[Federal Register Volume 71, Number 93 (Monday, May 15, 2006)]
[Proposed Rules]
[Pages 27981-27984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7357]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 060503118-6118-01; I.D. 042606E]
RIN 0648-AT26


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; Framework Adjustment 6

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes measures contained in Framework Adjustment 6 
(Framework 6) to the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan (FMP) that would allow regional conservation 
equivalency in the summer flounder recreational fishery. The intent is 
to provide flexibility and efficiency to the management of the summer 
flounder recreational fishery, specifically by expanding the suite of 
management tools available when conservation equivalency is 
implemented.

DATES: Comments must be received on or before May 30, 2006.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: [email protected]. Include in the subject line the 
following identifier: ``Comments on Summer Flounder Framework 6.''
     Federal e-rulemaking portal: http://www.regulations.gov.
     Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. 
Mark the outside of the envelope: ``Comments on Summer Flounder 
Framework 6.''
     Fax: (978) 281-9135.
    Copies 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 New Street, 
Dover, DE 19901-6790. The EA/RIR/IRFA is also accessible via the 
Internet at http://www.nero.noaa.gov.

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

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 management units specified in the FMP include summer flounder 
(Paralichthys dentatus) in U.S. waters of the Atlantic Ocean from the 
southern border of North Carolina northward to the U.S./Canada border, 
and scup (Stenotomus chrysops) and black sea bass (Centropristis 
striata) in U.S. waters of the Atlantic Ocean from 35[deg]15.3' N. lat. 
(the latitude of Cape Hatteras Lighthouse, Buxton, NC) northward to the 
U.S./Canada border.
    The 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 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 Council and the Commission seek to expand the suite of 
management tools available for management of the summer flounder 
recreational fishery when conservation equivalency is recommended by 
the Council. The Council initiated Framework 6, pursuant to Sec.  
648.108, in order to address issues related to the administration of 
the summer flounder recreational fishery, while continuing to achieve 
the management objectives of the FMP. Framework 6 complements Addendum 
XVII to the Interstate Summer Flounder, Scup, and Black Sea Bass FMP.
    In 2001, NMFS implemented Framework Adjustment 2 to the FMP 
(Framework 2), which established a process that makes conservation 
equivalency an option for the summer flounder recreational fishery (66 
FR 36208, July 11, 2001). Conservation equivalency allows each state to 
establish its own recreational management measures (possession limits, 
minimum fish size, and fishing seasons) to achieve its state harvest 
limit, 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 overall recreational 
harvest limit. Conservation equivalency has been approved for the 
summer flounder recreational fishery each year since 2002.
    During the development of Framework 2, the Council considered but 
did not approve an alternative that would divide the recreational 
harvest limit into three subregions: Northern (MA, RI, CT), Central 
(NY, NJ, DE), and Southern (MD, Potomac River Fisheries Commission, VA, 
and NC). Development of Framework 6 was necessary to allow for 
modification of the state-specific conservation equivalency procedures 
as established in Framework 2. Framework 6 would allow for the 
voluntary formation of multi-state regions by two or more adjacent 
states for the purpose of setting regional, conservation-equivalent 
recreational summer flounder fishing measures. Using guidelines 
approved by both the Council and the Commission, multi-state 
conservation equivalency regions would develop fishing measures (i.e., 
minimum fish size, possession limits, and fishing seasons) intended to 
maximize landings in the region, without resulting in overages of the 
regional targets (in number of fish). All states forming a region would 
be required to implement identical recreational fishery regulations.
    Currently, the Council and Board recommend annually that either 
state-

[[Page 27982]]

