[Federal Register Volume 69, Number 9 (Wednesday, January 14, 2004)]
[Rules and Regulations]
[Pages 2074-2082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-807]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No 031119283-4001-02; I.D. 110703A]
RIN 0648-AQ80

50 CFR Part 648


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; 2004 Specifications

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

ACTION:  Final rule; final 2004 specifications, and preliminary quota 
adjustment; notification of 2004 commercial summer flounder quota 
harvest for Delaware.

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SUMMARY:  NMFS issues final specifications for the 2004 summer 
flounder, scup, and black sea bass fisheries and makes preliminary 
adjustments to the 2004 commercial quotas for these fisheries. This 
final rule specifies allowed harvest limits for both commercial and 
recreational fisheries, including scup possession limits. This action 
also prohibits federally permitted commercial vessels from landing 
summer flounder in Delaware in 2004. Regulations governing the summer 
flounder fishery require publication of this notification to advise the 
State of Delaware, Federal vessel permit holders, and Federal dealer 
permit holders that no commercial quota is available for landing summer 
flounder in Delaware in 2004. The intent of this action is to establish 
allowed 2004 harvest levels and other measures to attain the target 
fishing mortality (F) or exploitation rates, as specified for these 
species in the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan (FMP).

DATES:  This rule is effective from January 14, 2004, through December 
31, 2004.

ADDRESSES:  Copies of the specifications document, including the 
Environmental Assessment, Regulatory Impact Review (RIR), the Initial 
Regulatory Flexibility Analysis (IRFA), and other supporting documents 
for the specification are available from Daniel Furlong, Executive 
Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal 
Building, 300 South Street, Dover, DE 19901-6790. The specifications 
document is also accessible via the Internet at http://www.mafmc.org. 
The Final Regulatory Flexibility Analysis (FRFA) consists of the IRFA, 
public comments and responses contained in this final rule, and the 
summary of impacts and alternatives contained in this final rule. 
Copies of the small entity compliance guide are available from Patricia 
A. Kurkul, Regional Administrator, Northeast Region, National Marine 
Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-2298.

FOR FURTHER INFORMATION CONTACT:  Sarah McLaughlin, Fishery Policy 
Analyst, (978) 281-9279, fax (978) 281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The summer flounder, scup, and black sea bass fisheries are managed 
cooperatively 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 (NC) northward to the 
U.S./Canada border, and scup (Stenotomus chrysops) and black sea bass 
(Centropristis striata) in U.S. waters of the Atlantic Ocean from 
35[deg]13.3' N. lat. (the latitude of Cape Hatteras Lighthouse, Buxton, 
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).
    The regulations outline the process for specifying annually the 
catch limits for the summer flounder, scup, and black sea bass 
commercial and recreational fisheries, as well as other management 
measures (e.g., mesh requirements, minimum fish sizes, gear 
restrictions, possession restrictions, and area restrictions) for these 
fisheries. The measures are intended to achieve the annual targets set 
forth for each species in the FMP, specified either as an F rate or an 
exploitation rate (the proportion of fish available at the beginning of 
the year that are removed by fishing during the year). Once the catch 
limits are established, they are divided into quotas based on formulas 
contained in the FMP. Detailed background information regarding the 
status of the summer flounder, scup, and black sea bass stocks and the 
development of the 2004 specifications for these species was provided 
in the proposed specifications (68 FR 66784, November 28, 2003). That 
information is not repeated here. NMFS makes one correction to the text 
published in the proposed 2004 specifications in this final rule. The 
amount of the summer flounder Total Allowable Landings (TAL) set aside 
for research activities to be conducted by the National Fisheries 
Institute and Rutgers University is 174,750 lb (79.3 mt), rather than 
74,750 lb (40 mt), which was a typographical error.
    NMFS will establish the 2004 recreational management measures for 
summer flounder, scup, and black sea bass by publishing a proposed and 
final rule in the Federal Register at a later date, following receipt 
of the Council's recommendations as specified in the FMP.

