[Federal Register Volume 70, Number 115 (Thursday, June 16, 2005)]
[Rules and Regulations]
[Pages 35042-35046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11837]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050304059-5146-02; I.D. 022805D]
RIN 0648-AS21


Fisheries of the Northeastern United States; Recreational 
Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; 
Fishing Year 2005

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 
management measures for the 2005 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 18, 2005, except for the amendment to Sec.  
648.107(a) introductory text, which is effective June 16, 2005.

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, and Initial Regulatory 
Flexibility Analysis (EA/RIR/IRFA) are available from Daniel Furlong, 
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, 
Federal Building, 300 South

[[Page 35043]]

Street, Dover, DE 19901-6790. The EA/RIR/IRFA is also accessible via 
the Internet at http://www.nero.noaa.gov/ro/doc/com.htm. The Final 
Regulatory Flexibility Analysis (FRFA) consists of the IRFA, public 
comments and responses contained in this final rule, and the summary of 
impacts and alternatives contained in this final rule. Copies of the 
small entity compliance guide are available from Patricia A. Kurkul, 
Regional Administrator, Northeast Region, National Marine Fisheries 
Service, One Blackburn Drive, Gloucester, MA 01930-2298.

FOR FURTHER INFORMATION CONTACT: Sarah McLaughlin, Fishery Policy 
Analyst, (978) 281-9279, fax (978) 281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The summer flounder, scup, and black sea bass fisheries are managed 
cooperatively by the Atlantic States Marine Fisheries Commission 
(Commission) and the Mid-Atlantic Fishery Management Council (Council), 
in consultation with the New England and South Atlantic Fishery 
Management Councils. The Summer Flounder, Scup, and Black Sea Bass 
Fishery Management Plan (FMP) and its implementing regulations, which 
are found at 50 CFR part 648, subparts A (general provisions), G 
(summer flounder), H (scup), and I (black sea bass), describe the 
process for specifying annual recreational management measures that 
apply in the Exclusive Economic Zone (EEZ). The states manage these 
fisheries within 3 miles of their coasts, under the Commission's plan 
for summer flounder, scup, and black sea bass. The Federal regulations 
govern vessels fishing in the EEZ, as well as vessels possessing a 
Federal fisheries permit, regardless of where they fish.
    The 2005 coastwide recreational harvest limits are 11.98 million lb 
(5,434 mt) for summer flounder, 3.96 million lb (1,796 mt) for scup, 
and 4.13 million lb (1,873 mt) for black sea bass. The 2005 quota 
specifications, inclusive of the recreational harvest limits, were 
determined to be consistent with the 2005 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 2005 summer flounder, scup, and black sea bass fisheries was 
published on March 15, 2005 (70 FR 12639), 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 management measures appeared in the preamble of the 
proposed rule and is not repeated here. All minimum fish sizes 
discussed below are total length 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. All possession limits discussed 
below are per person.
    Based on the recommendation of the Commission, the Regional 
Administrator finds that the recreational summer flounder fishing 
measures proposed to be implemented by the states of Massachusetts 
through North Carolina for 2005 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 a state 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) has been amended accordingly. The 
management measures will vary according to the state of landing, as 
specified in the following table.

Table 1--2005 State Recreational Management Measures for Summer Flounder
------------------------------------------------------------------------
   State      Minimum Fish Size    Possession Limit     Fishing Season
------------------------------------------------------------------------
MA           17 inches (43.2 cm)  7 fish              January 1 through
                                                       December 31
------------------------------------------------------------------------
RI           17.5 inches (44.5    7 fish              April 1 through
              cm)                                      December 31
------------------------------------------------------------------------
CT           17.5 inches (44.5    6 fish              April 30 through
              cm)                                      December 31
------------------------------------------------------------------------
NY           17.5 inches (44.5    5 fish              April 29 through
              cm)                                      October 31
------------------------------------------------------------------------
NJ           16.5 inches (41.9    8 fish              May 7 through
              cm)                                      October 10
------------------------------------------------------------------------
DE           17.5 inches (44.5    4 fish              January 1 through
              cm)                                      December 31
------------------------------------------------------------------------
MD\*\        15.5 inches (39.4    4 fish              January 1 through
              cm)                                      December 31
------------------------------------------------------------------------
VA           16.5 inches (41.9    6 fish              January 1 through
              cm)                                      December 31
------------------------------------------------------------------------
NC           14 inches (35.6 cm)  8 fish              January 1 through
                                                       December 31
------------------------------------------------------------------------
\*\Measures for the ocean waters off MD in the Atlantic Ocean and
  coastal bays; for the Chesapeake Bay, a 15-inch (38.1-cm) minimum fish
  size, a 2-fish possession limit, and a fishing season of January 1
  through December 31 applies.

