[Federal Register Volume 64, Number 83 (Friday, April 30, 1999)]
[Proposed Rules]
[Pages 23256-23260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10900]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 990422103-9103-01; I.D. 031099B]
RIN 0648-AL75


Fisheries of the Northeastern United States; Fishery Management 
Plan for the Summer Flounder, Scup, and Black Sea Bass Fisheries; 
Recreational Measures for the 1999 Fisheries

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

ACTION: Proposed rule; proposed interim measures to implement 
conservation equivalency in the summer flounder fishery; request for 
comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes recreational measures for the 1999 summer 
flounder, scup, and black sea bass fisheries. The implementing 
regulations for these fisheries require NMFS to publish recreational 
measures for the upcoming fishing year and to provide an opportunity 
for public comment. The intent of these measures is to prevent 
overfishing of the summer flounder, scup, and black sea bass resources. 
In addition, NMFS proposes interim measures to allow states to 
implement conservation equivalent measures for the summer flounder 
recreational fishery.

DATES: Public comments must be received on or before June 1, 1999.

ADDRESSES: Copies of supporting documents used by the Summer Flounder, 
Scup, and Black Sea Bass Monitoring Committees and of the Environmental 
Assessment, Regulatory Impact Review, including the Initial Regulatory 
Flexibility Analysis, are available from: Dan Furlong, Executive 
Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal 
Building, 300 South New Street, Dover, DE 19904-6790.
    Comments on the proposed specifications should be sent to: Jon 
Rittgers, Acting Regional Administrator, Northeast Region, NMFS, One 
Blackburn Drive, Gloucester, MA 01930-2298. Mark on the outside of the 
envelope, ``Comments - 1999 Summer Flounder, Scup, and Black Sea Bass 
Recreational Measures.''

FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst, 
(978) 281-9326.

SUPPLEMENTARY INFORMATION:

[[Page 23257]]

Background

    The Fishery Management Plan for the Summer Flounder, Scup, and 
Black Sea Bass Fisheries (FMP) outlines the process for specifying 
annual recreational measures. The FMP has established Monitoring 
Committees (Committees) for each of the three fisheries comprised of 
representatives from the Atlantic States Marine Fisheries Commission 
(Commission), the Mid-Atlantic Fishery Management Council (Council), 
the New England and South Atlantic Management Councils, and NMFS. The 
Committees are required to review annually scientific and other 
relevant information and to recommend measures necessary to achieve the 
recreational harvest limits for the summer flounder, scup, and black 
sea bass fisheries. These recommended measures are limited to minimum 
fish sizes, possession limits, and closed seasons. The Council's 
Demersal Species Committee and the Commission's Summer Flounder, Scup, 
and Black Sea Bass Board (Board) then consider the Monitoring 
Committees' recommendations and any public comment in making their 
recommendations. The Council reviews the Demersal Committee 
recommendations, makes its own decision, in turn, and forwards its 
recommendation to NMFS.
    Final specifications for the 1999 summer flounder, scup, and black 
sea bass fisheries were published on December 31, 1998 (63 FR 72203), 
and included a coastwide recreational harvest limit of 7.41 million lb 
(3.361 million kg) for summer flounder; 1.24 million lb (0.562 million 
kg) for scup; and 3.14 million lb (1.42 million kg) for black sea bass. 
Recreational measures for 1999 were not included in the final 
specifications because not enough recreational catch data for 1998 were 
available for the Committees to use in evaluating the effectiveness of 
the 1998 measures. Shortly after preliminary data became available, 
each Committee met to review the data and to recommend measures for the 
1998 recreational fisheries. Based on those recommendations, the 
Council submitted the following recreational measures for 
consideration.

