[Federal Register Volume 70, Number 2 (Tuesday, January 4, 2005)]
[Rules and Regulations]
[Pages 303-311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28752]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 041110317-4364-02; I.D. 110404B]
RIN 0648-AR51

50 CFR Part 648


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; 2005 and 2006 Summer Flounder 
Specifications; 2005 Scup and Black Sea Bass Specifications

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

ACTION: Final rule; final specifications for the 2005 and 2006 summer 
flounder fisheries and for the 2005 scup and black sea bass fisheries, 
and preliminary 2005 quota adjustment; notification of 2005 commercial 
summer flounder quota harvest for Delaware.

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SUMMARY: NMFS issues final specifications for the 2005 and 2006 summer 
flounder fisheries and for the 2005 scup and black sea bass fisheries, 
and makes preliminary adjustments to the 2005 commercial quotas for 
these fisheries. This final rule specifies allowed harvest limits for 
both commercial and recreational fisheries, including scup possession 
limits. This action prohibits federally permitted commercial vessels 
from landing summer flounder in Delaware in 2005. Regulations governing 
the summer

[[Page 304]]

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 2005. This action also makes changes to the 
regulations regarding the commercial scup fishery. The intent of this 
action is to establish allowed 2005 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), and to reduce bycatch and improve 
the efficiency of the commercial scup fishery.

DATES: This rule is effective December 30, 2004.

ADDRESSES: Copies of the specifications document, including the 
Environmental Assessment (EA), 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.nero.noaa.gov. 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.

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 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 2005 specifications for these fisheries (and 2006 
summer flounder specifications) was provided in the proposed 
specifications (69 FR 70414, December 6, 2004). That information is not 
repeated here.
    NMFS will establish the 2005 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 a target F of Fmax, that is, the level 
of fishing that produces maximum yield per recruit. The best available 
scientific information indicates that, for 2005 and 2006, 
Fmax for summer flounder is 0.26 (equal to an exploitation 
rate of about 22 percent from fishing). The Total Allowable Landings 
(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 2005.
    This final rule implements the specifications contained in the 
proposed rule, a summer flounder TAL of 30.3 million lb (13,744 mt) for 
2005 and 33.0 million lb (14,969 mt) for 2006. The TAL for 2005 is 
allocated 18.18 million lb (8,246 mt) to the commercial sector and 
12.12 million lb (5,498 mt) to the recreational sector, and the TAL for 
2006 is allocated 19.8 million lb (8,981 mt) to the commercial sector 
and 13.2 million lb (5,987 mt) to the recreational sector. This TAL was 
determined by the Council's Summer Flounder Monitoring Committee to 
have at least a 75-percent probability of achieving the Fmax 
(0.26) that is specified in the FMP, if the 2004 TAL and assumed 
discard levels are not exceeded. Two research projects that would 
utilize the full summer flounder research set-aside (RSA) of 353,917 lb 
(161 mt) have been conditionally approved by NMFS and are currently 
awaiting notice of award. After deducting this RSA, the TAL is divided 
into a commercial quota of 17.97 million lb (8,151 mt) and a 
recreational harvest limit of 11.98 million lb (5,434 mt). If either 
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.
    Consistent with the revised quota setting procedures for the FMP 
(67 FR 6877, February 14, 2002), summer flounder overages are 
determined based upon landings for the period January-October 2004, 
plus any previously unaccounted for landings from January-December 
2003. Table 1 summarizes, for each state, the commercial summer 
flounder percent share, the 2005 commercial quota (both initial and 
less the RSA), the 2004 quota overages as described above, and the 
resulting final adjusted 2005 commercial quota less the RSA.

