[Federal Register Volume 69, Number 133 (Tuesday, July 13, 2004)]
[Rules and Regulations]
[Pages 41980-41984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15824]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.040326103-4198-02; I.D. 031504A]
RIN 0648-AQ82


Fisheries of the Northeastern United States; Recreational 
Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; 
Fishing Year 2004

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement recreational measures 
for the 2004 summer flounder, scup, and black sea bass fisheries. The 
intent of these measures is to prevent overfishing of the summer 
flounder, scup, and black sea bass resources.

DATES: Effective July 13, 2004.

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, Initial Regulatory Flexibility 
Analysis (EA/RIR/IRFA), and Final Regulatory Flexibility Analysis 
(FRFA) are available from Patricia A. Kurkul, Regional Administrator, 
Northeast Region, National Marine Fisheries Service, One Blackburn 
Drive, Gloucester, MA 01930-2298. The EA/RIR/IRFA is also accessible 
via the Internet at http://www.nero.noaa.gov/ro/doc/com.htm.

FOR FURTHER INFORMATION CONTACT: Sarah McLaughlin, Fishery Policy 
Analyst, (978) 281-9279, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The Summer Flounder, Scup, and Black Sea Bass Fishery Management 
Plan (FMP) and its implementing regulations found at 50 CFR part 648, 
subparts A, G (summer flounder), H (scup), and I (black sea bass), 
describe the process for specifying annual recreational measures. The 
recreational harvest limits for summer flounder, scup, and black sea 
bass fisheries were published as part of the 2004 specifications on 
January 14, 2004 (69 FR 2074). The 2004 coastwide recreational harvest 
limits are 11.21 million lb (5,085 mt) for summer flounder, 3.99 
million lb (1,810 mt) for scup, and 4.01 million lb (1,819 mt) for 
black sea bass. The 2004 quota specifications, inclusive of the 
recreational harvest limits, were determined to be consistent with the 
2004 target fishing mortality rate (F) for summer flounder and the 
target exploitation rates for scup and black sea bass.
    The proposed rule to implement annual Federal recreational measures 
for the 2004 summer flounder, scup, and black sea bass fisheries was 
published on April 14, 2004 (69 FR 19805), and contained management 
measures (minimum fish sizes, possession limits, and fishing seasons) 
intended to keep annual recreational landings from exceeding the 
specified harvest limits. A complete discussion of the development of 
the recreational measures appeared in the preamble of the proposed rule 
and is not repeated here.
    Table 1 contains the coastwide Federal measures for scup and black 
sea bass that are being implemented. As described below, NMFS has added 
one day (September 7) to the open season for

[[Page 41981]]

scup as a result of updated landings information for 2003. The 
recreational measures for black sea bass contained in this final rule 
are unchanged from those published in the proposed rule. For summer 
flounder, this final rule implements conservation equivalency, as the 
process was described in the proposed rule. The management measures 
will vary according to the state of landing (see Table 2). All minimum 
fish sizes discussed below are total length (TL) measurements of the 
fish, i.e., the straight-line distance from the tip of the snout to the 
end of the tail while the fish is lying on its side.

                                       Table 1--2004 Recreational Measures
----------------------------------------------------------------------------------------------------------------
                                                                       Possession
                Species                  Minimum Size (total length)      Limit              Open Season
----------------------------------------------------------------------------------------------------------------
Summer Flounder.......................                    Varies according to state of landing
Scup..................................          10 inches (25.4 cm)       50 fish    January 1 through last day
                                                                                    of February,and September 7
                                                                                            through November 30
Black Sea Bass........................          12 inches (30.5 cm)       25 fish   January 1 through September
                                                                                    7, and September 22 through
                                                                                                    November 30
----------------------------------------------------------------------------------------------------------------


                                        Table 2--2004 State Recreational Management Measures for Summer Flounder
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      Possession Limit (number
                      State                         Minimum Size (inches)       Minimum Size (cm)             of fish)                 Open Season
--------------------------------------------------------------------------------------------------------------------------------------------------------
MA..............................................                     16.5                      41.9                         7                Year-Round
RI..............................................                     17.5                      44.5                         7   April 1 through December
                                                                                                                                                     31
CT..............................................                       17                      43.2                         6                Year-Round
NY*.............................................                       18                      45.7                         1                Year-Round
NJ..............................................                     16.5                      41.9                         8   May 8 through October 11
DE..............................................                     17.5                      44.5                         4                Year-Round
MD..............................................                       16                      40.6                         3                Year-Round
VA..............................................                       17                      43.2                         6          March 29 through
                                                                                                                                            December 31
NC..............................................                       14                      35.6                         8                Year-Round
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Under the provisions of Framework Adjustment 2 to the FMP, because NY's conservation equivalency proposal was disapproved by the Atlantic States Marine
  Fisheries Commission (Commission), NY is required to implement the precautionary default measures.

