PETITION FOR RULEMAKING
_________________________________________________________

PETITIONERS:

Recreational Fishing Alliance
P.O. Box 3080
New Gretna, NJ 08224
(609) 294-3315

United Boatmen
526 Bay Avenue
Point Pleasant Beach, NJ 08742
(732) 899-9500

New York Fishing Tackle Trade Association
P.O. Box 3210
Patchogue NY  11772
(631) 587-2873

_______________________________________________________

Petitioners Seek to Amend the Current Allocation of the
Total Allowable Landings of Summer Flounder

The United Boatmen and the Recreational Fishing Alliance ("Petitioners")
hereby petition the National Marine Fisheries Service (NMFS), Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission pursuant to 5 U.S.C. S 553(e) and all other relevant provisions of law, to allocate 50% of the Total Allowable Landings (TAL) of summer flounder to the recreational fishing sector.  The current management measures for the summer flounder fisheries established by Amendment 2 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) in 1992 and implemented for the 1993 fishing year allocate 60% of the TAL to the commercial fishing sector and 40% of the TAL to the recreational fishing sector. The current allocation has disadvantaged and harmed the recreational summer flounder fishing sector and will continue to do so in the future.

The recreational summer flounder fishery generates major economic and
social benefits. Of all the species of finfish found on the Mid-Atlantic
Coast, none is more valuable to the recreational fishing sector than the
summer flounder. The recreational summer flounder fishing sector includes
individual anglers, party and charter boat businesses, boat builders, fishing tackle manufacturers, bait and tackle retailers, marinas, and many other businesses in fishing communities. According to the 2001 Marine Recreational Fisheries Statistics Survey (MRFSS), there are 8,164,393
saltwater anglers from Maine through North Carolina. In 2001, approximately 3,037,154 anglers fished for summer flounder in this range.  These individual anglers pay fares on party and charter boats, they purchase
powerboats with expensive electronics, they purchase bait, rods, reels, and
lures, they dock their boats and fuel up at marinas, they buy provisions,
stay at hotels, and patronize restaurants in fishing communities. The social benefits accrued by individuals and families who spend time together fishing for summer flounder are beyond valuation. The current allocation of the TAL of summer flounder has disadvantaged and harmed this sector and
will continue to do so in the future.

The current 60/40 allocation of the TAL of summer flounder violates
National Standard 1 of the Magnuson-Stevens Fishery Conservation and
Management Act because it fails to provide the greatest overall benefit to
the Nation. 16 U.S.C. S 1851(a)(1). The allocation of 60% of the TAL of
summer flounder to approximately 1,400 commercial permit holders and 40% of the TAL of summer flounder to approximately 3,037,154 recreational fishermen has disadvantaged and harmed the recreational summer flounder fishing sector and will continue to do so in the future.

The current allocation violates National Standard 4 because it is unfair
and inequitable to the recreational summer flounder fishing sector, is not
reasonably calculated to promote conservation, and grants the commercial
summer flounder fishing sector an excessive share of fishing privileges. 16
U.S.C. S 1851(a)(4). The current allocation came about as a result of
biologists and managers arbitrarily and capriciously discounting NMFS data
on the true historical participation in this fishery.

The current allocation violates National Standard 5 because it is an
inefficient use of the summer flounder resource. 16 U.S.C. S 1851(a)(5).
The allocation of summer flounder to the recreational sector clearly
provides the most social and economic benefits per pound of summer flounder harvested yet it has only been allocated 40% of the summer flounder TAL.

The current allocation violates National Standard 8 because it does not
take into account the importance of the summer flounder resource to fishing
communities with large recreational components. 16 U.S.C. S 1851(a)(8).
Individual anglers, party and charter boat businesses, boat builders, fishing tackle manufacturers, bait and tackle retailers, marinas, and many other businesses are all part of fishing communities. The current allocation has had significant adverse economic impacts on such fishing communities due to smaller possession limits, larger minimum size requirements, shorter seasons, delayed season openings and early season closures.

