[Federal Register Volume 64, Number 174 (Thursday, September 9, 1999)]
[Rules and Regulations]
[Pages 48965-48967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23444]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 990422103-9209-02; 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: Final rule.

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SUMMARY: SUMMARY: NMFS issues this final rule to implement annual 
Federal recreational measures for the 1999 summer flounder, scup, and 
black sea bass fisheries. The purpose of these measures is to prevent 
overfishing of the summer flounder, scup, and black sea bass resources. 
In addition, NMFS issues interim measures to allow states to implement 
a conservation equivalency provision. This provision allows states to 
implement measures for the summer flounder recreational fishery that 
are alternatives to the annual Federal measures, yet achieve a 
reduction in fishing mortality equivalent to that achieved by the 
annual Federal measures.

DATES: Effective September 9, 1999, except for Sec. 648.107 which is 
effective October 12, 1999.

ADDRESSES: Copies of the Environmental Assessment (EA), Regulatory 
Impact Review (RIR), and Final Regulatory Flexibility Analysis (FRFA), 
are available from: Jon C. Rittgers, Acting Regional Administrator, 
National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 
01930-2298.

FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst, 
(978) 281-9273.

SUPPLEMENTARY INFORMATION:

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 Fishery 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 submits 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 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. A 
proposed rule to implement annual Federal recreational measures for the 
1999 summer flounder, scup, and black sea bass recreational fisheries 
was published on April 30, 1999 (64 FR 23256), and contained various 
combinations of one or more management measures, such as minimum fish 
size, possession limit, and a closed season. The recreational measures 
contained in this final rule are unchanged from those that were 
published in the proposed rule, and are listed below. A complete 
discussion of the recreational measures appears in the proposed rule 
and is not repeated here.

                                           1999 Recreational Measures
----------------------------------------------------------------------------------------------------------------
                                                 Minimum Size        Possession
                                                   (length)            Limit               Closed Season
----------------------------------------------------------------------------------------------------------------
Summer Flounder                                15 inches (38 cm)           8-fish  September 12 of each year,
                                                                                    through May 28 of each
                                                                                    following year
Scup                                            7 inches (18 cm)             None  None
Black Sea Bass                                 10 inches (25 cm)             None  None
----------------------------------------------------------------------------------------------------------------

Interim Measure on Summer Flounder Conservation Equivalency

    The proposed rule for the annual recreational measures included an 
interim measure that would allow the states to implement recreational 
measures as alternatives to the annual Federal summer flounder measures 
that would result in the 40-percent reduction in the summer flounder 
catch in 1999 compared to 1998. A 40-percent reduction is necessary 
because the recreational harvest limit for 1999 is the same as it was 
in 1998, and there was about a 40-percent overage of that harvest limit 
in 1998. The states may select a combination of minimum fish sizes, 
possession limits, and closed seasons. States that wish to implement 
equivalent measures are required to submit proposed management options 
to the Commission for approval. In anticipation of implementation of 
the conservation equivalency provision, states have already selected 
alternative measures designed to achieve the

[[Page 48966]]

required 40-percent reduction in the recreational summer flounder 
harvest. The Commission has reviewed the states' proposed alternative 
measures and has found through the procedure described in 
Sec. 648.107(b) that they will achieve the summer flounder harvest 
reduction. Once the Commission approves a state equivalency proposal, 
the Commission is required to recommend to NMFS that a notice be 
published to waive the application of the annual Federal summer 
flounder measures specified in this rule within a given state, and 
notify the public of the state's equivalent measures. That 
recommendation is now being prepared by the Commission, and NMFS will 
publish a notice shortly after this final rule.
    The conservation equivalency provision relies on annual Federal 
summer flounder measures that are subject to public comment. The 
conservation equivalency of alternative state measures will be 
determined in comparison to the annual Federal summer flounder 
measures. There is no change to the annual Federal summer flounder 
measures identified in the proposed rule, so no further Commission 
action is required. No comments were received during the comment period 
on implementation of the conservation equivalency provision.
    The issuance of interim measures is authorized by section 305(c) of 
the Magnuson-Stevens Fishery Conservation and Management Act. The 
conservation equivalency provision addresses concerns for some states 
about the inappropriateness of annual Federal summer flounder measures 
to achieve the 40-percent summer flounder harvest reduction. It 
addresses overfishing by allowing states to implement conservation 
equivalent measures for the recreational summer flounder fishery that 
would result in the 40-percent reduction in catch required to achieve 
the 1999 harvest limit while not exceeding it. NMFS reminded the 
Council at its June 1999 meeting that the Council must include the 
conservation equivalent provision in an FMP amendment or framework 
action in order to establish it permanently.