Changes from the Proposed Rule

    In the proposed rule published on April 14, 2004 (69 FR 19805), 
NMFS indicated that a 58-percent reduction in scup landings would be 
necessary to achieve the target, and proposed scup open seasons of 
January 1 through February 29, and September 8 through November 30. 
Since publication of the proposed rule, and based on updated landings 
information for 2003 (9.3 million lb (4,233 mt) rather than 9.6 million 
lb (4,354 mt)), NMFS has determined that the required reduction in 
landings is 57 percent. The revised information allows for the 
extension of the open season by one day in September. Therefore, the 
second open season would begin September 7 rather than September 8. 
Section 648.122(g) is amended accordingly.
    At the time the proposed rule was published, it was not known which 
states would have their conservation equivalency proposals approved by 
the Commission. The Commission approved the proposals of MA, RI, CT, 
NJ, DE, MD, VA, and NC. Based on the recommendation of the Commission, 
the Regional Administrator finds that the recreational fishing measures 
proposed to be implemented by these states for 2004 are the 
conservation equivalent of the season, minimum size, and possession 
limit prescribed in Sec. Sec.  648.102, 648.103, and 648.105(a), 
respectively. According to the regulation at Sec.  648.107(a)(1), 
vessels subject to the recreational fishing measures of this part 
landing summer flounder in one of these states with an approved 
conservation equivalency program shall not be subject to the more 
restrictive Federal measures, and shall instead be subject to the 
recreational fishing measures implemented by the state in which they 
land. Section 648.107(a) is amended accordingly.
    Based on the recommendation of the Commission, the Regional 
Administrator finds that the recreational fishing measures proposed to 
be implemented by NY for 2004 are not the conservation equivalent of 
the season, minimum size, and possession limit prescribed in Sec. Sec.  
648.102, 648.103, and 648.105(a), respectively. Therefore, according to 
Sec.  648.107(b), federally permitted vessels subject to the 
recreational fishing measures of this part, and other recreational 
fishing vessels registered in states and subject to the recreational 
fishing measures in this part, that land in NY are subject to the 
following precautionary default measures: An open season January 1 
through December 31; a minimum size of 18 inches (45.7 cm) total 
length; and a possession limit of one fish.

Comments and Responses

    Six comment letters were received, via e-mail, regarding the 
proposed recreational management measures.
    Comment 1: Three of the comment letters indicated opposition to any 
change to the regulations that would result in more restrictive 
measures for the subject fisheries, especially summer flounder.
    Response: Through this final rule, NMFS approves conservation 
equivalency for the recreational summer flounder. The Commission's 
conservation equivalency guidelines require each state, using state-
specific equivalency tables, to determine and implement an appropriate 
possession limit, minimum fish size, and closed

[[Page 41982]]