Summer Flounder

    The FMP specifies an F of Fmax that is the level of 
fishing that produces maximum yield per recruit. The best available 
scientific information

[[Page 2075]]

indicates that, for 2004, Fmax for summer flounder is 0.26 
(equal to an exploitation rate of about 22 percent from fishing). The 
TAL associated with the target F rate is allocated 60 percent to the 
commercial sector and 40 percent to the recreational sector. The 
commercial quota is allocated to the coastal states based upon 
percentage shares specified in the FMP. The recreational harvest limit 
is specified on a coastwide basis. Recreational measures will be the 
subject of a separate rulemaking early in 2004.
    This final rule implements the specifications contained in the 
proposed rule, i.e., a 28.2-million lb (12,791-mt) summer flounder TAL, 
which is allocated 16.92 million lb (7,675 mt) to the commercial sector 
and 11.28 million lb (5,117 mt) to the recreational sector. This TAL 
was determined by the Council's Summer Flounder Monitoring Committee to 
have at least a 50-percent probability of achieving the Fmax (0.26) 
that is specified in the FMP, if the 2003 TAL and assumed discard 
levels are not exceeded. One research project that would utilize the 
full summer flounder research set-aside (RSA), 174,750 lb (79.3 mt), 
has been recommended for approval. After deducting this RSA, the TAL is 
divided into a commercial quota of 16.82 million lb (7,630 mt) and a 
recreational harvest limit of 11.21 million lb (5,085 mt). If this 
project is not approved by the NOAA Grants Office, the research quota 
associated with the disapproved proposal will be restored to the summer 
flounder TAL through publication of a notice in the Federal Register by 
NMFS.
    Table 1 presents the final 2003 commercial summer flounder quota 
for each state, the reported 2003 landings for each state through 
October 31, 2003, and the resultant 2003 quota overages.

                                         TABLE 1. SUMMER FLOUNDER PRELIMINARY COMMERCIAL 2003 LANDINGS BY STATE
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                                                    2003 Quota\1\             Reported 2003 Landings through 10/31/       Preliminary 2003 Overage
                                       --------------------------------------                  03                  -------------------------------------
                 State                                                       --------------------------------------
                                              lb\2\              kg\2\                lb               kg\3\                lb               kg\3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME                                                (6,980)            (3,125)                  0                  0              6,890              3,125
NH                                                     64                 29                  0                  0                  0                  0
MA                                                907,274            411,537            926,149            420,098             18,875              8,562
RI                                              2,183,907            990,614          1,993,084            904,057                  0                  0
CT                                                314,306            142,568            355,413            161,214             41,107             18,646
NY                                              1,064,869            483,021            988,645            448,446                  0                  0
NJ                                              2,329,010          1,056,432          2,280,738          1,034,536                  0                  0
DE                                               (45,609)           (20,688)              4,479              2,032             50,088             22,720
MD                                                283,951            128,799            357,248            162,047             73,297             33,247
VA                                              2,968,429          1,346,471          2,931,066          1,329,523                  0                  0
NC                                              3,821,924          1,733,613          4,273,519          1,938,456            451,595            204,842
Total\3\                                       13,873,734          6,293,084         14,110,341          6,400,409            641,852            291,142
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\1\ Reflects quotas as published on March 3, 2003 (68 FR9905)
\2\ Parentheses indicate a negative number.
\3\ Total quota is the sum of all states having allocation. A state with a negative number has an allocation of zero (0). Total quota and total landings
  do not equal the overage because they reflect positive quota balances in several states.

    Based upon 2003 landings through October 31, 2003, NMFS adjusts the 
2004 commercial quotas for 2003 quota overages. The commercial summer 
flounder percent share, 2004 initial quota (with and without the 
research set-aside deduction), 2003 quota overages, and the adjusted 
quotas (with and without the research set-aside deduction) for 2004, by 
state, are presented in Table 2.
    The FMP does not allocate Pennsylvania a share of the annual summer 
flounder quota. However, in June 2003, 6,880 lb (3,125 kg) of summer 
flounder were landed in Pennsylvania; these landings are under 
investigation by the NMFS Office of Law Enforcement. The Federal 
regulations regarding summer flounder quotas do not address the 
incidence of summer landings in a state that does not have a quota 
allocation, or the accounting of such landings against the commercial 
quota. NMFS does not anticipate that the amount of summer flounder 
landings in Pennsylvania, which is negligible relative to the overall 
2003 commercial quota, will affect the upcoming annual stock assessment 
for the purpose of recommending a TAL for the 2005 fishing year. NMFS 
and the Commission are concerned that the landing of summer flounder in 
states without an allocation undermines the Interstate and Federal FMPs 
for summer flounder, scup, and black sea bass. NMFS intends to work 
with the Commission to further address this issue.
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    The Commission has established a system whereby 15 percent of each 
state's quota may be voluntarily set aside each year to enable vessels 
to land an incidental catch allowance after the directed fishery in a 
state has been closed. The intent of the incidental catch set-aside is 
to reduce discards by allowing fishermen to land summer flounder caught 
incidentally in other fisheries during the year, while ensuring that 
the state's overall quota is not exceeded. These Commission set-asides 
are not included in these 2004 final specifications because NMFS does 
not have authority to establish such subcategories.