The landings for the period 1980 through 1989, used to establish the 60/40
quota allocations, do not accurately reflect historical recreational participation or traditional share of the summer flounder fishery. Consequently, the current allocation of fishing privileges among recreational and commercial summer flounder fishermen is unfair and inequitable. It was a de facto reallocation of this fishery contrary to the historic allocation ratio.

As a remedy, Petitioners request that NMFS begin rulemaking procedures to modify the existing allocation of the TAL of summer flounder to establish
an equal 50% allocation for both the recreational and commercial fishing
sectors. This request will require modifications to 50 C.F.R. S 648.100 and
any other pertinent provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP).

Petitioners interest in the summer flounder fishery and the proposed
amendment
The purpose of this petition is to remedy an inequity in the current summer
flounder management scheme and take this opportunity to create a fair and
equitable 50% allocation of the TAL of summer flounder to both the recreational and commercial fishing sectors.

Petitioners each have a significant interest in the action requested. United Boatmen is an organization which represents most of the largest charter and party boat businesses in New York and New Jersey, as well as tackle dealers, bait distributors, marinas and other associated members.
The RFA is a national, grassroots political action organization representing individual sport fishermen and the sport fishing industry. The RFA Mission is to safeguard the rights of saltwater anglers, protect marine, boat and tackle industry jobs and ensure the long-term sustainability of U.S. saltwater fisheries. Currently, the RFA represents over 80,000 members through individual, corporate and club-affiliated memberships.

Of all the species of finfish found on the Mid-Atlantic Coast, none is more
valuable to the recreational fishing sector than the summer flounder.
Petitioners members participate in the recreational summer flounder
fishery. Petitioners members depend on the recreational summer flounder
fishery to earn a livelihood and to enhance their quality of life.
Petitioners members have been disadvantaged and harmed by the current
allocation of 60% the TAL of summer flounder to the commercial fishing
sector and 40% of the TAL of summer flounder to the recreational fishing
sector and will continue to be disadvantaged and harmed in the future due
to smaller possession limits, larger minimum size requirements, shorter
seasons, delayed season openings and early season closures.

The allocation of 50% of the TAL of summer flounder to the recreational
fishing sector would remedy the future disadvantage and harm that the
Petitioners and similarly situated groups and individuals will suffer.

Effect on the recreational and commercial summer flounder fishing sectors

The proposed amendment would directly affect all current and future
participants in the summer flounder fisheries. According to the 2001 MRFSS, there are 8,164,393 saltwater anglers from Maine through North Carolina and approximately 3,037,154 of these anglers target summer flounder. This proposed amendment would result in significant social and economic benefits to the recreational summer flounder fishing sector which includes anglers, party and charter boat businesses, boat builders, fishing tackle manufacturers, bait and tackle retailers, marinas, and many other
businesses in our fishing communities.

According to NMFS permit records, there are approximately 1,400 permit
holders in the directed commercial summer flounder fishing sector. Any
potential negative effects of modifying the existing allocation of the TAL
of summer flounder to establish an equal 50% allocation for both the
recreational and commercial fishing sectors would be substantially
outweighed by the social and economic benefits of such amendment.

Importance of the regulation in promoting established fisheries priorities
and policies.

The National Standards set forth in the Magnuson-Stevens Fishery
Conservation and Management Act establish significant fisheries priorities
and policies. Petitioners assert that the proposed amendment addresses the
priorities and policies set forth in National Standard 1 which states,
"Conservation and management measures shall prevent overfishing while
achieving, on a continuing basis, the optimum yield from each fishery for
the United States fishing industry." 16 U.S.C. S 1851(a)(1). The term
"optimum yield" means the amount of fish which "will provide the greatest
overall benefit to the Nation, particularly with respect to food production
and recreational opportunities, and taking into account the protection of
marine ecosystems." 16 U.S.C. S 1802(28).

