[Federal Register: January 14, 2004 (Volume 69, Number 9)]
[Rules and Regulations]
[Page 2074-2082]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ja04-7]
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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
sarah.mclaughlin@noaa.gov.
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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.
BILLING CODE 3510-22-S
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BILLING CODE 3510-22-C
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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
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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 ................. .................
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\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.
BILLING CODE 3510-22-S
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BILLING CODE 3510-22-C
[[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
--------------------------------------------------------------------------------------------------------------------------------------------------------
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
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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