Delaware Summer Flounder Closure

    Table 2 above indicates that, for Delaware, the amount of the 2003 
summer flounder quota overage (inclusive of overharvest from 2002) is 
greater than the amount of commercial quota allocated to Delaware for 
2004. As a result, there is no quota available for 2004 in Delaware. 
The regulations at Sec.  648.4(b) provide that Federal permit holders, 
as a condition of their permit, must not land summer flounder in any 
state that the Regional Administrator has determined no longer has 
commercial quota available for harvest. Therefore, effective January 1, 
2004, landings of summer flounder in Delaware by vessels holding 
commercial Federal fisheries permits are prohibited for the 2004 
calendar year, unless additional quota becomes available through a 
quota transfer and is announced in the Federal Register. Federally 
permitted dealers are advised that they may not purchase summer 
flounder from federally permitted vessels that land in Delaware for the 
2004 calendar year, unless additional quota becomes available through a 
transfer, as mentioned above.

Scup

    The target exploitation rate for scup for 2004 is 21 percent. The 
FMP specifies that the Total Allowable Catch (TAC) associated with a 
given exploitation rate be allocated 78 percent to the commercial 
sector and 22 percent to the recreational sector. Scup discard 
estimates are deducted from both sectors' TACs to establish TALs for 
each sector (TAC less discards = TAL). The commercial TAL is then 
allocated on a percentage basis to three quota periods, as specified in 
the FMP: Winter I (January-April)--45.11 percent; Summer (May-October)-
-38.95 percent; and Winter II (November-December)--15.94 percent. The 
recreational harvest limit is allocated on a coastwide basis. 
Recreational measures will be the subject of a separate rulemaking 
early in 2004.
    This final rule implements the specifications contained in the 
proposed rule, i.e., an 18.65-million lb (8,460-mt) scup TAC and a 
16.5-million lb (7,484-mt) scup TAL. Two research projects that would 
utilize the full scup RSA, 160,000 lb (73 mt), have been recommended 
for approval. After deducting this RSA, the TAL is divided into a 
commercial quota of 12.35 million lb (5,600 mt) and a recreational 
harvest limit of 3.99 million lb (1,812 mt). If either of these 
projects is not approved by the NOAA Grants Office, the research quota 
associated with the disapproved proposal(s) will be restored to the 
scup TAL through publication of a notice in the Federal Register by 
NMFS.
    Table 3 presents the final 2003 commercial scup quota for each 
period and the reported 2003 landings for the 2003 Winter I and Summer 
periods; there was no overage of the Winter I or Summer quota. On 
November 3, 2003 (68 FR 62250), NMFS published the final rule to 
implement Framework 3 to the FMP, and announced a transfer of quota 
from Winter I to Winter II 2003. Per the quota counting procedures, 
after June 30, 2004, NMFS will compile all available landings data for 
Winter II 2003 and compare the landings to the Winter II 2003 
allocation, as adjusted. Any overages will be determined and required 
deductions will be made to the Winter II 2004 allocation.

                                           TABLE 3.-SCUP PRELIMINARY 2003 COMMERCIAL LANDINGS BY QUOTA PERIOD
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    2003 Quota\1\             Reported 2003 Landings through 10/31/  Preliminary Overages as of 10/31/03
                                       --------------------------------------                  03                  -------------------------------------
             Quota Period                                                    --------------------------------------
                                                lb                 kg                 lb                 kg                 lb                 kg
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter I                                        5,602,495          2,541,275          3,730,118          1,691,970                  0                  0
Summer                                          4,521,879          2,051,111          4,467,940          2,026,644                  0                  0
Winter II                                       1,979,689            897,981             n/a\2\             n/a\2\             n/a\2\             n/a\2\
Total                                          12,104,063          5,490,367          8,198,058          3,718,614  .................  .................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Reflects quotas as published on March 3, 2003 (68 FR 9905).
\2\ Not applicable.

    Table 4 presents the commercial scup percent share, 2004 TAC, 
projected discards, 2004 initial quota (with and without the research 
set-aside deduction), and possession limits, by quota period. To 
achieve the commercial quotas, this final rule implements a Winter I 
period (January-April) per trip possession limit of 15,000 lb (6.8 mt), 
and a Winter II period (November-December) per trip possession limit of 
1,500 lb (680 kg). The Winter I per trip possession limit will be 
reduced to 1,000 lb (454 kg) when 80 percent of the commercial quota 
allocated to that period is projected to be harvested.
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[[Page 2079]]

    The final rule to implement Framework 3 to the FMP (68 FR 62250, 
November 3, 2003) implemented a process, for years in which the full 
Winter I commercial scup quota is not harvested, to allow unused quota 
from the Winter I period to be rolled over to the quota for the Winter 
II period. In any year that NMFS determines that the landings of scup 
during Winter I are less than the Winter I quota for that year, NMFS 
will, through a notification in the Federal Register, increase the 
Winter II quota for that year by the amount of the Winter I 
underharvest, and adjust the Winter II possession limits consistent 
with the amount of the quota increase, based on the possession limits 
presented in Table 5.