specific recreational measures be developed (conservation equivalency) 
or coastwide management measures be implemented by all states to ensure 
that the recreational harvest limit will not be exceeded. The 
Commission's conservation equivalency guidelines require the states to 
determine and implement appropriate state-specific management measures 
to achieve state-specific harvest limits. Under this approach, each 
state may implement unique management measures appropriate to that 
state, so long as these measures are determined by the Commission to 
provide equivalent conservation as would Federal coastwide measures 
developed to achieve the overall recreational harvest limit.
    For each fishing year, if the Council recommends conservation 
equivalency, the Board requires that each state submit its conservation 
equivalency proposal to the Commission by January 15. The Commission's 
Summer Flounder Technical Committee then evaluates the proposals and 
advises the Board of each proposal's consistency with respect to 
achieving the coastwide recreational harvest limit. The Commission 
invites public participation in its review process by allowing public 
comment on the state proposals at the Technical Committee meeting and 
Board meeting. The Board meets in February to approve or disapprove the 
state management proposals. Once the states select and submit their 
final summer flounder management measures to the Commission, the 
Commission officially notifies NMFS as to which state proposals have 
been approved or disapproved. NMFS retains the final authority to 
either approve or disapprove using conservation equivalency in place of 
the coastwide measures and publishes its determination in the final 
rule establishing the annual recreational measures for these fisheries.
    If conservation equivalency is recommended, and following 
confirmation that the proposed state measures would achieve 
conservation equivalency, NMFS may waive the permit condition found at 
Sec.  648.4(b), which requires federally permitted vessels to comply 
with the more restrictive management measures when state and Federal 
measures differ. Federally permitted charter/party permit holders and 
recreational vessels fishing for summer flounder in the EEZ then would 
be subject to the recreational fishing measures implemented by the 
state in which they land summer flounder, rather than the coastwide 
measures. In addition, the Council and the Board must recommend 
precautionary default measures. The precautionary default measures 
would be assigned to any state that either does not submit a summer 
flounder management proposal to the Commission's Summer Flounder 
Technical Committee, or that submits measures that are determined not 
to achieve the required reduction. The precautionary default measures 
are defined as the set of measures that would achieve the greatest 
reduction in landings required for any state.
    Under Framework 6, multi-state conservation equivalency measures 
for each region would be developed in the same manner as state-specific 
conservation equivalency measures, as specified in Framework 2. The 
procedures and timeline associated with development of summer flounder 
recreational management measures as determined in Framework 2 would 
also apply to multi-state conservation equivalency, i.e., with regard 
to distribution of multi-state conservation equivalency guidelines by 
the Commission to each state, distribution of multi-state conservation 
equivalency proposals to the Commission's Summer Flounder Technical 
Committee, evaluation of conservation equivalency proposals, and 
approval or disapproval of the proposals.
    The recreational harvest limit for a multi-state region would be 
the sum of the harvest limits for all of the states volunteering to 
form that region. The Summer Flounder Technical Committee would develop 
region-specific tables as necessary for use by a multi-state region in 
determining recreational management measures expected to constrain 
recreational landings to the regional harvest limit. For the purpose of 
explanation, it should be assumed that a state or region makes its 
plans for the current calendar year at the beginning of the calendar 
year. To determine the multi-state conservation equivalency measures 
for a current year, the prior year's recreational landings would be 
pooled among the inclusive states and then compared to the current 
year's region-specific recreational harvest limit to determine if any 
reduction in landings would be required of that region. Each multi-
state region would then craft their regulations under the same 
guidelines used to develop state-specific conservation equivalency 
measures and under the same timeline identified in Framework 2.
    There are two possible scenarios for how states could proceed based 
on whether a region decides to maintain their voluntary regional 
agreement or decides to dissolve the voluntary multi-state region and 
resume state-specific conservation equivalency. First, in the event 
that a multi-state region maintains its voluntary conservation 
equivalency agreement, the region would again compare its regional 
recreational landings for the prior year to the current year's region-
specific recreational harvest limit to determine if any necessary 
reductions in landings would be required of that region. The region 
would then adjust their regulations such that the region-specific 
harvest limit would be achieved. Second, in the event the region 
dissolves its agreement and opts for state-specific conservation 
equivalency, state-specific harvest limits would apply and individual 
states would compare their state-specific landings for the prior year 
to the state-specific harvest limits in the current year. Each state 
would then adjust their regulations such that the state-specific 
harvest limits would be achieved. As established for individual states 
in Framework 2, a multi-state region that does not exceed its regional 
harvest limit in a given year may be allowed to set less restrictive 
management measures for the following year, if the following year's 
regional harvest limit is greater than the current year's regional 
landings.
    NMFS proposes to expand the scope of the regulations at Sec.  
648.100(e) to allow states and/or multi-state regions to implement 
conservation equivalent recreational fishing measures. The conservation 
equivalency regulations at Sec.  648.107 would continue to apply, i.e., 
references to ``state'' would not be modified, since individual states 
are ultimately responsible for implementation of the conservation 
equivalent regulations (including those approved for a multi-state 
region).