[[Page 305]]



                                     Table 1.--Final State-By-State Commercial Summer Flounder Allocations for 2005
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          2005 initial quota      2005 initial quota      2004 quota overages     Adjusted 2005 quota,
                                              Percent  ------------------------        less RSA         (through 10/31/04) \1\        less RSA \2\
                   State                       share                           -------------------------------------------------------------------------
                                                            lb          kg          lb          kg          lb          kg           lb           kg
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME........................................     0.04756       8,646       3,922       8,547       3,877           0           0       8,547        3,877
NH........................................     0.00046          84          38          83          37           0           0          83           37
MA........................................     6.82046   1,239,960     562,442   1,225,637     555,945      48,083      21,810   1,177,554      534,130
RI........................................    15.68298   2,851,166   1,293,280   2,818,232   1,278,341           0           0   2,818,232    1,278,341
CT........................................     2.25708     410,337     186,128     405,597     183,978           0           0     405,597      183,978
NY........................................     7.64699   1,390,223     630,601   1,374,164     623,317           0           0   1,374,164      623,317
NJ........................................    16.72499   3,040,603   1,379,209   3,005,481   1,363,277           0           0   3,005,481    1,363,277
DE........................................     0.01779       3,234       1,467       3,197       1,450      54,536      24,737     (51,339)     (23,287)
MD........................................     2.03910     370,708     168,152     366,426     166,210      19,028       8,631     347,398      157,577
VA........................................    21.31676   3,875,387   1,757,864   3,830,622   1,737,559           0           0   3,830,622    1,737,559
NC........................................    27.44584   4,989,654   2,263,292   4,932,017   2,237,148           0           0   4,932,017    2,237,148
                                           -------------
    Total \3\.............................      100.00  18,180,002   8,246,395  17,970,002   8,151,139     121,647      55,178  17,899,695    8,119,165
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 2004 Quota overage is determined through comparison of landings for January through October 2004, plus any landings in 2003 in excess of the 2003
  quota (that were not previously addressed in the 2004 specifications), with the final 2004 quota (as revised) for each state (69 FR 10937, March 9,
  2004). For Delaware, includes continued repayment of overharvest from 2003.
\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). Kilograms are as converted
  from pounds and may not necessarily add due to rounding.

    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 2005 and 2006 final summer flounder 
specifications because NMFS does not have authority to establish such 
subcategories.

Delaware Summer Flounder Closure

    Table 1 above indicates that, for Delaware, the amount of the 2004 
summer flounder quota overage (inclusive of overharvest from 2003) is 
greater than the amount of commercial quota allocated to Delaware for 
2005. As a result, there is no quota available for 2005 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 December 
30, 2004, landings of summer flounder in Delaware by vessels holding 
commercial Federal fisheries permits are prohibited for the 2005 
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 
2005 calendar year, unless additional quota becomes available through a 
transfer, as mentioned above.
    For 2006, because information pertaining to the potential amount of 
RSA is unknown, RSA is conservatively estimated as 3 percent of the TAL 
(the maximum allowed under the FMP), i.e., 990,000 lb (449 mt). After 
deducting the RSA, the TAL for 2006 will be divided into a commercial 
quota of 19.21 million lb (8,714 mt) and a recreational harvest limit 
of 12.80 million lb (5,806 mt). Table 2 shows, for each state, the 
commercial summer flounder percent share, the 2006 commercial quota 
(both initial and less the RSA, which is estimated at this point and 
which will be revised in the proposed specifications for 2006). These 
state quota allocations are preliminary and are subject to a reduction 
if there are any overages of a state's quota for the previous fishing 
year (using the landings information and procedures described earlier). 
Any commercial quota adjustments to account for 2005 overages will be 
published in the Federal Register in the final rule implementing the 
2006 specifications.

                                         Table 2.--2006 Proposed Initial Summer Flounder State Commercial Quotas
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Initial quota \1\              Initial quota less RSA \1\
                             State                                Percent share  -----------------------------------------------------------------------
                                                                                         lb              kg \2\              lb              kg \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME............................................................           0.04756             9,417             4,271             9,136             4,144
NH............................................................           0.00046                91                41                88                40
MA............................................................           6.82046         1,350,451           612,561         1,310,210           594,308
RI............................................................          15.68298         3,105,230         1,408,523         3,012,700         1,366,552
CT............................................................           2.25708           446,902           202,713           433,585           196,673
NY............................................................           7.64699         1,514,104           686,793         1,468,987           666,328
NJ............................................................          16.72499         3,311,548         1,502,108         3,212,871         1,457,349
DE............................................................           0.01779             3,522             1,598             3,417             1,550
MD............................................................           2.03910           403,742           183,136           391,711           177,679
VA............................................................          21.31676         4,220,718         1,914,505         4,094,950         1,857,457
NC............................................................          27.44584         5,434,276         2,464,972         5,272,346         2,391,520
                                                               -------------------

[[Page 306]]

 
    Total.....................................................            100.00        19,800,002         8,981,222        19,210,002        8,713,600
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\1\ State quotas are preliminary and will be adjusted as necessary in the 2006 final quota based on any overage of a state's quota for the previous
  fishing year.
\2\ Kilograms are as converted from pounds and do not add to the converted total due to rounding.