          TABLE 5. POTENTIAL INCREASE IN WINTER II POSSESSION LIMITS BASED ON THE AMOUNT OF SCUP ROLLED OVER FROM WINTER I TO WINTER II PERIOD
--------------------------------------------------------------------------------------------------------------------------------------------------------
            Initial Winter II Possession Limit                 Rollover from Winter I to Winter II       Increase in Initial         Final Winter II
-----------------------------------------------------------------------------------------------------   Winter II Possession     Possession Limit after
                                                                                                                Limit            Rollover from Winter I
                                                                                                     --------------------------       to Winter II
                      lb                            kg                   lb                   mt                               -------------------------
                                                                                                           lb           kg           lb           kg
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1500                                                   680                    0-499,999        0-227            0            0         1500          680
1500                                                   680              500,000-999,999      227-454          500          227         2000          907
1500                                                   680          1,000,000-1,499,999      454-680         1000          454         2500         1134
1500                                                   680          1,500,000-1,999,999      680-907         1500          680         3000         1361
1500                                                   680          2,000,000-2,500,000    907-1,134         2000          907         3500         1587
--------------------------------------------------------------------------------------------------------------------------------------------------------

Black Sea Bass

    For 2004, the target exploitation rate for black sea bass is 25 
percent. The FMP specifies that the TAL associated with a given 
exploitation rate be allocated 49 percent to the commercial sector and 
51 percent to the recreational sector. The recreational harvest limit 
is allocated on a coastwide basis. Recreational measures will be the 
subject of a separate rulemaking early in 2004.
    This final rule implements the specifications contained in the 
proposed rule, i.e., an 8-million lb (3,629-mt) black sea bass TAL. 
Three research projects that would utilize the full black sea bass RSA, 
134,792 lb (61 mt), have been recommended for approval by the Council. 
The black sea bass TAL, having been adjusted to reflect this RSA, is 
divided into a commercial quota of 3.86 million lb (1,751 mt) and a 
recreational harvest limit of 4.01 million lb (1,819 mt). If any of 
these projects is not approved by the NOAA Grants Office, the research 
quota associated with the disapproved proposal(s) will be restored to 
the black sea bass TAL through publication of a notice in the Federal 
Register by NMFS.
    The final rule to implement Amendment 13 to the FMP (68 FR 10181, 
March 4, 2003) established an annual (calendar year) coastwide quota 
for the commercial black sea bass fishery to replace the quarterly 
quota allocation system. The quota counting procedures were accordingly 
revised to specify that landings in excess of the annual coastwide 
quota are to be deducted from the quota allocation for the following 
year based on landings for the current year through September 30, and 
landings for the previous calendar year that were not included when the 
overage deduction was made in the final rule that established the 
annual coastwide quota for the current year. Table 6 presents the 
initial 2004 commercial quota, the 2004 commercial quota less the 
research set-aside, the 2003 quota overage calculated as described 
above, and the resulting final adjusted 2004 commercial quota.

                                           TABLE 6. FINAL BLACK SEA BASS COMMERCIAL QUOTA ALLOCATIONS FOR 2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
                            2004 Initial Quota                              2004 Quota Less Research   Quota Overages (through    Final (Adjusted) 2004
---------------------------------------------------------------------------         Set-aside                 09/30/03)                   Quota
                                                                           -----------------------------------------------------------------------------
                             (lb)                                  (kg)         (lb)         (kg)         (lb)         (kg)         (lb)         (kg)
--------------------------------------------------------------------------------------------------------------------------------------------------------
3,920,000                                                        1,778,100    3,853,951    1,748,141       85,376       38,726    3,768,575    1,709,414
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Changes From Proposed Rule