Comments and Responses

    One comment was received from the Council concerning the summer 
flounder closed season.
     Comment: Council staff stated their belief that the summer 
flounder closed season proposed by NMFS differed from that adopted by 
the Council and the Commission; specifically, Council staff stated that 
the Council and Commission adopted a closed season only for the 1999 
calendar year from January 1 through May 28, 1999, and September 12 
through December 31, 1999.
     Response: NMFS finds that the Council staff mistakenly thought the 
Council intended to close the recreational summer flounder fishery for 
only the 1999 calendar year. A review of the administrative record 
concerning the actions discussed by the Council and Commission during 
their joint December 1998 meeting shows the following language in the 
final motion: ``a closure of September 12 through May 28.'' NMFS finds 
the dates published in the proposed rule reflect the intent of the 
Council/Commission. Further, if at a later date the Council and 
Commission decide to recommend only a 1999 closed season, then they may 
adjust the dates pursuant to the procedures in Sec. 648.100. Therefore, 
the dates associated with the closed season for the summer flounder 
recreational fishery will be from September 12 of each year, through 
May 28 of each following year.

Changes in the Final Rule From the Proposed Rule

    In Sec. 648.107, paragraph (b) is revised to improve clarity and by 
inserting the words ``or greater'' in the second sentence to clarify 
when conservation equivalent measures may be implemented without Summer 
Flounder Technical Committee review.

Classification

    This final rule is required by 50 CFR part 648.
    A review of the administrative record indicates the Council 
intended that the recreational fishery for summer flounder be closed 
September 12 through May 28. Continued harvest of summer flounder in 
the recreational fishery during a 30-day delay in the effective date 
would reduce the likelihood of attaining the objective of this rule 
(i.e., a 40-percent reduction in landings in 1999 compared to 1998). 
Meeting this objective is necessary to comply with the FMP's maximum 
fishing mortality rate for 1999, and to meet the rebuilding schedule. 
For these reasons, under 5 U.S.C. 553(d)(3), the AA finds for good 
cause that a 30-day delay in the effective date of this rule would be 
contrary to the public interest. Fishermen will be notified of the 
September 12 recreational fishery closure via NOAA weather radio, Coast 
Guard announcements, and other available means of notification.
    Because prior notice and an opportunity for public comment are not 
required for the interim measure (i.e., the conservation equivalency 
provision) by 5 U.S.C. 553, or any other law, the analytical 
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
are inapplicable.
    NMFS has completed a FRFA for the other provision of this rule 
(i.e., the September 12 through May 28 closed season for summer 
flounder), pursuant to 5 U.S.C. 604 of the Regulatory Flexibility Act. 
The FRFA describes the impact this final rule will have on small 
entities. A copy of the FRFA can be obtained from the Northeast 
Regional Office of NMFS (see ADDRESSES). A summary of the FRFA follows.
    The FRFA discusses (1) the need for, and objectives, of the rule; 
(2) public comments on the IRFA; (3) the number of small entities to 
which the rule will apply; (4) reporting and recordkeeping 
requirements; (5) reasons for selecting the alternatives adopted in the 
final rule and rejecting the alternatives; and (6) the measures that 
minimize the economic impact of this action.
    The need for, and objectives of, the final measures in the rule are 
to prevent overfishing of the summer flounder, scup, and black sea bass 
resources. 
    There were no public comments on the IRFA.
    Data from the Northeast Region's permit application database 
indicate that 710 vessels were permitted in 1997 to take part in the 
summer flounder, scup, and/or black sea bass fisheries in the EEZ. 
Analysis of NMFS Vessel Trip Report data indicates that 348 party/
charter vessels participated in the summer flounder, scup, or black sea 
bass fisheries in 1997. The final recreational measures apply to these 
entities.
    This rule does not propose new reporting or recordkeeping measures. 
There are no changes to existing reporting or recordkeeping 
requirements.
    Current summer flounder recreational measures are a 15-inch (38-cm) 
minimum fish size and an 8-fish possession limit. This rule does not 
change the current 15-inch (38-cm) minimum size and 8-fish possession 
limit, but implements a closed season from September 12 through May 28. 
As such, the difference between the summer flounder recreational 
measures and the status quo is the implementation of a closed season 
starting September 12, 1999. The three annual Federal measures are 
intended to reduce landings in 1999 by over 40 percent compared to 
1998. States are required to implement the annual Federal recreational 
management measures or other measures that will achieve a 40-percent 
reduction in landings. This would allow states to