Scup

    The target exploitation rate for scup for 2005 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 2005.
    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. After deducting 303,675 lb (138 
mt) of RSA for the three approved research projects, the TAL is divided 
into a commercial quota of 12.23 million lb (5,547 mt) and a 
recreational harvest limit of 3.96 million lb (1,796 mt). If any of 
these projects are 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.
    Consistent with the revised quota setting procedures established 
for the FMP (67 FR 6877, February 14, 2002), scup overages are 
determined based upon landings for the Winter I and Summer 2004 
periods, plus any previously unaccounted for landings from January-
December 2003. Table 3 presents the final 2004 commercial scup quota 
for each period and the reported 2004 landings for the 2004 Winter I 
and Summer periods; there was no overage of the Winter I or Summer 
quota. On October 12, 2004 (69 FR 60565), NMFS announced a transfer of 
quota from Winter I to Winter II 2004. Per the quota counting 
procedures, after June 30, 2005, NMFS will compile all available 
landings data for Winter II 2004 and compare the landings to the Winter 
II 2004 allocation, as adjusted. Any overages will be determined and 
required deductions will be made to the Winter II 2005 allocation.

                                           Table 3.--SCUP Preliminary 2004 Commercial Landings by Quota Period
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    2004 Quota            Reported 2004 landings through  Preliminary overages as of  10/
                                                         --------------------------------            10/31/04                          31/04
                      Quota period                                                       ---------------------------------------------------------------
                                                                lb              kg              lb              kg              lb              kg
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter I................................................       5,568,920       2,526,020       3,592,469       1,629,517               0               0
Summer..................................................       4,808,455       2,181,078       3,845,362       1,744,227               0               0
Winter II...............................................       1,967,825         892,590             N/A             N/A             N/A             N/A
                                                         -----------------
    Total...............................................      12,345,200       5,599,689       7,437,831       3,373,744  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
N/A = Not applicable.

    Table 4 presents the commercial scup percent share, 2005 TAC, 
projected discards, 2005 initial quota (with and without the RSA 
deduction), and initial 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 30,000 lb (6.8 mt), and a 
Winter II period (November-December) initial 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.

                                      Table 4.--Initial Commercial SCUP/Quota Allocations for 2005 By Quota Period
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Total allowable catch        Discards          2005 initial quota     2005 initial quota      Possession
                                            --------------------------------------------------------------------        less RSA          limits  (per
             Period                Percent                                                                      -----------------------     trip) \2\
                                    share        lb        kg \1\       lb         kg         lb          kg                           -----------------
                                                                                                                     lb          kg        lb       kg
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter I........................      45.11   6,563,505  2,977,186    938,288    425,605   5,625,217  2,551,582   5,518,367  2,503,089   15,000    6,804
Summer..........................      38.95   5,667,225  2,570,636    810,160    367,486   4,857,065  2,203,150   4,764,806  2,161,280  \3\ N/A  \3\ N/A
Winter II.......................      15.94   2,319,270  1,052,014    331,552    150,391   1,987,718    901,623   1,949,962    884,487    1,500      680
                                 ------------
    Total.......................     100.00  14,550,000  6,599,837  2,080,000    943,482  12,470,000  5,656,355  12,233,135  5,548,856  .......  .......
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\1\ Kilograms are as converted from pounds and may not necessarily add due to rounding.

[[Page 307]]

 
\2\ The Winter I possession limit will drop to 1,000 lb (454 kg) upon attainment of 80 percent of that period's allocation. The Winter II possession
  limit may be adjusted (in association with a transfer of unused Winter I quota to the Winter II period) via notification in the Federal Register.
\3\ Not applicable.