    In the proposed rule for the 2004 specifications (68 FR 66784), 
NMFS proposed to implement the Council's recommendations regarding 
access to the Gear Restricted Areas (GRAs), with some exceptions, i.e., 
most notably that the Scup GRA Exemption Program (as implemented in 
2003 (68 FR 12814, March 18, 2003)) would not resume once a discard 
trigger is met, and that GRA monitors would be placed on 100 percent of 
participating vessels.
    NMFS has consistently supported the concept of gear modifications 
to reduce scup discards, if such measures can be justified on the basis 
of sound scientific review. However, many concerns remain about the 
Scup GRA Access Program that was recommended by the Council in 2003 and 
described in the proposed rule. First, the recommended amounts of scup 
discards to trigger closure of the GRAs could easily be reached in just 
a few (i.e., less than 10) small-mesh fishing trips, given known co-
occurrence levels of Loligo and scup. Even with the recommendation of 
the Northeast Fisheries Science Center (Center) for 100-percent 
coverage (whether by monitors or observers), effective closure of the 
Scup GRA Access Program without significant risk of exceeding the 
trigger amounts may not be possible. Second, in order to ensure 
consistency and reliability of data collected on participating vessels, 
the use of NMFS-certified observers is preferable to the use of non-
NMFS-certified GRA monitors. Third, the current regulations are 
intended to provide sufficient data to evaluate the effectiveness of 
modified gear in the GRAs. Industry representatives have repeatedly 
commented that, if the effectiveness of modified gear in reducing scup 
discards can be demonstrated, the GRAs should be

[[Page 2080]]

eliminated or modified to be less restrictive. As proposed, the Scup 
GRA Access Program would not require the use of modified gear and would 
not provide the related collection of information regarding fishing 
practices and results. In January 2004, the Center will begin a 
quantitative assessment of the effectiveness of a 5 3/4-inch (14.6-cm) 
square mesh cylinder, installed as an extension of a Loligo squid net, 
in reducing scup bycatch and in retaining commercial quantities of 
Loligo. Until gear modifications, or other suitable measures, are 
demonstrated to reduce sufficiently the bycatch of scup in the 
fisheries for non-exempt species, NMFS considers the GRAs to be 
necessary. Lastly, there has not been sufficient technical analysis of 
the Scup GRA Access Program, as proposed. The Council's recommended 
trigger amounts, 50,000 lb (22.68 mt) and 70,000 lb (31.75 mt) in the 
Northern and Southern GRAs, respectively, were not based on science, 
and may not be appropriate trigger levels, either from a management/
implementation perspective, or from a biological perspective.
    Therefore, for the reasons stated above, NMFS has disapproved the 
Scup GRA Access Program. This final rule maintains the Scup GRA 
Exemption Program, as established in the 2003 final rule. The cost of 
each at-sea observer day to each participating vessel will be $1,150. 
The $1,150 per day cost accounts for the total program costs per at-sea 
observer day, including administrative and other costs associated with 
the observer program.

