of certainty the primary 
areas with high levels of discards are limited. The ad hoc advisory 
panel raised concerns about these data limitations and questioned the 
extent of the discard problem. In light of the SAW 27 advice, however, 
the precautionary approach to developing measures to reduce discards 
consistent with the requirements of the Magnuson-Stevens Act requires 
that action be taken on this severely overfished stock.
    To the extent practicable, the proposed restrictions seek to 
balance needed reductions in scup discards while maintaining viable 
fishing opportunities for other species. The proposed areas allow 
vessels to fish in areas in which scup discards are not expected to be 
a problem. The Council's recommended measure would allow vessels to 
fish in areas in which scup discards are expected to be a problem. Sea 
sample data indicate incidents of high discards within sub-areas of the 
Northeast statistical areas that are adjacent to the Council's 
recommended gear restricted areas.
    Lastly, vessels with exempted experimental fishing permits would be 
allowed to conduct exempted fishing activities with small-mesh gear in 
the gear restricted areas. The Council is working with industry members 
to identify gear modifications that would reduce catch of scup in 
small-mesh fisheries for squid. Once this experimental work is 
completed and an effective gear design is identified, the Council could 
authorize its use in the gear restricted areas.

Black Sea Bass

    The FMP specifies a target exploitation rate of 48 percent for 
2000, equivalent to F=0.73. This target is to be attained through 
specification of a TAL level that is allocated to the commercial (49 
percent) and recreational (51 percent) fisheries. The commercial quota 
is specified on coastwide basis by quarter.
    The most recent assessment on black sea bass, SAW 27, indicates 
that black sea bass are over-exploited and at a low biomass level. 
Although data limitations make this estimate uncertain, fishing 
mortality in 1998 may have been equal to, or even less than, the target 
(48-percent exploitation). The NEFSC spring survey results for 1998 and 
1999 indicate that there may have been a significant increase in black 
sea bass biomass in 1999 (although the 1999 index is high mainly 
because of a single tow). This assessment is summarized in the EA/RIR/
IRFA.
    The Black Seas Bass Monitoring Committee reviewed this information 
and recommended that the 2000 TAL remain the same as 1999, that is, 
6.17 million lb (2.80 million kg). That TAL would result in allocations 
of 3.02 million lb (1.37 million kg) to the commercial quota and of 
3.15 million lb (1.43 million kg) to the recreational harvest limit. 
Because of the uncertainty of the data, the Monitoring Committee 
recommended that the threshold level triggering the minimum mesh 
requirement should be reduced from 1,000 lb (454 kg) to 100 lb (45.4 
kg). Further, as a means to allow the fishery to stay open longer 
during each quarter, the Monitoring Committee also recommended that the 
trip limits for each quarter be reduced.
    Upon review of the recommendations, the Council agreed to maintain 
the black sea bass TAL at the 1999 level and to reduce the quarterly 
trip limits, as recommended by the Black Sea Bass Monitoring Committee. 
The Council recommended that trip limits be reduced in an attempt to 
prevent overages in each of the quarters from recurring. Preliminary 
data indicate that, in 1999, the quotas for Quarters II and III were 
exceeded, which requires a corresponding reduction in those quarters in 
2000. Status quo was retained on other related management measures, 
such as minimum fish size and possession limits. NMFS proposes to 
implement the Council recommendations. The proposed commercial quota 
and corresponding

[[Page 4552]]

trip limits are shown in Table 3. Since the data collection for all 
quarters in 1999 has not yet been finalized, this table shows the 
allocations prior to any deductions.