    As described in the proposed rule, the Council recommended no 
change in the Winter II possession limits that result from potential 
rollover of quota from the Winter I period for the 2005 fishing year. 
Therefore, NMFS maintains the Winter II possession limit-to-rollover 
amount ratios specified for 2004, as 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
1,500.....................................          680                  0-499,999             0-227            0            0        1,500          680
1,500.....................................          680            500,000-999,999           227-454          500          227        2,000          907
1,500.....................................          680        1,000,000-1,499,999           454-680        1,000          454        2,500        1,134
1,500.....................................          680        1,500,000-1,999,999           680-907        1,500          680        3,000        1,361
1,500,....................................          680        2,000,000-2,500,000         907-1,134        2,000          907        3,500        1,587
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Other Scup Management Measures

    This final rule makes two changes to the regulations regarding the 
directed otter trawl fishery for scup. The purpose of these 
modifications is to reduce potential scup discards. First, NMFS 
increases the minimum mesh size to 5 inches (12.7 cm) for the first 75 
meshes from the terminus of the net; and for codends constructed with 
fewer than 75 meshes, requires a minimum mesh size of 5 inches (12.7 
cm) throughout the net. Second, this final rule increases the threshold 
level to trigger the minimum mesh size requirement from 100 lb (45 kg) 
to 200 lb (90 kg) for the Scup Summer period (May 1 through October 
31). The change to the minimum mesh size regulations also apply in the 
Scup Gear Restricted Areas (GRA's).

Scup GRA's

    This final rule shifts the entire Southern GRA by 3 longitudinal 
minutes to the west. The recommendation to move the Southern GRA 
follows an industry request and subsequent analysis by the Northeast 
Fisheries Science Center (NEFSC), which indicates that the shift would 
expose an additional 3 percent of the scup stock to small-mesh gear 
during the effective period, while allowing access to an additional 8 
percent of the Loligo squid stock. NMFS also terminates the existing 
GRA Exemption Program, in which no vessels have participated to date. 
The intent of these actions is to allow greater opportunity for trawl 
vessels to harvest Loligo squid while maintaining the protective 
aspects of the Southern GRA for scup.

Black Sea Bass

    For 2005, 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 2005.
    This final rule implements the specifications contained in the 
proposed rule, i.e., an 8.2-million lb (3,719-mt) black sea bass TAL. 
After deducting 109,500 lb (50 mt) of RSA for the three approved 
research projects, the TAL is divided into a commercial quota of 3.97 
million lb (1,796 mt) and a recreational harvest limit of 4.13 million 
lb (1,873 mt). If any of these projects are 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.
    Consistent with the revised quota setting procedures for the FMP, 
black sea bass overages are determined based upon landings for the 
period January-September 2004, plus any previously unaccounted for 
landings from January-December 2003. No adjustment to the 2005 
commercial quota is necessary. Table 6 presents the initial 2005 
commercial quota and the final 2005 commercial quota (less the RSA).

  Table 6.--Final Black Sea Bass Commercial Quota Allocations for 2005
------------------------------------------------------------------------
                    2005 quota less    Quota overages
   2005 initial      research Set-     (through 09/30/  Final (adjusted)
   quota  (lb)        aside  (lb)         04)  (lb)     2005 quota  (lb)
------------------------------------------------------------------------
     4,020,000          3,966,345                 0         3,966,345
------------------------------------------------------------------------

Other Changes to the Regulations

    In addition to the changes recommended by the Council and the 
Commission's Summer Flounder, Scup, and Black Sea Bass Management Board 
(Board), this final rule removes references to a specific date by which 
the Summer Flounder, Scup, and Black Sea Bass Monitoring Committees 
shall meet for the purposes of recommending annual or multi-year TALs. 
This action is intended to provide flexibility for the Council in 
scheduling Monitoring Committee meetings and to remove an unnecessary 
restriction. NMFS previously modified the text regarding Monitoring 
Committee meetings in Sec. Sec.  648.100, 648.120, and 648.140 to 
reflect that annual review of updated information on the fisheries by 
the Monitoring Committees would not be required during the period of 
multi-year specifications. These regulatory changes

[[Page 308]]

were effective November 29, 2004 (69 FR 62818, October 28, 2004).