[[Page 48967]]

deal with burden issues associated with the implementation of any 
component (e.g., seasonal closures) of this measure.
    For summer flounder, two alternatives other than the selected 
alternative were considered. These alternatives were: a) a 15-inch (38-
cm) minimum fish size, a 6-fish possession limit, and a closed season 
from August 1 to August 31; and b) a 15-inch (38-cm) minimum fish size, 
a 4-fish possession limit, and a closed season from January to June of 
each year. These alternatives could potentially reduce landings by 45 
percent. These restrictive limits (i.e., lower possession limits, 
greater minimum size limits, and/or shorter seasons) would prevent 
anglers from exceeding the recreational harvest limit in 1999. However, 
given the popularity of summer flounder among anglers as the most 
frequently sought after species in the Mid-Atlantic in 1997, the more 
limiting time frame proposed in the non-selected alternatives may 
affect angler satisfaction and/or demand for party/charter trips; 
therefore, they were rejected.
    This rule maintains the status quo for scup for 1999. Therefore, 
the current recreational management measure remains in effect (7-inch 
(18-cm) minimum size, no possession limit, and no closed season). The 
minimum size currently in effect could potentially reduce recreational 
landings by less than two percent.
    For scup, two alternatives other than the selected alternative were 
considered. These alternatives were: a) an 8-inch (20-cm) minimum fish 
size, a 25-fish possession limit, and no closed season; and b) an 8-
inch (20-cm) minimum fish size, a 35-fish possession limit, and no 
closed season. Both of these alternatives could potentially decrease 
landings by 5 percent over the selected alternative. Those alternatives 
were rejected based on concerns that cancellation of party/charter 
trips would result and cause adverse economic impacts.
    For black sea bass, this rule maintains the current management 
measures (10-inch (25-cm) minimum size, no possession limit, and no 
closed season for 1999). This no-change alternative was selected to 
potentially reduce recreational landings by approximately 14 percent. 
Two alternatives other than the selected alternative were considered. 
These alternatives were: a) a 10-inch (25-cm) minimum fish size, no 
possession limit, and a closed season from August 1 to August 15; and 
b) a 10-inch (25-cm) minimum fish size, a 20-fish possession limit, and 
no closed season. These alternatives could decrease landings by 15 
percent and 18 percent, respectively. These alternatives could result 
in a greater reduction in landings of approximately 1 percent and 4 
percent, respectively, than the selected alternative. Those 
alternatives were rejected because of concerns that the additional 
catch restrictions would result in cancellation of party/charter trips, 
and cause adverse economic impacts.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: September 2, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 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 for the recreational 
summer flounder fishery.

    (a) Through March 9, 2000, 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 by any state without a determination of 
equivalency by the 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) or greater minimum fish size.
    (1) Once a state receives a determination of equivalency from the 
Summer Flounder Technical Committee or a state implements conservation 
equivalent measures contained in the state-specific table provided by 
the Commission, 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 to 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 and not implementing 
conservation equivalent measures contained in the state-specific table 
provided by the Commission would be required to implement the annual 
Federal summer flounder measures specified under Sec. 648.100(c) in 
accordance with the provisions of the Fishery Management Plan for the 
Summer Flounder, Scup, and Black Sea Bass Fisheries.
[FR Doc. 99-23444 Filed 9-3-99; 3:44 pm]
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