    Table 2 contains the coastwide Federal measures for scup and black 
sea bass that are being implemented. These measures are unchanged from 
those published in the proposed rule.

[[Page 35044]]



 Table 2--2005 Scup and Black Sea Bass Recreational Management Measures
------------------------------------------------------------------------
                 Minimum Fish Size
  Fishery   --------------------------  Possession     Fishing Season
                inches         cm         Limit
------------------------------------------------------------------------
Scup         10           25.4         50 fish      January 1 through
                                                     last day of
                                                     February, and
                                                     September 18
                                                     through November 30
------------------------------------------------------------------------
Black Sea    12           30.5         25 fish      January 1 through
 Bass                                                December 31
------------------------------------------------------------------------

    In the proposed rule, NMFS indicated that a 9-percent reduction in 
scup landings would be necessary to achieve the 2005 scup recreational 
target. NMFS disapproved the Council's scup recommendation (Scup 
Alternative 1), which would maintain the status quo coastwide 
management measures of a 10-inch (25.4-cm) minimum fish size, a 50-fish 
possession limit, and open seasons of January 1 through February 28, 
and September 7 through November 30, on the basis that maintaining the 
existing regulations would not achieve of the 2005 scup recreational 
target. NMFS requested comment on the following two alternatives 
presented by the Council that are expected to reduce recreational 
landings by the required 9 percent: A 10-inch (25.4-cm) minimum fish 
size, a 50-fish possession limit, and open seasons of January 1 through 
February 28, and September 18 through November 30 (Scup Alternative 2); 
and a 10-inch (25.4-cm) minimum fish size, a 50-fish possession limit, 
and open seasons of January 1 through February 28, and September 12 
through September 30 (Scup Alternative 3). No comments were received 
specifically regarding these two alternatives. Upon further analysis 
following publication of the proposed rule, NMFS has determined that 
the fishing season presented in Scup Alternative 3 was intended to be 
January 1 through February 28, and September 12 through October 31, 
i.e., it is the opening of the fishery for these periods that would 
effect a 9-percent reduction. As presented in the proposed rule, Scup 
Alternative 3 would achieve a 34-percent reduction. Council staff have 
verified that the use of September 30 in the alternative was a 
recording error. Taking into account input regarding the Mid-Atlantic 
party/charter sector from the Council's Scup Industry Advisory Panel 
that a fall fishing season of September 18 through November 30 would be 
preferable to September 12 through October 31, this final rule 
implements Scup Alternative 2.
    As in the past 3 years, the scup fishery in state waters will be 
managed under a regional conservation equivalency system developed 
through the Commission. Because the Federal FMP does not contain 
provisions for conservation equivalency, and states may adopt their own 
unique measures, the Federal and state recreational scup management 
measures will differ for the 2005 season.

Corrections to the Summer Flounder and Scup Regulations

    This final rule also makes two corrections to the regulations at 
Sec. Sec.  648.104 and 648.123, respectively. In the final rule to 
implement measures contained in Framework Adjustment 5 to the FMP (69 
FR 62818, October 28, 2004, FR Doc. 04-24107), the paragraph referring 
to the requirements of the summer flounder small-mesh exemption area 
letter of authorization was inadvertently published as Sec.  
648.104(b)(1)(I) rather than Sec.  648.104(b)(1)(i). This final rule 
corrects that reference to be Sec.  648.104(b)(1)(i). In the final rule 
to implement the 2005 annual summer flounder, scup, and black sea bass 
specifications, and other commercial scup measures (70 FR 303, January 
4, 2005, FR Doc. 04-28752), the threshhold level to trigger the scup 
minimum mesh size requirement for otter trawl vessels during the scup 
Summer period (May 1 through October 31) was increased from 100 lb 
(45.4 kg) to 200 lb (90.7 kg). This change should also have been 
reflected in Sec.  648.123(e), the paragraph regarding stowage of nets 
by trawl vessels fishing for scup. This final rule makes that change to 
be consistent with the threshhold level listed in the minimum mesh size 
regulations.