Comments and Responses

    Seven comments were received from commercial Loligo industry 
participants and/or representatives, and one comment was received from 
the Council, regarding the proposed measures.
    Comment 1: Two of the commenters support the proposed summer 
flounder TAL, but disagree with the stock level estimated by NMFS to 
produce the maximum sustainable yield (MSY) on a continuing basis 
(234.6 million lb), based on the argument that it is not an observed 
value and, therefore, may not be a valid target. The commenters add 
that industry representatives and scientists have raised concerns on 
several occasions regarding the stock's density-dependent responses, 
and request that the stock size assumptions to achieve MSY be re-
evaluated as soon as possible. The commenters also urge NMFS and the 
Council to initiate changes to the regulations to allow for 
recreational overharvest from the current year to be deducted from the 
quota for the following year.
    Response: The Overfishing Definition Review Panel recommended that 
the Council base MSY proxy reference points on yield-per-recruit 
analysis, and this recommendation was adopted in formulating the FMP 
Amendment 12 overfishing definition, based on the 1999 assessment. The 
median number of summer flounder recruits was estimated from the 1999 
Virtual Population Analysis for the 1982-1998 period, and MSY was 
estimated based on this information. As a result of the Council's 
Science and Statistical Committee (SSC) peer review, the reference 
points were retained in the 2001 stock assessment. In the review of the 
2002 stock assessment, the 35th Northeast Regional Stock Assessment 
Review Committee (SARC 35) concluded that revision of the reference 
points was not warranted at that time due to the continuing stability 
of the input data and resulting reference point estimates. These 
reference points were retained in the 2003 assessment, as well. The 
Stock Assessment Workshop Southern Demersal Working Group, the 
scientific body responsible for the summer flounder assessment, has 
continued to monitor the biological characteristics of the stock in 
accordance with SARC and SSC recommendations. The biological reference 
points will continue to be updated and potential revisions would be 
subject to peer review as part of the continuing assessment process. 
The next assessment update for summer flounder is scheduled for review 
by the Council's Monitoring Committee during the summer of 2004. The 
next review of the summer flounder assessment by the SARC is scheduled 
for the summer of 2005.
    The Council has considered the issue regarding recreational 
overages on several occasions without identifying an alternative method 
of calculating recreational landings or an appropriate means of using 
the Marine Recreational Fisheries Statistical Survey (MRFSS) data to 
calculate overages. The fact that commercial and recreational fisheries 
are inherently different is the basis for their differing regulatory 
requirements. Overages in the commercial fishery, which are easily 
calculated, are deducted from the appropriate states' quotas the 
following year. Recreational catches, which are estimated based upon 
the MRFSS methodology, are used as a basis to formulate recreational 
management measures (minimum fish size, individual possession limits, 
and fishing seasons) to constrain the recreational catch to the harvest 
limit set for the following year. This is done in part because 
recreational data are substantially incomplete at the time the 
recreational harvest limit must be specified by the Council. The 
procedures used by the Council and NMFS since quota management was 
established in 1993 has never compensated in subsequent years for 
recreational landings in excess of the recreational harvest limit.
    Comment 2: Three of the commenters support a shift of the inside 
and outside, i.e., shoreward and seaward, boundaries of the Southern 
GRA by 2 minutes (1.75 miles (3.2 km)) west to allow the Loligo fleet 
greater fishing opportunities and to demonstrate that the gear 
modifications and fishing practices of the Loligo fleet over the past 
3-4 years (not including use of an escapement panel) can result in a 
directed Loligo fishery with little bycatch of scup. The commenters 
also requested that NMFS determine how many observer trips in the area 
that would be opened to the east of the adjusted Southern GRA would be 
needed to provide adequate scup discard estimates in order to support 
this modification.
    Response: In response to a previous request by the commercial 
Loligo industry to move the boundaries of the Southern GRA, the Council 
evaluated distributional data from the Northeast Fisheries Science 
Center's Winter and Spring trawl surveys and did not support the 
change. In a July 2003 report, the Council stated that the Southern GRA 
encompasses the geographic range occupied by Loligo and scup during the 
effective period, and that the portion of the Southern GRA that would 
be open to small-mesh trawls if the boundaries were shifted coincides 
with both recent survey catches of scup and with scup-Loligo overlap. 
The suggestion to move the boundaries 2 minutes to the west was 
recently directed by the commenter to the Council and Center for their 
consideration, but was not supported. Because of the spatial resolution 
of catch data, it is difficult to justify the suggested shift of the 
boundaries. Further, in the case of a shoreward shift of the southern 
GRA, 100-percent observer coverage would be required to account for the 
discards of scup in the area that would be opened to the east, due to 
the inter-annual and spatial variability in the co-occurrence of the 
two species. Should changes to the Northern or Southern GRA be 
determined to be appropriate, i.e., supported by the available data, 
they should be initiated by the Council through the framework 
adjustment process.

[[Page 2081]]