Changes From the Proposed Rule

    In the proposed rule, the longitude coordinate for the Southern GRA 
point SGA1 was inadvertently listed as 72[deg]50' W. long. In the 
second mention of SGA1. NMFS corrects the longitude coordinate of point 
SGA1 to 72[deg]53' W. long to reflect the shift of the entire Southern 
GRA by 3 longitudinal minutes to the west.

Comments and Responses

    One comment letter was received regarding the proposed measures.
    Comment 1: The commenter, representing a commercial seafood 
association, wrote in support of the proposed TALs, RSA amounts, 
commercial scup possession limits, scup minimum mesh size, and westward 
shift of the Southern GRA.
    Response: NMFS agrees and this final rule implements these proposed 
measures.
    Comment 2: The same commenter noted the error in the Southern GRA 
point 1 as described in Changes from the Proposed Rule in this 
preamble.
    Response: NMFS has corrected the Southern GRA point 1 coordinate in 
this final rule.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    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. This action establishes annual quotas for the 
summer flounder, scup, and black sea bass fisheries and possession 
limits for the commercial scup fishery. Preparation of the proposed 
rule was dependent on the submission by the Council of the final EA/
RIR/IRFA, which occurred in early November 2004, and appended in early 
December 2004. NMFS published the proposed rule on December 6, 2004, 
with an abbreviated, 15-day comment period, in order to allow for 
finalization of the proposed regulatory changes by January 1, 2005. 
NMFS was unable to obtain the necessary data from the Council before 
November 2004 to finalize the specifications. Therefore, in order to 
implement the 2005 specifications before the beginning of the finishing 
season beginning January 1, 2005, NMFS waives the 30-day delay in 
effectiveness.
    If implementation of the specifications is delayed, NMFS will be 
prevented from carrying out its legal obligation to prevent overfishing 
of these three species. The fisheries covered by this action will begin 
making landings on January 1, 2005. If a delay in effectiveness were to 
be 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 2005. In addition, the Delaware summer flounder fishery would be 
open for fishing but in a negative quota situation. This likely would 
result in overages that may require deduction from the associated state 
quota or coastwide quota period in the future, and might have a 
negative economic impact for some gear sectors.
    Additionally, pursuant to 5 U.S.C. 553(d)(1), the measure regarding 
the commercial scup possession limit relieves a restriction and is 
therefore not subject to a delay in effective date. The current 
commercial scup possession limit (15,000 lb (6.8 mt) per trip) is more 
restrictive than the measure recommended by the Council and implemented 
by NMFS in this rule (30,000 lb (13.6 mt) per trip).
    Under the current GRA Exemption Program requirements, vessels that 
are subject to the provisions of the GRA's must carry on board a Scup 
GRA Exemption Program Authorization (which requires application to the 
Regional Administrator) and a NMFS-certified observer in order to fish 
for, or possess, non-exempt species (black sea bass, Loligo squid, or 
silver hake (whiting)) using trawl nets having a minimum mesh size less 
than that required at Sec.  648.123. A minimum of 5 business days in 
advance of a trip is required to obtain an observer. NMFS terminates 
the GRA Exemption Program in this rule at the recommendation of the 
Council and because no vessels have participated in the program to 
date. Further, NMFS shifts the entire Southern GRA by 3 longitudinal 
minutes to the west in response to an industry request and subsequent 
analysis by the NEFSC, which indicates that the shift would expose an 
additional 3 percent of the scup stock to small-mesh gear during the 
effective period, while allowing access to an additional 8 percent of 
the Loligo squid stock. NMFS implements this measure in order to allow 
greater opportunity for trawl vessels to harvest Loligo squid while 
maintaining the protective aspects of the Southern GRA for scup. The 
commercial scup fishery is active at the beginning of January. If a 
delay in effectiveness were to be required, it would affect trawl 
vessel owners' ability to plan fishing trips until the rule is in 
effect, specifically due to the current Scup GRA Exemption Program 
requirements.
    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 
(69 FR 70414, December 6, 2004), and the analyses completed in support 
of this action. A copy of the EA/RIR/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

    The one comment letter received on the proposed rule did not 
specifically address the potential economic impact of the rule. Other 
than the correction described in Changes to the Proposed Rule, no 
changes to the proposed rule were required to be made as a result of 
public comments. For a summary of the comments received, and the 
responses thereto refer to the ``Comments and Responses'' section of 
this preamble.