season to achieve the landings reduction necessary for each state. The 
intention of conservation equivalency is for the combined effect of all 
of the states' management measures to achieve the same level of 
conservation as would Federal coastwide measures developed to achieve 
the recreational harvest limit, if implemented by all of the states. 
The state-specific tables are adjusted to account for the past 
effectiveness of the regulations in each state. Landings information 
for 2003 indicates that NY and NJ must reduce recreational summer 
flounder landings in 2004. Therefore, it is necessary for these states 
to implement more restrictive measures than implemented for 2003 in 
order to effect the required reductions.
    Comment 2: One of the comment letters expressed support for 
maintaining the black sea bass regulations rather than relaxing them, 
given that there may a shift of effort from summer flounder to black 
sea bass. This letter also indicated concern about the Marine 
Recreational Fisheries Statistics Survey (MRFSS) data on which the 
recommended summer flounder reduction for NY is based, and about 
implementation of different summer flounder regulations in neighboring 
states.
    Response: NMFS agrees that the black sea bass management measures 
implemented for 2003 should be maintained (as adjusted for the 2004 
calendar), both to provide regulatory consistency and predictability to 
the party/charter and recreational fishing sectors and because of the 
possibility that relaxation of the management measures may result in 
the 2004 landings target being exceeded, resulting in the need for 
stricter measures in 2005.
    To respond to concerns regarding the MRFSS landings estimated for 
2003, the NMFS Recreational Fishery Statistics Team re-examined the 
2003 summer flounder and scup harvest estimates relative to those 
produced for the previous 5 years, and found no errors in the data or 
estimates for either NY or NJ. Its review indicates that both the 
number of successful trips and the average number of fish increased 
significantly in both the party/charter and private/rental boat modes 
in those states, and these increases account for the increase in the 
landings estimates. The Monitoring Committees, the Mid-Atlantic Fishery 
Management Council (Council), and NMFS base their recommendations and 
decisions regarding recreational measures for the summer flounder, 
scup, and black sea bass fisheries on the MRFSS landings because they 
are considered the best information available.
    As indicated in the response to Comment 1, under conservation 
equivalency, each state uses state-specific tables to determine and 
implement an appropriate possession limit, minimum fish size, and 
closed season to achieve the landings reduction necessary for each 
state. Because last year's landings in each state vary as a percentage 
of the state's target, the measures that a state must implement to hold 
this year's landings to within the target will also vary. Thus, there 
may be differing management measures implemented in neighboring states 
under the conservation equivalency process.
    Comment 3: One commenter submitted two comment letters that 
indicate support for marine protected areas, reduction of fishing 
quotas in general, and fisheries enforcement; and opposition of quota 
allocation to commercial entities, any increase to the research set-
aside quota for scup, and fishing opportunities in states that exceed 
their summer flounder recreational harvest limit.
    Response: This rule implements management measures (minimum fish 
sizes, possession limits, and fishing seasons) intended to keep annual 
recreational landings from exceeding the specified harvest limits. 
While NMFS acknowledges that consideration of marine protected areas, 
sector allocation shares, and fisheries enforcement may be important, 
this rule is not the proper mechanism to address these general issues. 
The FMP does not allow for closure of the summer flounder recreational 
fishery, or a reduction of a state's summer flounder quota, as a 
consequence of overharvest of a state's recreational harvest limit.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Assistant Administrator for Fisheries, NOAA, finds, for certain 
measures contained in this rule, good cause pursuant to 5 U.S.C 
553(d)(3) to make this rule effective immediately, thereby waiving the 
30-day delayed effectiveness date required by 5 U.S.C. 553. 
Additionally, pursuant to 5 U.S.C 553(d)(1), certain measures in this 
rule relieve a restriction and are therefore not subject to a delay in 
effective date. The linchpin of NMFS's decision whether to proceed with 
the coastwide measures or to give effect to the conservation equivalent 
measures adopted by the individual states is advice from the Commission 
as to the results of its review of the plans of the individual states. 
The measures implemented by NY on May 1, 2004, differed from the 
proposals approved by the Commission's Technical Committee for that 
state in March 2004, and were determined by the Technical Committee to 
be inconsistent with the annual specifications set by the Commission's 
Summer Flounder Management Board (Board). The Commission gave NY until 
June 15, 2004, to implement a management program that would achieve the 
required 48.5-percent reduction in landings. On June 17, 2004, the 
Commission informed NMFS that NY has been found out of compliance and 
that the management programs implemented by the other states were 
approved by the Board.
    During the pendency of the Commission's process and subsequent 
preparation of this rule by NMFS, the recreational fisheries for these 
three species have commenced. The party and charter boats from the 
various states are by far the largest component of the recreational 
fishery that fish in the Federal exclusive economic zone. The Federal 
coastwide regulatory measures for the three species that were codified 
last year remain in effect. The Federal coastwide measures for the 
summer flounder fishery are more restrictive than the measures adopted 
by the states, approved by the Commission as conservation equivalents, 
and implemented by NMFS in this rule. Further, the fishing seasons for 
the black sea bass fishery that this rule implements is less 
restrictive than the season in the Federal coastwide measures currently 
in effect. Federally permitted recreational vessels subject to these 
more restrictive measures are currently operating at a disadvantage 
since non-Federally permitted recreational vessels can fish in state 
waters under more liberal measures. With respect to the scup fishery, 
the fishing season must be shortened by over a month to achieve the 
required reduction in recreational fishing effort. The Federal 
coastwide measures currently in effect allow the recreational fishing 
season for scup to reopen on July 1 instead of the September 7 
reopening date in this rule. Failure to have this rule effective 
immediately will allow recreational overages this year, leading to 
increased restrictions on the recreational scup fishery next year.
    Included in this final rule is the FRFA prepared pursuant to 5 
U.S.C. 604(a). The FRFA incorporates the economic impacts summarized in 
the IRFA for the proposed rule (69 FR 19805), the comments on, and 
responses to, the proposed rule, and the analyses

[[Page 41983]]

completed in support of this action. A copy of the FRFA is available 
from the Council (see ADDRESSES).

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why action by the agency is being 
taken and the objectives of 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

    Six comments were received on the measures contained in the 
proposed rule. No comments were received on the IRFA or the economic 
impact of the rule. No changes to the proposed rule were required to be 
made as a result of public comments. For a summary of the comments 
received, refer to the section above titled ``Comments and Responses.''