    Comment 3: Four of the commenters support the Scup GRA Access 
program as proposed, with the exception of the requirement for GRA 
monitors to be carried by 100 percent of participating vessels, as this 
level exceeds observer requirements used by NMFS to monitor fishing 
activities in other regions, exceeds the Atlantic Coastal Cooperative 
Statistics Program (ACCSP) standards, and may result in a significant 
economic burden on the industry. The comment from the Council contains 
a request for 20-percent coverage. Two of these four commenters also 
express concern that if there are not enough GRA monitors available to 
meet the potential demand, NMFS may deny access to qualified vessels to 
the GRAs. Another commenter supports the proposed rule but provided 
recommendations regarding the administration of the Scup GRA Access 
Program, including the process of placing monitors on vessels, Vessel 
Monitoring System (VMS) reporting requirements, and action to be taken 
by NMFS when the discard triggers are met.
    Response: The Scup GRA Access Program, both as recommended by the 
Council, and as proposed, has been disapproved. Under the existing 100-
percent observer coverage program, a maximum of 72 vessels are expected 
to apply for an authorization letter (based on the average number of 
vessels making directed Loligo trips from 1996 through 1999) and the 
maximum number of trips would be 209. The actual total number of trips 
required to carry an observer under the existing program would vary, 
depending upon the individual decisions of vessel owners regarding the 
potentially increased profitability of fishing in the GRAs versus 
additional observer costs. NMFS anticipates that the Scup GRA Exemption 
Program, in combination with the Center's upcoming study on 5 3/4-inch 
(14.6-cm) square mesh cylinders described above, will facilitate the 
collection of information necessary to evaluate the effectiveness of 
gear modifications in reducing scup bycatch in the fisheries for non-
exempt species (Loligo, black sea bass, and silver hake (whiting)).
    Comment 4: Four of the commenters express opposition to the 
requirement for each participating vessel to pay for the full cost of 
carrying a GRA monitor or observer. Two of the four commenters included 
the recommendation that if NMFS does not pay the costs of monitors, 
NMFS should devise a method to spread the cost of GRA monitor coverage 
equally among all vessels participating in the GRAs. The other two 
commenters state that they could support a nominal fee to cover the 
costs of Scup GRA monitors if the amount is reasonable for the services 
provided, and if the required number of observed trips is the number 
necessary to generate a statistically sound estimate of scup discards.
    Response: The Scup GRA Exemption Program, which was requested by 
the industry to provide NMFS more complete data to evaluate the 
effectiveness of gear modifications in reducing discards, is dependent 
on observer coverage. The provision that vessels pay for observers was 
discussed at the August 2002 Council meeting.
     As indicated above, the cost of one at-sea observer day would be 
$1,150. This cost would apply to all participating vessels, so a cost-
sharing arrangement would not be appropriate. The $1,150 per day cost 
accounts for the total program costs per at-sea observer day, including 
administrative and other costs associated with the observer program. 
The Center has recommended 100-percent observer coverage due to the 
inter-annual and spatial variability in the co-occurrence of scup and 
Loligo.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This action establishes annual quotas for the summer flounder, 
scup, and black sea bass fisheries and possession limits for the 
commercial scup fishery. If implementation of the specifications is 
delayed, NMFS will be prevented from carrying out its function of 
preventing overfishing of these three species. The fisheries covered by 
this action will begin making landings on January 1, 2004. If a delay 
in effectiveness is required, and a quota were to be harvested during a 
delayed effectiveness period, the lack of effective quota 
specifications would prevent NMFS from closing the fishery. The scup 
and black sea bass fisheries are expected to be active at the start of 
the fishing season in 2004. In addition, the Delaware summer flounder 
fishery would be open for fishing but in a negative quota situation. 
This likely would result in large overages that would have 
distributional effects on other quota periods and might potentially 
disadvantage some gear sectors. Therefore, the Assistant Administrator 
for Fisheries, NOAA, finds good cause under 5 U.S.C. 553(d)(3) to waive 
the 30-day delayed effectiveness period for this rule.
    Included in this final rule is the Final Regulatory Flexibility 
Analysis (FRFA) prepared pursuant to 5 U.S.C. 604(a). The FRFA 
incorporates the IRFA, the comments and responses to the proposed rule, 
and the analyses completed in support of this action. A copy of the 
IRFA is available from the Council (see ADDRESSES).
    The preamble to the proposed rule included a detailed summary of 
the analyses contained in the IRFA, and that discussion is not repeated 
here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being taken, and 
the objectives of and legal basis for this final rule are explained in 
the preambles to the proposed rule and this final rule and are not 
repeated here.

Summary of Significant Issues Raised in Public Comments

    Eight comments were received on the measures contained in the 
proposed rule. The commenters did not refer specifically to the IRFA, 
but five of the commenters discussed the economic impacts on small 
entities, especially as they relate to scup observer coverage. NMFS has 
disapproved the Scup GRA Access Program and instead maintains the Scup 
GRA Exemption Program as implemented in 2003. No changes to the 
proposed rule were required to be made as a result of public comments. 
For a summary of the comments received, refer to the section above 
titled ``Comments and Responses.''

Description and Estimate of Number of Small Entities to which Rule Will 
Apply

    The categories of small entities likely to be affected by this 
action include commercial and charter/party vessel owners holding an 
active Federal permit for summer flounder, scup, or black sea bass, as 
well as owners of vessels that fish for any of these species in state 
waters. The Council estimates that the 2004 quotas could affect 2,122 
vessels that held a Federal summer flounder, scup, and/or black sea 
bass permit in 2002. However, the more immediate impact of this rule 
will likely be felt by the 1,041 vessels that actively participated 
(i.e., landed these species) in these fisheries in 2002.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance 
requirements are included in this final rule.