The current 60/40 allocation of the TAL of summer flounder clearly fails to
provide the greatest overall benefit to the Nation. Id. The allocation of
60% of the TAL of summer flounder to approximately 1,400 commercial permit holders and 40% of the TAL of summer flounder to approximately 3,037,154 recreational fishermen has disadvantaged and harmed the recreational summer flounder fishing sector and will continue to do so in the future. Establishing an equal 50% allocation for both the recreational and
commercial fishing sector is more likely to prevent overfishing while
achieving the optimum yield from the summer flounder fishery. 16 U.S.C. S
1851(a)(1). Thus, Petitioners proposed amendment would advance the
priorities and policies established by National Standard 1.

Petitioners assert that the proposed amendment addresses the priorities and
policies set forth in National Standard 4 which states, "If it becomes
necessary to allocate or assign fishing privileges among various United
States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C)
carried out in such manner that no particular individual, corporation, or
other entity acquires an excessive share of such privileges." 16 U.S.C.
S 1851(a)(4).

The current allocation of the TAL of summer flounder is unfair and inequitable because the allocation of 60% to approximately 1,400 commercial permit holders and 40% to approximately 3,037,154 recreational fishermen has disadvantaged and harmed the recreational summer flounder fishing sector and will continue to do so in the future. Id. The current allocation is not reasonably calculated to promote conservation because it came about as a result of biologists and managers arbitrarily and capriciously discounting NMFS data on the true historical participation in this fishery.
Id. The current allocation gives the commercial summer flounder fishing
sector an excessive share of fishing privileges considering the true
historical participation in this fishery. Id. Establishing an equal 50%
allocation for both the recreational and commercial fishing sector is fair
and equitable, reasonably calculated to promote conservation and would not give a particular sector excessive privileges. Id. Thus, Petitioners
proposed amendment would advance the priorities and policies established by National Standard 4.

Petitioners assert that the proposed amendment addresses the priorities and
policies set forth in National Standard 5 which says, "Conservation and
management measures shall, where practicable, consider efficiency in the
utilization of fishery resources; except that no such measure shall have
economic allocation as its sole purpose." 16 U.S.C. S 1851(a)(5). The
allocation of 60% of the TAL of summer flounder to approximately 1,400
commercial permit holders and 40% of the TAL of summer flounder to
approximately 3,037,154 recreational fishermen is not only unfair and
inequitable but it is also an inefficient utilization of the summer flounder resource. Id.

Allocating 50% of the TAL of summer flounder to the recreational sector
will clearly provide more social and economic benefits per pound of summer flounder harvested. Establishing an equal 50% allocation would prevent future disadvantage and harm to individual anglers, party and charter boat businesses, boat builders, fishing tackle manufacturers, bait and tackle retailers, marinas, and many other businesses in fishing communities. Thus, Petitioners proposed amendment would advance the priorities and policies established by National Standard 5.

Petitioners assert that the proposed amendment addresses the priorities and
policies set forth in National Standard 8 which says, "Conservation and
management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of
overfished stocks), take into account the importance of fishery resources
to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities." 16 U.S.C. S 1851(a)(8). The term "fishing community" means "a community which is substantially dependent on or substantially engaged in the harvest or processing of fishery resources to meet social and economic needs" 16 U.S.C. S 1802(16).

Individual anglers, party and charter boat businesses, boat builders, fishing tackle manufacturers, bait and tackle retailers, marinas, and many other businesses are all part of fishing communities. Captree, Freeport and Montauk, NY; Atlantic Highlands, Brielle, and Cape May, NJ; Lewes, DE;
Ocean City, MD; and Virginia Beach, VA are examples of significant fishing
communities with large recreational components.

The current allocation does not take into account the importance of the
summer flounder resource to fishing communities such as these. 16 U.S.C. S 1851(a)(8). The current allocation has had significant adverse economic
impacts on such fishing communities due to smaller possession limits,
larger minimum size requirements, shorter seasons, delayed season openings
and early season closures. Id. Allocating 50% of the TAL of summer flounder to the recreational sector will help accommodate the massive socio-economic fabric of fishing communities such as those mentioned above. Thus, Petitioners proposed amendment would advance the priorities and policies established by National Standard 8.