          Table 3.--2000 Black Sea Bass Quarterly Coastwide Commercial Quotas and Quarterly Trip Limits
----------------------------------------------------------------------------------------------------------------
                                                                                               Trip limits
                    Quarter                        Percent         Lb          Kg1     -------------------------
                                                                                             Lb          Kg1
----------------------------------------------------------------------------------------------------------------
1 (Jan-Mar)....................................        38.64    1,168,760      530,141        9,000        4,082
2 (Apr-Jun)....................................        29.26      885,040      401,447        3,000        1,361
3 (Jul-Sep)....................................        12.33      372,951      169,168        2,000          907
4 (Oct-Dec)....................................        19.77      597,991      271,244        3,000        1,361
----------------------------------------------------------------------------------------------------------------
    Total1.....................................       100.00    3,024,742    1,372,000  ...........  ...........
----------------------------------------------------------------------------------------------------------------
1Subject to rounding error.

Classification

    This action is authorized by 50 CFR part 648.
    These proposed specifications have been determined to be not 
significant for purposes of E.O. 12866.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the Paperwork Reduction Act (PRA), unless that 
collection of information displays a currently valid OMB control 
number.
    This rule contains a collection-of-information requirement subject 
to the PRA. The request for an experimental fishing exemption has been 
approved by OMB under Control Number 0648-0309. Public reporting burden 
for this collection of information is estimated to average 1 hour per 
response, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining this data needed, and 
completing and reviewing the collection of information. Public comment 
is sought regarding: Whether this proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information shall have practical utility; the 
accuracy of the burden estimate; ways to enhance the quality, utility, 
and clarity of the information to be collected; and ways to minimize 
the burden of the collection of information, including through the use 
of automated collection of information, including through the use of 
automated collection techniques or other forms of information 
technology. Send comments on these or any other aspects of the 
collection of information to NMFS and to OMB (see ADDRESSES).
    The Council prepared an IRFA in section 3.0 of the RIR that 
describes the economic impacts this proposed rule, if adopted, would 
have on small entities. A description of the action, why it is being 
considered, and the legal basis for this action are contained at the 
beginning of this section of the preamble and in the SUMMARY section of 
the preamble. A description of the recordkeeping and reporting 
requirements of this proposed rule is provided in the PRA discussion of 
this section. A summary of the analysis follows:
    The categories of small entities likely to be affected by this 
action are commercial vessel owners with vessels permitted to harvest 
summer flounder, scup, or black sea bass. The IRFA estimates that the 
proposed 2000 quotas are expected to affect 1,899 vessels with a summer 
flounder, scup, and/or black sea bass permit. Of these, 1,056 vessels 
are actively participating (i.e., landed catch in 1998) in the 
fisheries. In addition, the IRFA estimates that 172 of these vessels 
would be affected by the proposed gear restricted areas.
    The IRFA examines four scenarios: Scenario I analyzes the 
cumulative impacts of the harvest limits proposed by the Council and 
Board for summer flounder, scup, and black sea bass on vessels that are 
permitted to catch any of these three species. Scenario II differs from 
Scenario I in that its analysis of cumulative impacts includes the 
summer flounder harvest limits proposed by the Monitoring Committee. 
Scenario III analyzes the cumulative impacts of the least restrictive 
possible harvest limits--those that would result in the smallest 
reductions (or greatest increases) in landings (relative to 1998) for 
all species. These harvest limits resulted in the highest possible 
landings for 2000, regardless of their probability of achieving the 
biological targets. Scenario IV analyzes the cumulative impacts of the 
most restrictive possible harvest limits--those that would result in 
the greatest reductions in landings (relative to 1998) for all species.
    An analysis of the proposed harvest limits indicates that these 
limits will result in revenue loss of 5 percent or greater to 115 of 
the 1,056 commercial vessels subject to this rule. Those experiencing 
such reductions varied from 2 vessels landing only scup to 35 vessels 
landing only black sea bass. No change in revenue would be experienced 
by 264 vessels, while 677 vessels would experience losses of less than 
5 percent. Of the 115 vessels with revenue losses of 5 percent or 
greater, 46 vessels would experience a 5 to 9 percent revenue loss, 67 
vessels would experience 10 to 29 percent revenue loss, and 2 vessels 
would experience a 30 to 39 percent revenue loss.
    An analysis of the Monitoring Committees' recommendations (Scenario 
II) indicates that these limits would result in a revenue loss of 5 
percent or greater to 231 of the commercial vessels subject to this 
rule. Vessels with reductions in revenue of 5 percent or greater varied 
from 2 vessels landing only scup to 93 vessels landing all three 
species. No change in revenue would be experienced by 54 vessels, while 
771 vessels would have revenue losses less than 5 percent. An analysis 
of the least restrictive harvest limits (Scenario III) indicates that 
none of the vessels would suffer revenue losses of 5 percent or 
greater, and all would receive increases in revenue. An analysis of the 
most restrictive harvest limits (Scenario IV) indites that these limits 
would result in revenue loss of 5 percent or greater for 510 commercial 
vessels, with 546 vessels having revenue loss less than 5 percent. 
Vessels with reductions in revenue of 5 percent or greater would be 
felt by anywhere from 3 vessels landing only scup to 278 vessels 
landing all three species.
    The IRFA also examined six gear restricted areas to reduce the 
discards of small scup: The first alternative includes the Council's 
preferred alternative, as recommended by the ad