Summer Flounder

    At the November 1998 Monitoring Committee meeting, the Committee 
recommended that the Council consider a 15-inch (38-cm) minimum fish 
size, an 8-fish possession limit, and a closure from August 8, 1999, to 
September 30, 2000. Preliminary recreational landings data for 1998 
indicated that a 55-percent reduction in recreational landings would be 
required in 1999 to avoid exceeding that fishing year's harvest limit 
of 7.41 million lb (3.36 million kg).
    During the time between the Committee meeting in November and the 
Council/Board meeting in December, additional recreational data for the 
1998 fishing year became available. Analysis of these data showed that 
a 40-percent reduction in fishing effort in 1999 (compared to 1998), 
instead of the 55-percent reduction discussed at the November 1998 
Committee meeting, would be required to keep the recreational landings 
in 1999 from exceeding the 1999 harvest limit. The Council and Board 
reviewed this analysis and the Committee's recommendation and 
recommended a 15-inch (38-cm) minimum fish size, an 8-fish possession 
limit, and a closed season from September 12, 1999, through May 28, 
2000.
    In addition, the Council requested that NMFS publish an interim 
rule that would allow the states to implement alternative measures that 
are equivalent to the recreational measures NMFS proposes for the 
summer flounder fishery. The Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) states that if a Council finds 
that interim measures are needed to reduce overfishing for any fishery 
within its jurisdiction, it may recommend to the Secretary of Commerce 
the promulgation of interim measures to address the overfishing. The 
interim action would remain in effect for not more that 180 days after 
the date of publication, and may be extended by publication in the 
Federal Register for one additional period of not more than 180 days, 
provided the public has had an opportunity to comment on the interim 
measure. In the case of a Council recommendation for interim measures, 
the Council must be actively preparing a fishery management plan, plan 
amendment, or proposed regulations to address the overfishing on a 
permanent basis. Interim measures addressing overfishing may be 
implemented even if they are not sufficient in and of themselves to 
stop overfishing.
    Under this proposed interim rule, states would have the option of 
implementing alternative measures that would result in the 40-percent 
reduction that is required to achieve the harvest limit in any year. 
The states could select a combination of minimum fish sizes, possession 
limits, and closed seasons. States that wished to implement equivalent 
measures would have to submit those proposed alternative measures to 
the Commission's Summer Flounder Technical Committee for approval. The 
states would be responsible for providing all analyses required to 
prove that the alternative measures would achieve the required 
reduction. If the Commission finds that the proposed alternative 
measures would achieve the required reduction, the state could then 
implement those alternative measures. Once a state equivalency proposal 
is approved by the Commission, the Commission would recommend to NMFS 
that a notification be published to waive the default measure and 
notify the public of the state's equivalent measures.
    It is possible that a state could decide to implement its 
equivalent measures while the EEZ measures are still in the proposed 
rule stage of rulemaking. The interim regulations clarify that, if the 
EEZ measures were modified in an interim final rule, a state would be 
required to provide additional analysis to the Technical Committee to 
establish that its current measures achieve the 40-percent reduction.
    This proposed interim rule responds to concerns voiced about the 
inappropriateness of certain coastwide measures for some states. For 
example, the summer flounder stock migrates north during the summer 
months, resulting in differences in seasonal availability. This 
differential in availability impacts on equitable choice of a season. 
Conservation equivalency will give these states the option of 
implementing a different closed season, as well as a different 
possession limit or minimum fish size, if they can prove that the 
combination of measures will achieve the required reduction. The 
default measures would be those coastwide measures that are proposed by 
NMFS as part of the recreational specification process. While the 
coastwide measures may result in some states reducing the recreational 
fishery more or less than the Monitoring Committee has recommended, the 
average coastwide reduction would achieve the harvest limit.
    Although permanent measures by the Council are being developed to 
address overfishing, it will take several months to complete and to 
implement these measures if they are approved. This proposed interim 
rule is consistent with the Magnuson-Stevens Act because it would form 
part of an overall management strategy to end overfishing and rebuild 
the summer flounder resource while recognizing variations and 
contingencies in the stock that demand flexibility among the states to 
achieve the fishing reduction target.

[[Page 23258]]

Scup

    At the November 1998 Monitoring Committee meeting, the Committee 
recommended that the Council consider an 8-inch (20.32- cm) minimum 
fish size, and a 35-fish possession limit. This recommendation would 
achieve the 1999 harvest limit of 1.24 million lb (0.562 million kg).
    The Council and Board reviewed the Committee's recommendation and 
recommended a 7-inch (17.78-cm) minimum fish size with no possession 
limit and no closed season for 1999. Because the 1998 harvest limit is 
not projected to be achieved, and, in fact, projected landings are also 
below the 1999 harvest limit, the Council and Board believe that the 
existing 7-inch (17.78-cm) minimum fish size would prevent the 
recreational catch from exceeding the harvest limit for 1999.