Under Magnuson-Stevens, fishery management plans shall "to the extent that rebuilding plans or other conservation and management measures which reduce the overall harvest in a fishery are necessary, allocate any harvest
restrictions or recovery benefits fairly and equitably among the commercial, recreational, and charter fishing sectors in the fishery." 16 U.S.C. S 1853(a)(14). In doing so, consideration must be given to historical participation in the fishery. Allocating 50% of the TAL of summer flounder to the recreational sector is fair and equitable and consistent with this requirement for fishery management plans under Magnuson-Stevens.

Resources needed to develop the proposed regulations

The proposed amendment can be addressed in the established summer flounder management process conducted by NMFS, the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission. NMFS will be required to follow its standard rulemaking procedure that includes the proposed rule, comment period, and final rule. No new analysis or personnel time outside of standard rulemaking procedures should be required to make this allocation modification. Furthermore, the proposed amendment would have no impact on enforcement of the summer flounder management measures.

Public interest in the proposed regulation

The public interest in seeing this fishery managed fairly is extremely high. According to the 2001 Marine Recreational Fisheries Statistics Survey
(MRFSS), there are 8,164,393 saltwater anglers from Maine through North Carolina. In 2001, approximately 3,037,154 anglers fished for summer flounder in this range. The recreational summer flounder fishing sector includes many of these individuals as well as party and charter boat
businesses, boat builders, fishing tackle manufacturers, bait and tackle
retailers, marinas, and many other businesses in our fishing communities.

This sector has been disadvantaged and harmed by the current quota
allocation and will continue to be harmed in the future. The proposed
amendment to modify the existing allocation of the TAL of summer flounder
to establish an equal 50% allocation for both the recreational and commercial fishing sectors would remedy the future disadvantage and harm
that the recreational summer flounder fishing sector will suffer. The proposed amendment more accurately reflects historical participation in
this fishery and is consistent with the express public interest.

Congress enumerated the public interest in the National Standards of the
Magnuson-Stevens Act. The proposed amendment clearly embodies those
standards particularly National Standards 1,4, 5 and 8. The public has a
strong interest in seeing these National Standards carried out in the
management measures for the summer flounder fisheries.

Finally, the proposed amendment would inspire public confidence in the
summer flounder management system which many have dismissed as unfair,
inequitable and biased.

Reasoning for the proposed amendment

(1) DEFINING A REPRESENTATIVE PERIOD

Basic to any quota allocation are time periods and landings which are
intended to represent sector participation. Any quota allocations must
adequately and fairly represent sector participation which in this petition
means both a time span and a landing pattern indicative of a sectors activity and success with a fishery. We recognize that by selecting the 1980-1989 time period for quota allocation in Amendment 2 the management system deemed decade-long landings as most representative, especially as it relates to the recreational sector. However, petitioners assert that a more representative pattern is evident when a five- or seven-year landing analysis within the 1980-1989 decade is performed.

According to data published in Amendment 2, recreational landings for
1980-1984 accounted for 63.5% of the sectors summer flounder totals during the decade. Relative to commercial landings, that represented a 45.8% share. Landings for 1980-1986 accounted for 81.7% of the decade total, or a 43.5% share relative to commercial landings. Further, recreational landing data from the `70s, although labeled suspect by government fishery scientists, are nevertheless useful as a trend indicator. As such they support the argument that the representative recreational share during the `70s and the `80s was significantly greater than 40%.

(2) TRENDS THROUGH THE `60s and `70s

For example, as stated in the 1970 Salt-Water Angling Survey by the U.S.
Department of Commerce, NOAA, National Marine Fisheries Service, Current Fisheries Statistics (D.G. Duel), recreational summer flounder landings that year totaled 28,291,000 pounds compared to commercial landings of 8,861,000 pounds (as reported in 1940-1977, Fishery Statistics of the United States, DOC 1984). Thats a split of 76.1% recreational and 23.9% commercial.

However, the NMFS had concluded that `70s recreational data was overstated through the survey methods of the period by as much as 100% and therefore should be reduced by half whenever those data are considered. Petitioners contend that the 50% reduction is based upon an incorrect assumption and that it is arbitrary, capricious, and unreasonable to reduce the `70s data by 50%. Criticism of that assumption notwithstanding, however arbitrary it might be, the adjusted 1970 recreational landings would be 14,145,500 pounds. Yet even at that level the landings split is 61.5% recreational versus 38.5% commercial!