Comments and Responses

    Two comment letters were received regarding the proposed 
recreational management measures (70 FR 12639, March 15, 2005).
    Comment 1: One commenter did not specify the fishery for which he 
made comments, but NMFS understands the comments to pertain to scup. 
The commenter, a CT recreational angler, would prefer a minimum fish 
size of 9 inches (22.9 cm), a possession limit of 40 fish, and a 
fishing season of July 1 through October 31, to reduce the number of 
injured fish being returned to the water and to allow for a longer 
fishing season.
    Response: The implementation of the recreational scup management 
measures suggested by the commenter would result in a substantial 
increase in landings. Although a reduction in landings would be 
expected from the implementation of a 9-inch (22.9-cm) minimum fish 
size and a possession limit of 40 fish, it is far too small to offset 
the increase in landings that would result from the suggested fishing 
season, which spans the months of July through October. To achieve the 
2005 scup recreational harvest limit, consistent with the mortality 
objectives of the FMP, NMFS considered only alternatives expected to 
reduce landings in 2005 by at least 9 percent or more. As indicated 
above, NMFS selected Scup Alternative 2, which would allow the 
recreational scup fishery to remain open for substantially more days 
during the fall period than would Scup Alterative 3, as clarified.
    Comment 2: The other commenter indicated support for shorter 
fishing seasons, marine protected areas, and reduction of fishing 
quotas in general.
    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. As 
described in the proposed rule, the FMP established Monitoring 
Committees (Committees) for the summer flounder, scup, and black sea 
bass fisheries, consisting of representatives from the Commission, the 
Mid-Atlantic, New England, and South Atlantic Councils, and NMFS. The 
FMP and its implementing regulations require the Committees to review 
scientific and other relevant information annually and to recommend 
management measures (i.e., minimum fish size, possession limit, and 
fishing season) necessary to achieve the recreational harvest limits 
established for each of the three fisheries for the upcoming fishing 
year. While NMFS acknowledges that consideration of marine protected 
areas

[[Page 35045]]

and quotas is important, this rule is not the proper mechanism to 
address these general issues.

Classification

    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    The Assistant Administrator for Fisheries, NOAA, finds, for the 
summer flounder recreational measures contained in this rule (Sec.  
648.107(a)) , good cause pursuant to 5 U.S.C 553(d)(3) to make that 
portion of this rule effective immediately, thereby waiving the 30-day 
delayed effectiveness date required by 5 U.S.C. 553. The linchpin of 
NMFS's decision whether to proceed with the coastwide measures or to 
give effect to the conservation equivalent measures is advice from the 
Commission as to the results of its review of the plans of the 
individual states. This advice has only recently been received via a 
letter dated April 21, 2005. 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 EEZ. 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 and approved by the Commission as conservation 
equivalents, and implemented by NMFS in this rule. 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.
    In addition, NMFS faced an unavoidable delay in the implementation 
of this rule as a result of delayed submission of the Council's Coastal 
Zone Management Act consistency determination letters for review by the 
responsible state agencies (ME to NC). Because these letters were not 
issued until March 30, 2005, agency action cannot be taken until May 
30, 2005, unless responses from the states are received earlier. 
Because implementation of summer flounder conservation equivalent 
measures would be preferable to the coastwide measures that will remain 
in place until publication of this final rule, the states have agreed 
to expedite their responses and have concurred with the consistency 
determination.
    Because implementation of the proposed scup and black sea bass 
measures is not as time sensitive, since the proposed changes to the 
current scup and black sea bass affect the fall fishery, the waiver of 
the 30-day delay in effectiveness is for the recreational summer 
flounder measures only.
    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, the comments on, and responses to, the proposed rule, and the 
analyses completed in support of this action. A copy of the EA/RIR/IRFA 
is available from the Council (see ADDRESSES).

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being taken, and 
the objectives of and legal basis for this final rule are explained in 
the preambles to the proposed rule and this final rule and are not 
repeated here.

Summary of Significant Issues Raised in Public Comments

    The two comment letters received on the proposed rule did not 
specifically address the potential economic impact of the rule. No 
changes to the proposed rule were required to be made as a result of 
the public comments. For a summary of the comments received, and the 
responses thereto, refer to the ``Comments and Responses'' section of 
this preamble.

Description and Estimate of Number of Small Entities to Which This Rule 
Will Apply

    The Council estimated that the proposed measures could affect any 
of the 777 vessels possessing a Federal charter/party permit for summer 
flounder, scup, and/or black sea bass in 2003, the most recent year for 
which complete permit data are available. However, only 337 of these 
vessels reported active participation in the recreational summer 
flounder, scup, and/or black sea bass fisheries in 2003.