Black Sea Bass

    At the November 1998 Monitoring Committee meeting, the Committee 
recommended that the Council maintain the minimum fish size at 10-
inches (25.4-cm). This recommendation would achieve the 1999 harvest 
limit of 3.14 million lb (1.43 million kg).
    The Council and Board reviewed the Committee's recommendation and 
recommended the 10-inch (25.4-cm) minimum fish size. Because the 
recreational fishery is not projected to achieve its harvest limit for 
1998, neither the Committee nor the Council and Board felt it was 
necessary to maintain the 2-week closed season implemented in 1998. The 
Council and Board believe that maintaining the 10-inch (25.4-cm) 
minimum fish size would prevent the recreational catch exceeding the 
1999 harvest limit.
    NMFS requests public comments on all of the proposed specification 
measures. In addition, NMFS requests public comments on the proposed 
interim rule to allow states to implement measures in the summer 
flounder fishery that constitute equivalency.

Classification

    This proposed rule and proposed interim rule have been determined 
to be not significant for purposes of E.O. 12866.
    The Council prepared an initial regulatory flexibility analysis 
(IRFA) for this proposed rule, pursuant to 5 U.S.C. 603(a) of the RFA. 
A copy of this analysis is available from the Council (see ADDRESSES). 
The IRFA describes the impact this proposed rule, if adopted, would 
have on small entities. The proposed rule would implement 1999 
recreational measures for the summer flounder, scup, and black sea bass 
fisheries. The proposed interim rule would provide states with the 
authority to implement conservation measures in state waters that 
constitute equivalency. The 1999 harvest limit for summer flounder is 
7.41 million lb (3.36 million kg)--the same level specified for 1997 
and 1998. However, landings in 1997 were 11.86 million lb (5.38 million 
kg) and projected recreational landings in 1998 are 12.51 million lb 
(5.68 million kg). Based on the 1998 projection and the upward trend of 
recreational landings, the more stringent measures proposed in this 
rule are required to achieve a 40-percent reduction in the recreational 
fishery and to prevent the harvest limit from being exceeded again. It 
is probable that proposed management measures would restrict the 
recreational summer flounder fishery for 1999 and that these measures 
may cause some decrease in recreational satisfaction (i.e., the 
proposed closed season).
    Staff at the Northeast Fisheries Science Center estimated that 3.25 
percent of party/charter trips could be affected by the implementation 
of the summer flounder preferred measures. In other words, 74,490 
angler trips taken aboard party/charter boats in 1997 landed at least 
one summer flounder that was less than 15 inches (38 cm), or landed 
more than 8 summer flounder, or landed at least 1 summer flounder 
during the proposed season.
    Assuming angler effort in 1999 would be similar to 1997, party/
charter boat revenues associated with these trips can be estimated by 
multiplying the number of potentially affected trips in 1999 by the 
average fee ($57.92) paid by anglers. This results in party and charter 
boat earnings of $4,314,461. Analysis of the vessel trip report (VTR) 
data indicated that 309 party/charter vessels participated in the 
summer flounder fishery in 1997. Assuming that the same number of 
vessels will participate in 1999, the potential impact could be up to 
$13,963 per vessel ($4,314,461/309 = $13,963). As such, if the 
regulations proposed under the preferred alternative result in a 
decrease in the number of recreational fishing trips, on average, each 
party/charter vessel could lose up to $13,963 or 3.25 percent of their 
revenue in 1999 compared to 1997. However, losses of this magnitude are 
not likely to occur given that anglers will continue to have the 
ability to engage in catch and release fishing for summer flounder, and 
because of the numerous alternative target species available to 
anglers. Unfortunately, the lack of data makes it impossible to 
empirically estimate how sensitive the affected party/charter boat 
anglers might be to the proposed regulations. The fact that the 
proposed regulations affect the number and size of the fish that can be 
kept or landed and do not prohibit anglers from engaging in catch and 
release fishing, means that overall losses are likely to be lower.
    The Steinback and O'Neil (In-press) study suggest that at least 
some of the potentially affected anglers would not reduce their effort 
when faced with the landings restrictions proposed under the preferred 
alternative. Therefore, party/charter revenue losses per boat could 
range anywhere from no revenue loss up to 3.25 percent, on average, of 
total expected boat revenue in 1999 (given the assumptions regarding 
compliance rates and release mortality). Due to some uncertainty 
regarding the assumptions made to estimate the anticipated impacts of 
the proposed measures, an IRFA was prepared to analyze potential 
impacts and to seek public comment on the proposed measures and their 
impact on small entities.