[[Page 4553]]

hoc advisory panel, of small areas within statistical areas 537, 539, 
613, 615, 616, 621, 622, and 623. The second alternative includes those 
same sub-areas, but with the northern areas closed from November 1 
through December 31 and the southern areas closed from January 1 
through April 30 (the times recommended by the Scup Monitoring 
Committee with the areas recommended by the ad hoc advisory panel). The 
third alternative includes restrictions in statistical areas 537, 539, 
and 613 from November 1 through December 31, and statistical areas 616 
and 622 from January 1 through April 30 (the Scup Monitoring 
Committee's recommendation). The fourth alternative includes the areas 
described in the third alternative and a series of approximately 2-week 
rolling restrictions from November 1 through April 30 (the areas 
recommended by Scup Monitoring Committee and time periods recommended 
by the ad hoc advisory panel). The fifth alternative includes a series 
of small 10-minute square sub-areas within statistical areas 537, 539, 
613, 616, and 622 that correspond to the 10-minute squares of the 
highest scup discards (areas with discards greater than 10 percent of 
the total scup discards for the area) for each statistical area and the 
November 1 through December 31 and January 1 through April 30 time 
periods recommended by the Scup Monitoring Committee. The sixth 
alternative (NMFS' proposed alternative) analyzes areas that intersect 
statistical areas 537, 539, and 613, from November 1 through December 
31, and statistical areas 533, 537, 615, 616, 621, 622, and 623, from 
January 1 through April 30. These areas both overlap the areas 
described in the first alternative (the Council's preferred 
alternative) and include the 10-minute squares identified by Council 
staff as having high scup discards (the fifth alternative), using 
January 1989 through April 1999 sea sample data.
    All alternatives considered in the analysis would reduce landings 
and revenue of Atlantic herring, Atlantic mackerel, black sea bass, 
whiting, and Loligo. According to 1998 VTR data, it is estimated that 
approximately 172 vessels would be affected by any of the gear 
restriction alternatives. These vessels are identified as those vessels 
that fished with otter trawl gear with codend mesh less than 4.5 in 
(11.4 cm) in gear restricted mesh areas, specifically, those specified 
under Alternatives 3 and 4 since those areas incorporate full 
statistical areas. Since VTR data specify neither the 10-minute square 
level nor the complete longitude and latitude information, it is not 
possible to identify the number of vessels that would be affected by 
the remaining alternatives. However, Alternatives 3 and 4 represent the 
most restrictive temporal-spatial limitations of all the alternatives 
evaluated. Thus, it is possible that these alternatives represent the 
upper limit of the number of affected vessels under any specific 
alternative.
    The reductions in landings would cause decreases in ex-vessel 
revenues as follows: $1.96 million for Alternative 1, $4.5 million for 
Alternative 2, $12.1 million for Alternative 3, $9.8 million for 
Alternative 4, $2.2 million for Alternative 5, and $13.0 million for 
Alternative 6. However, the loss of revenues form the various 
alternatives are likely to be overestimated because closing an area for 
a specific time would not necessarily prevent trawling effort, rather 
it would often redirect it to other open areas. The larger areas of 
NMFS' proposed alternative incorporate identified ``hot spots'' to a 
greater extent than the Council's preferred alternative, and would, 
thus, move participating vessels into areas with potentially lower scup 
discards. Any economic impacts of a reduction in landings inside the 
gear restricted areas would be moderated by an increase in landings 
outside the gear restricted area. Meanwhile, discards outside the gear 
restricted area for the proposed alternative are expected to be less 
than the amount that would have occurred inside the gear restricted 
area. However, other impacts to profitability are possible; for 
instance, costs, due to vessel operation could increase due to 
displacing effort.