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 
(minimum fish size, possession limits, and fishing seasons) contained 
in this final rule is constrained by the conservation objectives of the 
FMP.
    The economic analysis conducted in support of this action 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 2004 fishing season. In 
consideration of the Council-recommended recreational harvest limits 
established for the 2005 fishing year, implementation of the same 
recreational measures established for the 2004 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 no action alternatives for 
each fishery were not considered to be reasonable alternatives to the 
preferred actions for each fishery and their collective impacts were 
not analyzed in the EA/RIR/IRFA. The no action measures were analyzed 
in Summer Flounder Alternative 2, Scup Alternative 1, and Black Sea 
Bass 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. Under 
Sec.  648.107,

[[Page 35046]]

vessels landing summer flounder in any state that does not implement 
conservation equivalent measures are subject to the precautionary 
default measures, consisting of an 18-inch (45.7-cm) minimum fish size, 
a possession limit of one fish, and no closed season. The suites of 
conservation equivalent measures proposed by each state are less 
restrictive than the precautionary default measures. Therefore, 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.
    For the proposed rule, average party/charter losses for each of the 
18 potential combinations of alternatives were estimated for federally 
permitted vessels by multiplying the number of potentially affected 
trips in 2005 in each state by the estimated average access fee paid by 
party/charter anglers in the Northeast Region in 2004. Predicted 
average losses for NY were presented as an example, and ranged from 
$1,917 per vessel under the combined effects of Summer Flounder 
Alternative 2, Scup Alternative 1, and Black Sea Bass Alternative 1, to 
$8,817 per vessel under the combined effects of the summer flounder 
precautionary default (considered in Summer Flounder Alternative 1), 
Scup Alternative 3, and Black Sea Bass Alternative 2 or 3 (assuming a 
25-percent reduction in effort for affected trips). Analyses for the 
combinations including Scup Alternative 3 have been repeated using the 
revised fishing season of January 1 through February 28, and September 
18 through November 30. The result is that predicted average losses for 
NY range from $1,917 per vessel under the combined effects of Summer 
Flounder Alternative 2, Scup Alternative 1, and Black Sea Bass 
Alternative 1, to $8,732 per vessel under the combined effects of the 
summer flounder precautionary default (considered in Summer Flounder 
Alternative 1), Scup Alternative 3, and either Black Sea Bass 
Alternative 2 or 3.

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: June 9, 2005.
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.  648.104, the first sentence of paragraph (b)(1) is revised 
to read as follows:


Sec.  648.104  Gear restrictions.

* * * * *
    (b) * * *
    (1) Vessels issued a summer flounder moratorium permit, a summer 
flounder small-mesh exemption area letter of authorization (LOA), 
required under paragraph (b)(1)(i) of this section, and fishing from 
November 1 through April 30 in the exemption area, which is east of the 
line that follows 72[deg]30.0' W. long. until it intersects the outer 
boundary of the EEZ (copies of a map depicting the area are available 
upon request from the Regional Administrator). * * *
* * * * *

0
3. 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 Massachusetts through 
North Carolina for 2005 are the conservation equivalent of the season, 
minimum fish 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
4. In Sec.  648.122, paragraph (g) is revised to read as follows:


Sec.  648.122  Season 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 18 through November 30. 
This time period may be adjusted pursuant to the procedures in Sec.  
648.120.

0
5. In Sec.  648.123, the first sentence of paragraph (a)(5) is revised 
to read as follows:


Sec.  648.123  Gear restrictions.

    (a) * * *
    (5) Stowage of nets. The owner or operator of an otter trawl vessel 
retaining 500 lb (226.8 kg) or more of scup from November 1 through 
April 30, or 200 lb (90.7 kg) or more of scup from May 1 through 
October 31, and subject to the minimum mesh requirements in paragraph 
(a)(1) of this section, and the owner or operator of a midwater trawl 
or other trawl vessel subject to the minimum size requirement in Sec.  
648.122, may not have available for immediate use any net, or any piece 
of net, not meeting the minimum mesh size requirement, or mesh that is 
rigged in a manner that is inconsistent with the minimum mesh size. * * 
*
* * * * *

0
6. 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 possess 
black sea bass from January 1 through December 31, unless this time 
period is adjusted pursuant to the procedures in Sec.  648.140.
[FR Doc. 05-11837 Filed 6-15-05; 8:45 am]
BILLING CODE 3510-22-S