Description and Estimate of Number of Small Entities to which Rule Will 
Apply

    The Council estimated that the proposed action could affect any of 
the 775 vessels possessing a Federal party/charter permit for summer 
flounder, scup, and/or black sea bass in 2002, the most recent year for 
which complete permit data are available. Only 327 of these vessels 
reported active participation in the recreational summer flounder, 
scup, and/or black sea bass 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.

Description of the Steps Taken to Minimize Economic Impact on Small 
Entities

    Under the conservation equivalency approach, each state may 
implement unique management measures appropriate to that state to 
achieve state-specific harvest limits, as long as the combined effect 
of all of the states' management measures achieves the same level of 
conservation as would Federal coastwide measures developed to achieve 
the annual recreational harvest limit. The conservation equivalency 
approach allows states flexibility in the specification of management 
measures, unlike the application of one set of coastwide measures. It 
is not possible to further mitigate economic impacts on small entities 
because the specification of the recreational management measures 
(possession limits, minimum fish size, and fishing seasons) contained 
in this final rule is constrained by the conservation objectives of the 
FMP, and implemented at 50 CFR part 648 under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).
    The economic analysis assessed the impacts of the various 
management alternatives. In the EA, the no action alternative for each 
species is defined as the continuation of the management measures as 
codified for the 2003 fishing season. In consideration of the Council-
recommended recreational harvest limits established for the 2004 
fishing year, implementation of the same recreational measures 
established for the 2003 fishing year would be inconsistent with the 
goals and objectives of the FMP and its implementing regulations, and, 
because it could result in overfishing of the scup fishery, would be 
inconsistent with National Standard 1 of the Magnuson-Stevens Act. 
Therefore, the status quo alternative was not considered to be a 
reasonable alternative to the preferred action and its collective 
impacts were not analyzed in the EA/RIR/IRFA. The no action measures, 
with open seasons modified slightly for the 2004 calendar, were 
analyzed in Alternative 2.
    At this time, it is not possible to determine the economic impact 
of summer flounder conservation equivalency on each state. However, it 
is likely to be proportional to the level of landings reductions 
required. If the conservation equivalency alternative is effective at 
achieving the recreational harvest limit, then it is likely to be the 
only alternative that minimizes economic impacts, to the extent 
practicable, yet achieves the biological objectives of the FMP. Because 
states have a choice as to the specific measures to apply to landings 
in each state, it is more rational for the states to adopt conservation 
equivalent measures that result in fewer adverse economic impacts than 
to adopt the more restrictive measures contained in the precautionary 
default alternative (i.e., only one fish measuring at least 18 inches 
(45.7 cm)).

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide will be sent 
to all holders of Federal party/charter permits issued for the summer 
flounder, scup, and black sea bass fisheries. In addition, copies of 
this final rule and guide (i.e., permit holder letter) are available 
from NMFS (see ADDRESSES) and at the following website: http://www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: July 7, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

0
2. In Sec.  648.107, paragraph (a) introductory text is revised to read 
as follows:


Sec.  648.107  Conservation equivalent measures for the summer flounder 
fishery.

    (a) The Regional Administrator has determined that the recreational 
fishing measures proposed to be implemented by the states of 
Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, 
Maryland, Virginia, and North Carolina for 2004 are the conservation 
equivalent of the season, minimum size, and possession limit prescribed 
in Sec. Sec.  648.102, 648.103, and 648.105(a), respectively. This 
determination is based on a recommendation from the Summer Flounder 
Board of the Atlantic States Marine Fisheries Commission.
* * * * *

0
3. In Sec.  648.122, paragraph (g) is revised to read as follows:


Sec.  648.122  Time and area restrictions.

* * * * *
    (g) Time restrictions. Vessels that are not eligible for a 
moratorium permit under Sec.  648.4(a)(6), and fishermen subject to the 
possession limit, may not possess scup, except from January 1 through 
the last day of February, and from September 7 through November 30. 
This time period may be adjusted pursuant to the procedures in Sec.  
648.120.

[[Page 41984]]


0
4. Section 648.142 is revised to read as follows:


Sec.  648.142  Time restrictions.

    Vessels that are not eligible for a moratorium permit under Sec.  
648.4(a)(7), and fishermen subject to the possession limit, may not 
possess black sea bass, except from January 1 through September 7, and 
September 22 through November 30. This time period may be adjusted 
pursuant to the procedures in Sec.  648.140.
[FR Doc. 04-15824 Filed 7-12-04; 8:45 am]
BILLING CODE 3510-22-S