Additional examples of trends from the `70s exist. The Northeastern
Regional Survey of Recreational Fishing in Saltwater, 1973-1974, by the
U.S. Department of Commerce, National Marine Fisheries Service, indicated that 1974 recreational summer flounder landings totaled 34,900,000 pounds.
When compared to 22,581,000 pounds of commercially landed summer flounder as reported in the 1940-1977 Fishery Statistics of the United Stated States, DOC 1984), a recreational/commercial split of 60.7/39.3 results.
Using the one-half rule, the comparison is 17,450,000 pounds recreationally
to 22,581,000 pounds commercially, for a 43.6/56.4 recreational/ commercial split.

According to NMFS landing records, the recreational sector was responsible for 78.7% of overall landings in 1960 and 77.9% in 1965 (Clark, 1962; Deuel and Clark, 1968). Indeed, a NMFS MARMAP document dated March, 1974 says on page 72 "summer flounder are particularly important as sport fish and are also of some importance in the commercial catch." (NMFS, 1974). Various NMFS documentation verifies that summer flounder were predominantly landed by the recreational sector until the early 1980s.

Further, the 1971-1975 average of recreational summer flounder landings as reported in the Status of the Fishery Resources off the Northeastern United States for 1983 was 15.8 metric tons or 34,823,200 plus pounds. Average commercial landings for the same period calculated from data reported by the 1940-1977 Fishery Statistics of the United States, DOC 1984, were 16,724,600 pounds. That is a split of 67.6% recreational versus 32.4% commercial. To be consistent, the one-half rule reduces the recreational landings to 17,411,600 pounds. Nevertheless, the resultant comparison using adjusted numbers is a recreational/commercial split of 51/49 percent.

Further credence to the trend value of `70s data is lent by recalling that all calculations have been made with data published by the government---not
new data introduced by the recreational sector.

(3) THE WEAKNESS IN THE `80S DATA

Despite such data from the `70s, which the government published and offered as official and the management system utilized in various ways, all were essentially disregarded when a quota allocation was determined for
Amendment 2. Instead, the `80s decade was selected despite the fact that
during the last three years of that decade (1987-1989) a marked decline in
fish availability and subsequent recreational landings were recorded. The
17.3% of decade recreational landings which occurred during those final
three years is hardly representative of, or consistent with, the trends of
prior recreational performance revealed by the `60s, `70s and early `80s
data.

Much worse, 1989 recreational landings amounted to less than 2% of the
decade total, a level that could not possibly be considered representative
of recreational performance for the period. Although the intent of using a
10-year period was to achieve the longest possible representative trend,
when landings for those three final years were averaged with earlier totals
they materially and artificially ratchet downward the pattern of recreational landings. The result is an unrepresentative 40% share mandated by Amendment 2.

(4) COMMERCIAL LANDINGS CONSISTENCY

The 10-year period between 1980 and 1989 used for the allocation split
includes a precipitous decline in the summer flounder biomass. This was a
ten-year period when commercial landings were at or near their all-time
high and when the size of the commercial fleet was at its peak. The
commercial sector again demonstrated its ability to maintain relatively
stable landings in periods of decline. History shows the recreational sector is never so fortunate. With a declining biomass and the use of inherently inefficient rod and reel gear, the recreational harvest declined.

Despite a robust fleet, commercial landings were relatively consistent
throughout the `80s decade (Table 2), and therefore the sector is not
disadvantaged by the selection of any sub-period within that time.
Amendment 2 data show that 51.1% of commercial landings occurred in the first five years (1980-1984), and 72.3% of the decade total occurred in the first seven years (1980-1986). Eliminating landings for the final three
years of the decade (1987-1989) does not disadvantage the commercial
sector, whereas including landings for those years does adversely impact
the recreational sector.