Description and Estimate of Number of Small Entities to Which the 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 2005 quotas (and 2006 summer 
flounder quota) could affect 2,114 vessels that held a Federal summer 
flounder, scup, and/or black sea bass permit in 2003. However, the more 
immediate impact of this final rule will likely be felt by the 1,040 
vessels that actively participated (i.e., landed these species) in 
these fisheries in 2003.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance

[[Page 309]]

requirements are included in this final rule.

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 EA, the no action alternative is 
defined as follows: (1) No proposed specifications for the 2005 and 
2006 summer flounder fishery and for the 2005 scup and black sea bass 
fisheries would be published; (2) the indefinite management measures 
(minimum sizes, possession limits, minimum mesh size, threshold limits 
to trigger mesh requirements, permit and reporting requirements, etc.) 
would remain unchanged; (3) there would be no quota set-aside allocated 
to research in 2005 and 2006; (4) the existing GRA's and GRA 
regulations would remain in place for 2005; 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 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 
2005 (and for the summer flounder fishery in 2006), it would also 
likely exceed the biological targets specified in the FMP and could, 
therefore, not be implemented without violating the requirements of the 
Magnuson-Stevens Act.
    Table 7 evaluates three alternative combinations of summer 
flounder, scup, and black sea bass landings (commercial and 
recreational).

                                                       Table 7.--Comparison in lb (mt) of the Alternatives of Quota Combinations Reviewed
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                       Preliminary adjusted          Preliminary recreational
                                           Initial TAL                          RSA                2004 commercial quota overage         commercial quota                  harvest limit
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Quota Alternative 1 (Preferred)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Summer Flounder Preferred        30.3 million (13,744)..........  353,917 (161).................  121,647 (55)..................  17.87 million (8,108).........  11.98 million (5,434)
 Alternative--2005.
Summer Flounder Preferred        33.0 million (14,969)..........  990,000 (449).................  N/A...........................  19.21 million (8,714).........  12.80 million (5,806)
 Alternative--2006.
Scup Preferred Alternative       16.5 million (7,484)...........  303,675 (138).................  0.00..........................  12.23 million (5,547).........  3.96 million (1,796)
 (Status quo).
Black Sea Bass Preferred         8.2 million (3,719)............  109,500 (50)..................  0.00..........................  3.97 million (1,796)..........  4.13 million (1,873)
 Alternative.
--------------------------------
                                                                             Quota Alternative 2 (Most Restrictive)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Summer Flounder Alternative 2    28.2 million (12,791)..........  353,917 (161).................  121,647 (55)..................  16.59 million (7,523).........  11.14 million (5,053)
 (Status Quo)--2005.
Summer Flounder Alternative 2    28.2 million (12,791)..........  846,000 (384).................  N/A...........................  16.41 million (7,443).........  10.94 million (4,962)
 (Status Quo)--2006.
Scup Alternative 2.............  11.0 million (4,990)...........  303,675 (138).................  0.00..........................  7.95 million (3,606)..........  2.74 million (1,242)
Black Sea Bass Alternative 2     8.0 million (3,629)............  109,500 (50)..................  0.00..........................  3.87 million (1,755)..........  4.02 million (1,823)
 (Status Quo).
--------------------------------
                                                                             Quota Alternative 3 (Least Restrictive)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Summer Flounder Alternative 3--  32.6 million (14,787)..........  353,917 (161).................  121,647 (55)..................  19.23 million (8,721).........  12.90 million (5,851)
 2005.

[[Page 310]]

 
Summer Flounder Alternative 3--  35.5 million (16,103)..........  1.07 (485)....................  N/A...........................  20.66 million (9,371).........  13.77 million (6,246)
 2006.
Scup Alternative 3.............  22.0 million (9,979)...........  303,675 (138).................  0.00..........................  16.53 million (7,498).........  5.17 million (2,345)
Black Sea Bass Alternative 3...  8.7 million (3,946)............  109,500 (50)..................  0.00..........................  4.21 million (1,910)..........  4.38 million (1,987)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
N/A=Not applicable. Any commercial quota adjustments to account for 2005 overages will be published in the Federal Register in the final rule implementing the 2006 specifications.