Alternatives Considered But Rejected by the Council

    1. The implementation of the first rejected summer flounder 
alternative would reduce the possession limit from 8 to 6 fish in 
addition to closing the fishing season from August 1 to August 31. 
These measures could potentially reduce effort aboard party/charter 
boats by up to 8.04 percent assuming angler effort in 1999 would be 
similar to 1997. In other words, 184,277 (8.04 percent) angler trips 
taken aboard party/charter boats in 1997 landed at least one summer 
flounder that was less than 15 inches (38 cm), or landed more than 6 
summer flounder, or landed at least one summer flounder during the 
proposed closed season.
    Assuming angler effort in 1999 would be similar to 1997, 
multiplying the number of potentially affected trips in 1999 (184,277) 
by the average fee paid by anglers ($57.92) results in associated 
party/charter boat earnings of $10,673,324. Analysis of VTR data 
indicated that 309 party/charter vessels participated in the summer 
flounder fishery in 1997. Assuming that the same number of vessels will 
participate in 1999, the potential impact could be up to $34,542 per 
vessel (10,673,324/309). As such, if the regulations proposed under the 
preferred alternative result in a decrease in the number of 
recreational fishing trips, on average, each party/charter vessel could 
lose up to $34,542 or 8.04 percent of their revenue in 1999 compared to 
1997. However, losses of this magnitude are not likely to occur

[[Page 23259]]