Item of Particular Concern

    Based on guidance from the Council, NMFS proposes to prohibit the 
use of any trawl gear with a codend mech of less than 4.5 in (11.4 cm) 
in the gear restricted areas during the specified times. Such a 
prohibition would include restrictions on otter trawls, Scottish 
seines, midwater trawls, and any other trawl gear as defined in 
Sec. 648.2 of the regulations. This prohibition would be consistent 
with similar measures found in the Northeast multispecies regulations 
addressing regulated mesh areas and restrictions on gear and methods of 
fishing at Sec. 648.80 and with recommendations regarding 
enforceability. However, this clarification to the restriction came 
after the Council had completed the initial regulatory flexibility 
analysis (IRFA), which specifically notes the impacts relative to 
``otter trawl'' vessels only.
    NMFS is confident that the universe of impacted entities analyzed 
in the IRFA is still appropriate, because vessels using midwater and 
other trawls generally also use otter trawls, and would thus have been 
captured in the identification of vessels in the IRFA. Otter trawls 
were used on approximately 99 percent of all identified trips in the 
database. NMFS is interested, however, in making sure that the analysis 
adequately describes the economic impacts of the gear restricted areas 
on vessels conducting individual trips using trawl gear other than 
otter trawls. The economic impacts on these vessels may be slightly 
underestimated by the IRFA. However, preliminary analysis indicates 
that vessels conducting trips during the gear restriction time frames 
using different types of trawl gears is very small; only five vessels 
have been identified as fishing both with an otter trawl and another 
type of trawl during the proposed restricted periods.
    NMFS is seeking public comment on potential impacts of the proposed 
restrictions on trawl vessels, other than those using otter trawls 
exclusively, that would be impacted by these regulations. NMFS will 
consider these comments, as well as the results of further analyses of 
the existing database, in making the final decision whether or not to 
adopt the proposed gear restricted areas.
    Regarding sec. 603(b)(3) of the Regulatory Flexibility Act, this 
proposed rule does not duplicate, overlap, or conflict with other 
Federal rules. A copy of the complete IRFA can be obtained from the 
Northeast Regional Office of NMFS (see ADDRESSES) or via the Internet 
at http://www.nero.nmfs.gov/ro/doc/nr.htm.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: January 21, 2000.
Andrew A. Rosenberg,
Deputy Asst. Administrator for Fisheries National Marine Fisheries 
Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. In Sec. 648.14, paragraphs (a)(121) and (a)(122) are added to 
read as follows:


Sec. 648.14  Prohibitions.