    In summary, relative to 2004, the 2005 commercial quotas and 
recreational harvest limits contained in the Preferred Alternative 
would result in an 11-percent and a 7-percent increase in summer 
flounder landings for the commercial and recreational sectors, 
respectively, a less than 1-percent decrease in scup landings for both 
sectors, and a 5-percent and 3-percent increase in black sea bass 
landings for the commercial and recreational sectors, respectively; 
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 commercial 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 minimum mesh size and threshold increases were chosen in part 
because they would effect reduction in the discard of undersized fish, 
thus increasing the efficiency of the commercial scup fishery. Through 
the proposed rule, NMFS specifically sought comment on the likely 
effectiveness of and/or costs associated with the proposed change in 
minimum mesh size for scup. The change to the minimum mesh size 
regulations also would apply in the Scup GRA's.
    The decision to eliminate the GRA Exemption Program was made 
because no vessels have participated in the program since its 
implementation in 2003, and because there would be no change to the 
economic aspects of the fishery. Revised Southern GRA coordinates were 
selected in order to allow greater opportunity for trawl vessels to 
harvest Loligo squid while maintaining the protective aspects of the 
Southern GRA for scup.
    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: December 28, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons stated in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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


0
2. In Sec.  648.14, paragraph (a)(127) is removed and reserved, and 
paragraph(a)(122) is revised to read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (122) Fish for, catch, possess, retain or land Loligo squid, silver 
hake, or black sea bass in or from the areas and during the time 
periods described in Sec.  648.122(a) or (b) while in possession of any 
trawl nets or netting that do not meet the minimum mesh restrictions or 
that are obstructed or constricted as specified in Sec. Sec.  648.122 
and 648.123(a), unless the nets or netting are stowed in accordance 
with Sec.  648.123(b).
* * * * *
    (127) [Reserved]
* * * * *

0
3. In Sec.  648.100, paragraph (a) is revised to read as follows:


Sec.  648.100  Catch quotas and other restrictions.

    (a) Review. The Summer Flounder Monitoring Committee shall review 
each year the following data, subject to availability, unless a TAL has 
already been established for the upcoming calendar year as part of a 
multiple-year specification process, provided that new information does 
not require a modification to the multiple-year quotas, to determine 
the annual allowable levels of fishing and other restrictions necessary 
to achieve, with at least a 50-percent probability of success, a 
fishing mortality rate (F) that produces the maximum yield per recruit 
(Fmax): Commercial, recreational, and research catch data; 
current estimates of fishing mortality; stock status; recent estimates 
of recruitment; virtual population analysis results; levels of 
noncompliance by fishermen or individual states; impact of size/mesh 
regulations; sea sampling and winter trawl survey data or, if sea 
sampling data are unavailable, length frequency information from the 
winter trawl survey and mesh selectivity analyses; impact of gear other 
than otter trawls on the mortality of summer flounder; and any other 
relevant information.
* * * * *

0
4. In Sec.  648.120, paragraph (a) is revised to read as follows:


Sec.  648.120  Catch quotas and other restrictions.

    (a) Review. The Scup Monitoring Committee shall review each year 
the following data, subject to availability, unless a TAL already has 
been established for the upcoming calendar

[[Page 311]]

year as part of a multiple-year specification process, provided that 
new information does not require a modification to the multiple-year 
quotas: Commercial, recreational, and research data; current estimates 
of fishing mortality; stock status; recent estimates of recruitment; 
virtual population analysis results; levels of noncompliance by 
fishermen or individual states; impact of size/mesh regulations; impact 
of gear on the mortality of scup; and any other relevant information. 
This review will be conducted to determine the allowable levels of 
fishing and other restrictions necessary to achieve the F that produces 
the maximum yield per recruit (Fmax).
* * * * *

0
5. In Sec.  648.122, paragraph (d) is removed and reserved, and the 
section heading, paragraph (a)(1), and the first two sentences of 
paragraph (b)(1) are revised to read as follows:


Sec.  648.122  Season and area restrictions.