[[Page 2082]]

Description of the Steps Taken to Minimize Economic Impact on Small 
Entities

    Economic impacts are being minimized to the extent practicable with 
the quota specifications being implemented in this final rule, while 
being consistent with the target fishing mortality rates or target 
exploitation rates specified in the FMP. Specification of commercial 
quotas and possession limits is constrained by the conservation 
objectives of the FMP, and implemented at 50 CFR part 648 under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act).
    The economic analysis assessed the impacts of the various 
management alternatives. In the Environmental Assessment (EA), the no 
action alternative is defined as follows: (1) No proposed 
specifications for the 2004 summer flounder, scup, and black sea bass 
fisheries would be published; (2) the indefinite management measures 
(minimum sizes, bag limits, possession limits, permit and reporting 
requirements, etc.) would remain unchanged; (3) there would be no quota 
set-aside allocated to research in 2004; (4) the existing GRA 
regulations would remain in place for 2004; and (5) there would be no 
specific cap on the allowable annual landings in these fisheries (i.e., 
there would be no quota). Implementation of the no action alternative 
would be inconsistent with the goals and objectives of the FMP, its 
implementing regulations, and the Magnuson-Stevens Act. In addition, 
the no action alternative would substantially complicate the approved 
management program for these fisheries, and would very likely result in 
overfishing of the resources. Therefore, the no action alternative is 
not considered to be a reasonable alternative to the preferred action 
and is not analyzed in the EA/RIR/IRFA/FRFA.
    Alternative 1 (preferred) consists of the harvest limits proposed 
by the Council and the Commission's Summer Flounder, Scup, and Black 
Sea Bass Management Board (Board) for summer flounder, scup, and black 
sea bass. Alternative 2 consists of the most restrictive quotas (i.e., 
lowest landings) considered by the Council and the Board for all of the 
species. Alternative 3 consists of the least restrictive quotas (i.e., 
highest landings) considered by the Council and Board for all three 
species. Although Alternative 3 would result in higher landings for 
2004, it would also likely exceed the biological targets specified in 
the FMP.
    Table 7 evaluates three alternative combinations of summer 
flounder, scup, and black sea bass landings (commercial and 
recreational).

                                 Table 7. Comparison (in million lb) of the alternatives of quota combinations reviewed
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                      2004 Final       2004 Preliminary
                                                                 2004          2004 RSA         2003 Commercial        Adjusted          Recreational
                                                             Initial TAL                         Quota Overage     Commercial Quota      Harvest Limit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Quota Alternative 1 (Preferred)
Summer Flounder Preferred Alternative                              28.20                0.17                0.64               16.22               11.21
Scup Preferred Alternative (Status quo)                            16.50                0.16                0.00               12.35                3.99
Black Sea Bass Preferred Alternative                                8.00                0.13                0.09                3.77                4.01
Quota Alternative 2 (Most Restrictive Preferred)
Summer Flounder Alternative 2 (Status Quo)                         23.30                0.17                0.64               13.28                9.25
Scup Alternative 2                                                 11.00                0.16                0.00                8.06                2.78
Black Sea Bass Alternative 2 (Status Quo)                           6.80                0.13                0.09                3.18                3.40
Quota Alternative 3 (Least Restrictive)
Summer Flounder Alternative 3                                      30.10                0.17                0.05               17.36               11.97
Scup Alternative 3                                                 22.00                0.16                0.00               16.64                5.20
Black Sea Bass Alternative 3                                        8.90                0.13                0.09                4.21                4.47
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In summary, the 2004 commercial quotas and recreational harvest 
limits contained in the Preferred Alternative would result in 
substantial increases in the summer flounder and black sea bass 
landings and a small increase in scup landings, relative to 2003; 
percentage changes associated with each alternative are discussed in 
the proposed rule. The measures contained in the Preferred Alternative 
were chosen because they provide for the maximum level of landings that 
still achieve the fishing mortality and exploitation targets specified 
in the FMP. While the commercial quotas and recreational harvest limits 
specified in Alternative 3 would provide for even larger increases in 
landings and revenues, they would not achieve the fishing mortality and 
exploitation targets specified in the FMP.
    The possession limits for scup were chosen in part because they are 
intended to provide for economically viable fishing trips that will be 
equitably distributed over the entire quota period.
    The economic effects of the existing GRAs will not change as a 
result of this final rule. As indicated in the 2003 final rule to 
implement the Scup GRA Exemption Program, it is expected that 
individual vessels will assess changes in costs and revenues to their 
operations before they participate in this program. The increase in the 
cost of an at-sea observer day, as noted above, will understandably be 
a factor in a vessel owner's decision to participate in the Scup GRA 
Exemption Program.
    Finally, the revenue decreases associated with the RSA program are 
expected to be minimal, and are expected to yield important long-term 
benefits associated with improved fisheries data. It should also be 
noted that fish harvested under the RSAs would be sold, and the profits 
would be used to offset the costs of research. As such, total gross 
revenue to the industry would not decrease substantially if the RSAs 
are utilized.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: January 8, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 04-807 Filed 1-9-04; 4:16 pm]
BILLING CODE 3510-22-S