    (a) * * *
    (121) Fish for, possess or land Loligo squid, silver hake, black 
sea bass or

[[Page 4554]]

Atlantic mackerel in or from the area, and during the time period, 
described in Sec. 648.122(a) while in possession of midwater trawl or 
other trawl nets or netting that do not meet the minimum mesh 
restrictions or that are modified, obstructed or constricted, if 
subject to the minimum mesh requirements specified in Sec. 648.122 and 
Sec. 648.123(a), unless the nets or netting are stowed in accordance 
with Sec. 648.23(b).
    (122) Fish for, possess or land Loligo squid, silver hake, black 
sea bass, Atlantic herring or Atlantic mackerel in or from the area, 
and during the time period, described in Sec. 648.122(b), while in 
possession of midwater trawl or other trawl nets or netting that do not 
meet the minimum mesh restrictions or that are modified, obstructed or 
constricted, if subject to the minimum mesh requirements specified in 
Sec. 648.122 and Sec. 648.123(a), unless the nets or netting are stowed 
in accordance with Sec. 648.23(b).
* * * * *
    3. Section 648.122 is revised to read as follows:


Sec. 648.122  Season and area restrictions.

    (a) Southern Gear Restricted Area. (1) From January 1 through April 
30, all trawl vessels in the Southern Gear Restricted Area that fish 
for or possess non-exempt species as specified in paragraph (a)(2) of 
this section, must fish with nets that have a minimum mesh size of 4.5 
in (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, unless otherwise specified in this section. The Southern 
Gear Restricted Area is an area bounded by straight lines connecting 
the following points in the order stated (copies of a map depicting the 
area are available from the Regional Administrator upon request):

                      Southern Gear Restricted Area
------------------------------------------------------------------------
              Point                      N. lat.            W. long.
------------------------------------------------------------------------
SGA1.............................  38 deg.00'          74 deg.20'
SGA2.............................  38 deg.00'          74 deg.00'
SGA3.............................  40 deg.00'          72 deg.30'
SGA4.............................  40 deg.00'          71 deg.20'
SGA5.............................  38 deg.00'          73 deg.30'
SGA6.............................  38 deg.00'          74 deg.20'
------------------------------------------------------------------------

    (2) Non-exempt species. Unless otherwise specified in paragraph (c) 
of this section, the restrictions specified in paragraph (a)(1) of this 
section apply to vessels in the Southern Gear Restricted Area that are 
fishing for or in possession of the following non-exempt species: Black 
sea bass, Loligo squid, Atlantic mackerel, and silver hake (whiting). 
Vessels fishing for or in possession of all other species of fish and 
shellfish are exempt from these restrictions.
    (b) Northern Gear Restricted Area. (1) From November 1 through 
December 31, all trawl vessels in the Northern Gear Restricted Area 
that fish for or possess non-exempt species as specified in paragraph 
(b)(2) of this section must fish with nets that have a minimum mesh 
size of 4.5 in (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, unless otherwise specified in this section. The Northern 
Gear Restricted Area is an area bounded by straight lines connecting 
the following points in the order stated (copies of a map depicting the 
area are available from the Regional Administrator upon request):

                       Northern Gear Restricted Area
------------------------------------------------------------------------
              Point                     N. Lat.            W. Long.
------------------------------------------------------------------------
NGA1.............................  40 deg.00'         72 deg.50'
NGA2.............................  41 deg.10'         72 deg.40.8' \1\
NGA3.............................  (\2\)              ..................
NGA4.............................  41 deg.10'         71 deg.28.6' \3\
NGA5.............................  41 deg.15'         71 deg.00'
NGA6.............................  41 deg.15'         70 deg.00'
NGA7.............................  41 deg.00'         70 deg.00'
NGA8.............................  41 deg.00'         70 deg.40'
NGA9.............................  40 deg.00'         71 deg.30'
NGA10............................  40 deg.00'         72 deg.50'
------------------------------------------------------------------------
\1\ The intersection of the latitude point at the 3 nautical mile line
  west of Block Island, RI.
\2\ Thence southerly, thence easterly thence northerly along the
  southern diameter of the 3 nautical mile line surrounding Block
  Island, RI.
\3\ The intersection of the latitude point at the 3 nautical mile line
  east of Block Island, RI.