    (a) * * *
    (1) Restrictions. From January 1 through March 15, 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 5.0-inch (12.7-cm) 
diamond mesh, applied throughout the codend for at least 75 continuous 
meshes forward of the terminus of the net. For trawl nets with codends 
(including an extension) of fewer than 75 meshes, the entire trawl net 
must have a minimum mesh size of 5.0 inches (12.7 cm) throughout the 
net. The Southern Gear Restricted Area is an area bounded by straight 
lines connecting the following points in the order stated (copies of a 
chart depicting the area are available from the Regional Administrator 
upon request):

                      Southern Gear Restricted Area
------------------------------------------------------------------------
               Point                     N. lat.            W. long.
------------------------------------------------------------------------
SGA1..............................  39[deg]20[min]     72[deg]53[min]
SGA2..............................  39[deg]20[min]     72[deg]28[min]
SGA3..............................  38[deg]00[min]     73[deg]58[min]
SGA4..............................  37[deg]00[min]     74[deg]43[min]
SGA5..............................  36[deg]30[min]     74[deg]43[min]
SGA6..............................  36[deg]30[min]     75[deg]03[min]
SGA7..............................  37[deg]00[min]     75[deg]03[min]
SGA8..............................  38[deg]00[min]     74[deg]23[min]
SGA1..............................  39[deg]20[min]     72[deg]53[min]
------------------------------------------------------------------------

* * * * *
    (b) * * *
    (1) * * * From November 1 through December 31, all trawl vessels in 
the Northern Gear Restricted Area I that fish for or possess non-exempt 
species as specified in paragraph (b)(2) of this section, 5.0-inch 
(12.7 cm) diamond mesh, applied throughout the codend for at least 75 
continuous meshes forward of the terminus of the net. For trawl nets 
with codends (including an extension) of fewer than 75 meshes, the 
entire trawl net must have a minimum mesh size of 5.0 inches (12.7 cm) 
throughout the net. * * *
* * * * *
    (d) [Reserved]
* * * * *

0
6. In Sec.  648.123, paragraph (a)(1) is revised to read as follows:


Sec.  648.123  Gear restrictions.

    (a) * * *
    (1) Minimum mesh size. No owner or operator of an otter trawl 
vessel that is issued a scup moratorium permit may possess 500 lb 
(226.8 kg) or more of scup from November 1 through April 30, or 200 lb 
(90.7 kg) or more of scup from May 1 through October 31, unless fishing 
with nets that have a minimum mesh size of 5.0-inch (12.7-cm) diamond 
mesh, applied throughout the codend for at least 75 continuous meshes 
forward of the terminus of the net, and all other nets are stowed in 
accordance with Sec.  648.23(b)(1). For trawl nets with codends 
(including an extension) of fewer than 75 meshes, the entire trawl net 
must have a minimum mesh size of 5.0 inches (12.7 cm) throughout the 
net. Scup on board these vessels must be stowed separately and kept 
readily available for inspection. Measurement of nets will be in 
conformity with Sec.  648.80(f)(2)(ii).
* * * * *

0
7. In Sec.  648.140, paragraph (a) is revised to read as follows:


Sec.  648.140  Catch quotas and other restrictions.

    (a) Review. The Black Sea Bass Monitoring Committee shall review 
each year the following data, subject to availability, unless a TAL 
already has been established for the upcoming calendar year as part of 
a multiple-year specification process, provided that new information 
does not require a modification to the multiple-year quotas, to 
determine the allowable levels of fishing and other restrictions 
necessary to result in a target exploitation rate of 23 percent (based 
on Fmax) in 2003 and subsequent years: Commercial, 
recreational, and research catch data; current estimates of fishing 
mortality; stock status; recent estimates of recruitment; virtual 
population analysis results; levels of noncompliance by fishermen or 
individual states; impact of size/mesh regulations; sea sampling and 
winter trawl survey data, or if sea sampling data are unavailable, 
length frequency information from the winter trawl survey and mesh 
selectivity analyses; impact of gear other than otter trawls, pots and 
traps on the mortality of black sea bass; and any other relevant 
information.
* * * * *
[FR Doc. 04-28752 Filed 12-30-04; 9:39 am]
BILLING CODE 3510-22-P