given that anglers will continue to have the ability to engage in catch 
and release fishing for summer flounder, and because of the numerous 
alternative target species available to anglers. Unfortunately, very 
little information is available to empirically estimate how sensitive 
the affected party/charter boat anglers might be to the proposed 
regulations. The fact that the proposed regulations affect the number 
and size of the fish that can be kept or landed and do not prohibit 
anglers from engaging in catch and release fishing, the overall losses 
are likely to be somewhat lower. Therefore, party/charter revenue 
losses per boat could range anywhere from no revenue losses up to 8.04 
percent, on average, of total expected boat revenue in 1999 (given the 
above assumptions regarding compliance rates and release mortality).
    2. The implementation of the second rejected summer flounder 
alternative will reduce the possession limit from 8 to 4 fish in 
addition to closing the fishing season from January through June. These 
measures could potentially reduce effort aboard party/charter boats by 
up to 5.69 percent assuming angler effort in 1999 would be similar to 
1997. In other words, 130,415 (5.69 percent) angler trips taken aboard 
party/charter boats in 1997 landed at least one summer flounder that 
was less than 15 inches (38 cm), or landed more than 4 summer flounder, 
or landed at least one summer flounder during the proposed closed 
season.
    Assuming angler effort in 1999 would be similar to 1997, 
multiplying the number of potentially affected trips in 1999 (130,415) 
by the average fee paid by anglers ($57.92) results in associated 
party/charter boat earnings of $7,553,637. Analysis of VTR data 
indicated that 309 party/charter vessels participated in the summer 
flounder fishery in 1997. Assuming that the same number of vessels will 
participate in 1999, the potential impact could be up to $24,445 per 
vessel (7,553,637/309). As such, if the regulations proposed under the 
preferred alternative result in a decrease in the number of 
recreational fishing trips, on average, each party/charter vessel could 
lose up to $24,445 or 5.69 percent of their revenue in 1999 compared to 
1997. However, losses of this magnitude are not likely to occur given 
that anglers will continue to have the ability to engage in catch and 
release fishing for summer flounder, and because of the numerous 
alternative target species available to anglers. Unfortunately, very 
little information is available to empirically estimate how sensitive 
the affected party/charter boat anglers might be to the proposed 
regulations. The fact that the proposed regulations affect the number 
and size of the fish that can be kept or landed and do not prohibit 
anglers from engaging in catch and release fishing, the overall losses 
are likely to be somewhat lower. Therefore, party/charter revenue 
losses per boat could range anywhere from no revenue losses up to 5.69 
percent, on average, of total expected boat revenue in 1999 (given the 
above assumptions regarding compliance rates and release mortality).
    The 1999 scup recreational harvest limit of 1.24 million lb (0.562 
million kg) is a 25-percent reduction from the 1998 level of 1.552 
million lb (0.70 million kg). However, recreational scup landings for 
1998 were projected to be 0.869 million lb (0.39 million kg), well 
below the 1998 harvest limit. Given the declining trends in both catch 
and trips, it is unlikely that the 1999 harvest limit would result in a 
decline in the demand of party/charter boat trips, the only entities 
shown in Council analysis to be affected by these measures, despite the 
reduction from the 1998 harvest limit. Like summer flounder, it is 
likely that anglers would target other species when faced with 
potential reductions in the amount of scup they can catch. As such, it 
is unlikely that the 1999 scup harvest limit would have a substantial 
impact on the number of party/charter fishing trips. The 1999 black sea 
bass recreational harvest limit of 3.15 million lb (1.43 million kg) is 
unchanged from the 1998 harvest limit. In 1997, 3.15 million lb (1.43 
million kg) of black sea bass were landed and in 1998, 1.146 million lb 
(0.51 million kg) were projected to be landed. Because the recreational 
fishery is not anticipated to land the entire harvest limit for 1998, 
the 1999 harvest limit is not anticipated to alter the demand for 
party/charter trips, the only entities shown in Council analysis to be 
affected by these measures. Therefore, it is unlikely that the 1999 
black sea bass harvest limit would have a substantial impact on the 
number of party/charter fishing trips.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 27, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648-FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. Section 648.102 is revised to read as follows:


Sec. 648.102  Time restrictions.

    Vessels that are not eligible for a moratorium permit under 
Sec. 648.4(a)(3) and any person subject to the possession limit may 
fish for summer flounder only from May 29 through September 11. This 
time period may be adjusted pursuant to the procedures in Sec. 648.100.
    3. Section 648.107 is added to subpart G to read as follows:


Sec. 648.107  Conservation equivalent measures.

    (a) States may implement on an annual basis conservation equivalent 
measures that reduce the recreational catch to the same extent as the 
annual Federal summer flounder measures specified under Sec. 648.100(c) 
to achieve the recreational harvest limit in any year. These measures 
would be a different combination of minimum fish sizes, possession 
limits, and closed seasons that are the conservation equivalent of 
those Federal summer flounder measures specified on an annual basis.
    (b) A determination of equivalency would be made annually for any 
state proposing alternative recreational measures by the Summer 
Flounder Technical Committee of the Commission. Conservation equivalent 
measures may be implemented without Summer Flounder Technical Committee 
review, but only if states use the state-specific tables provided by 
the Commission and maintain a 15-inch (38-cm) TL minimum fish size.
    (1) Once a state receives a determination of equivalency from the 
Summer Flounder Technical Committee, the Commission will recommend to 
the Regional Administrator that a notification be published in the 
Federal Register to waive the annual Federal summer flounder measures 
specified under Sec. 648.100(c) and notify vessel permit holders of the 
equivalent measures approved by the Summer Flounder Technical Committee 
for landing summer flounder in that state.
    (2) States electing not to implement conservation equivalent 
measures or states that did not receive a determination of equivalency 
from the Summer Flounder Technical Committee would be required to 
implement the annual Federal summer flounder

[[Page 23260]]

measures specified under Sec. 648.100(c) in accordance with the 
provisions of the Interstate Fishery Management Plan for the Summer 
Flounder, Scup, and Black Sea Bass Fisheries.
[FR Doc. 99-10900 Filed 4-29-99; 8:45 am]
BILLING CODE 3510-22-F