    (2) Non-exempt species. Unless otherwise specified in paragraphs 
(c) of this section, the restrictions specified in paragraph (b)(1) of 
this section apply to vessels in the Northern Gear Restricted Area that 
are fishing for, or in possession of, the following non-exempt species: 
Atlantic herring, black sea bass, Loligo squid, Atlantic mackerel, and 
silver hake (whiting). Vessels fishing for or in possession of all 
other species of fish and shellfish are exempt from these restrictions.
    (c) Transiting. Vessels that are subject to the provisions of the 
Southern and Northern Gear Restricted Areas, as specified in paragraphs 
(a) and (b) of this section, respectively, may transit these areas 
provided that trawl net codends on board of mesh size less than that 
specified in paragraphs (a) and (b) of this section are not available 
for immediate use and are stowed in accordance with the provisions of 
Sec. 648.23(b).
    (d) Exempted Experimental Fishing. The Regional Administrator may 
issue an exempted experimental fishing permit (EFP) under the 
provisions of Sec. 600.745(b), consistent with paragraph (d)(2) of this 
section, to allow any vessel participating in a scup discard mitigation 
research project to engage in any of the following activities: Fish in 
the applicable gear restricted area, use fishing gear that does not 
conform to the regulations, possess non-exempt species specified in 
paragraphs (a)(2) and 9b)(2) of this section, or engage in any other 
activity necessary to project operations for which an exemption from 
regulatory provision is required. Vessels issued an EFP must comply 
with all conditions and restrictions specified in the EFP.
    (1) A vessel participating in an exempted experimental fishery in 
the Southern or Northern Gear Restricted Area specified in paragraphs 
(a) or (b) of this section, respectively, must carry an EFP authorizing 
the activity and any required Federal fishery permit on board.
    (2) The Regional Administrator may not issue an EFP unless the 
Regional Administrator determines that issuance is consistent with the 
objectives of the FMP, the provisions of the Magnuson-Stevens Act, and 
other applicable law and will not:
    (i) Have a detrimental effect on the scup resource and fishery;
    (ii) Cause the quotas for any species of fish for any quota period 
to be exceeded;
    (iii) Create significant enforcement problems; or
    (iv) Have a detrimental effect on the scup discard mitigation 
research project.
    4. In Sec. 648.123, the first sentence of paragraph (a)(3), 
paragraph (a)(4), and the first sentence of paragraph (a)(5) are 
revised to read as follows:


Sec. 648.123  Gear restrictions.

    (a) * * *
    (3) Net modification. The owner or operator of a fishing vessel 
subject to the minimum mesh requirements in Sec. 648.122 and paragraph 
(a)(1) of this section shall not use any device, gear, or material, 
including, but not limited to, nets, net strengtheners, ropes, lines, 
or chafing gear, on the top of the regulated portion of a trawl net. * 
* *

[[Page 4555]]

    (4) Mesh obstruction or constriction. (i) The owner or operator of 
a fishing vessel subject to the minimum mesh restrictions in 
Sec. 648.122 and in subparagraph (a)(1) of this section shall not use 
any mesh construction, mesh configuration, or other means on, in, or 
attached to the top of the regulated portion of the net, as defined in 
paragraph (a)(3) of this section, if it obstructs or constricts the 
meshes of the net in any manner.
    (ii) The owner or operator of a fishing vessel subject to the 
minimum mesh requirements in Sec. 648.122 and in paragraph (a)(1) of 
this section may not use a net capable of catching scup if the bars 
entering or existing the knots twist around each other.
    (5) Stowage of nets. The owner or operator of an otter trawl vessel 
retaining 4,000 lb or more (1,814 kg or more) of scup and subject to 
the minimum mesh requirement in paragraph (a)(1) of this section, and 
the owner or operator of a midwater trawl or other trawl vessel subject 
to the minimum mesh requirement in Sec. 648.122, may not have available 
for immediate use any net, or any piece of net, not meeting the minimum 
mesh size requirement, or mesh that is rigged in a manner that is 
inconsistent with the minimum mesh size. * * *
* * * * *
[FR Doc. 00-1988 Filed 1-24-00; 4:47 pm]
BILLING CODE 3510-22-M