(5) CURRENT LANDINGS

Representative recreational performance is also evident in landings data
for 1996-2001 when a significant increase in landings without a corresponding increase in angler effort characterized the period. In fact, a partyboat traffic analysis reveals an angler effort decrease. Larger minimum sizes, especially with summer flounder, caused many anglers to consider the return in pounds of fish relative to the fare too meager to justify fishing. This participation trend is consistent with NMFS data as reflected in Our Living Oceans. This is an essential point. Higher landings at a relatively stable or declining effort level can only mean an elevated biomass and increased fish availability. Coupled with commercial observations and side-by-side trawl experiments, higher recreational landings suggest a biomass larger than indicated by the NMFSs assessment.
More importantly to this petition, as the stock has recovered from its
precipitous decline, recreational landings have returned to their traditional levels.

An inescapable parallel emerges when one compares angler landings in the
first five or seven years of the `80s to landings during 1996-2001. The
earlier landings occurred during a period highlighted by a 1981 stock
assessment conducted by Fogarty (reported in "The Summer Flounder
Chronicles: Science, Politics, and Litigation 1975-2002," by Dr. Mark
Terceiro, NEFSC). Fogarty concluded summer flounder had reached a peak biomass level in 1974-1976. Although the stock was declining, spawning stock biomass in 1983 was estimated to be 41,435,200 pounds (35th SARC).
Decline notwithstanding, a relatively significant level of summer flounder
biomass and an associated availability of fish still existed from the mid-70s and into the early `80s.

Given that recreational landings during the early `80s are more representative of historical performance than landings during the entire
10-year period, it follows that a similar pattern during the 1996-2001
period must also be representative, especially if the biomass levels are
relatively similar. In fact, the levels for the latter period are significantly higher. By 2001, according to the 35th SARC, the spawning stock biomass had swelled to 84,192,800 pounds. Of course, landings during 1996-2001 were less than landings during 1980-1987 because of management controls, but harvest during both periods must be considered representative, especially with the significant increase in fish during the five years prior to the 2001 estimate.

A close examination of data obtained from the July 22, 2002, Monitoring
Committee Report concerning the 2003 summer flounder quota sheds more light on this point. The report placed the 1996-2001 average recreational
landings at 11,772,000 pounds compared to 10,970,000 pounds landed
commercially. From an allocation perspective, thats a 51.8% recreational
share versus a 48.2% commercial share.

Labeling such performance "proof" of recreational overfishing only works if
one labors to disregard historical performance in this fishery. The 1996-2001 landings are clearly consistent with the recreational/commercial
landing differentials posted in the early `80s and further supported by the
trends and patterns noted in the foregoing `60s and `70s analysis. In other
words, landings of the 1996-2001 period are not only characteristic of the
recreational sector given the biomass level at the time, they should have
been expected! Rather than overfishing, it is "fishing with the flow," which means recreational landings that are consistent with fish availability. The landings achieved over the last five years (during the recovery period) reflect allocation that should have been built into the FMP.

(6) WHAT IF SCENARIO

Yet another perspective results when one supposes that recreational
landings during 1996-2001 were, in fact, 50% of the official quota, which
would produce a similar share for the commercial sector. In this construct,
the average recreational landings of 11,772,000 pounds for 1996-2001 would be 50% of a total allowable landings (TAL) figure of 23,544,000 pounds, producing an identical commercial quota of 11,772,000 pounds. Note that the actual TAL for the period averaged 18,416,666 pounds, 22% lower than the TAL postulated in this scenario. A more accurate summer flounder biomass estimate for the period might have produced a quota in line with the aforementioned TAL, which further underlines the representative nature of the recreational landings for the period, the reasonableness of a 50% commercial, 50% recreational allocation and the very strong possibility that the summer flounder biomass has been understated.

(7) CONCLUSION

For all of the foregoing reasons, Petitioners hereby petition NMFS, the
Mid-Atlantic Fishery Management Council, and the Atlantic States Marine
Fisheries Commission, pursuant to 5 U.S.C. 553(e), to allocate 50% of the
TAL of summer flounder to the recreational fishing sector.

Dated: March 5, 2003

Respectfully submitted by:
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