Need for Clarification/Correction

    NMFS has identified the need to clarify and to correct the 
regulations regarding summer flounder commercial gear restrictions. 
This proposed rule would clarify (at Sec.  648.104(b)) that, although 
the minimum mesh size requirements specified for otter trawls would not 
apply for a vessel issued a summer flounder small-mesh exemption 
letter, other restrictions in part 648 may limit the area in which the 
exemption letter may be used. This proposed rule would correct the 
reference to net stowage requirements at Sec.  648.104(b)(1) to be 
Sec.  648.104(e) rather than Sec.  648.100(e) as it was inadvertently 
published in a final rule that consolidated regulations governing 
multiple marine fisheries of the Northeast region into one new CFR part 
(61 FR 34966, July 3, 1996).

[[Page 27983]]

    In addition, NMFS proposes a non-substantive modification to the 
regulatory text at Sec.  648.107(b) for clarification purposes.

Classification

    NMFS has determined that the proposed rule is consistent with the 
FMP and preliminarily determined that the rule is consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this section of the preamble 
and in the SUMMARY section of the preamble. A summary of the analysis 
follows. A copy of this analysis is available from the Council (see 
ADDRESSES).
    This proposed rule does not duplicate, overlap, or conflict with 
other Federal rules.
    The proposed action could affect any recreational angler who fishes 
for summer flounder in the EEZ or on a party/charter vessel issued a 
Federal permit for summer flounder. However, the IRFA focuses upon the 
impacts on party/charter vessels issued a Federal summer flounder 
permit because these vessels are considered small business entities for 
the purposes of the RFA, i.e., businesses with receipts (gross 
revenues) of up to $6.5 million. These small entities can be 
specifically identified in the Federal vessel permit database and would 
be impacted by the recreational measures, regardless of whether they 
fish in Federal or state waters.
    Data from the Northeast permit application database indicates that 
in 2004 there were 803 party/charter vessels permitted to take part in 
the summer flounder, scup, and/or black sea bass recreational fisheries 
in the EEZ. Of those 803 party/charter vessels, 56 held a summer 
flounder permit alone, and 683 held a summer flounder permit in 
combination with a scup permit, black sea bass permit, or both. 
However, only 284 of these vessels reported active participation in the 
recreational summer flounder fishery in 2004. Although individual 
recreational anglers may be impacted, they are not considered small 
entities under the RFA. Also, there is no permit requirement to 
participate in these fisheries; thus, it would be difficult to quantify 
any impacts on recreational anglers in general.
    In the EA/RIR/IRFA, the no-action alternative (i.e., maintenance of 
the regulations as codified) is defined as continuance of the state-
specific conservation equivalency procedures as established in 
Framework 2. The implications of the no-action alternative are not 
substantial. State-specific summer flounder conservation equivalency, 
which was designed to constrain landings to the annual recreational 
harvest limit while allowing states the flexibility of determining 
their own recreational management measures, has been recommended by the 
Council and approved by NMFS each year since 2002.
    The proposed action is not expected to result in negative impacts 
to a significant number of small entities participating in the 
recreational summer flounder fishery, relative to the status quo. The 
coastwide recreational harvest limit for summer flounder would not be 
altered. Multi-state conservation equivalency regions will develop 
fishing measures that maximize the harvest of the region-specific 
limit, without resulting in overages. This is similar to what is 
currently done on a state-specific basis when conservation equivalency 
is implemented, but on a larger scale. It is expected that the 
conservation equivalent recreational management measures would allow 
each state or multi-state region to develop specific summer flounder 
recreational measures that allow the fishery to operate during critical 
fishing periods, while still achieving conservation goals and 
mitigating potential adverse economic effects in specific states.
    There are no new reporting or recordkeeping requirements contained 
in any of the alternatives considered for this action.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 09, 2006.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
    For the reasons stated 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. In Sec.  648.100, paragraphs (e)(2) introductory text, 
(e)(2)(i), and (e)(2)(ii) are revised to read as follows:


Sec.  648.100  Catch quotas and other restrictions.

* * * * *
    (e) * * *
    (2) Conservation equivalent measures. Individual states or regions 
formed voluntarily by adjacent states (i.e., multi-state conservation 
equivalency regions) may implement different combinations of minimum 
fish sizes, possession limits, and closed seasons that achieve 
equivalent conservation as the coastwide measures established under 
paragraph (e)(1) of this section. Each state or multi-state 
conservation equivalency region may implement measures by mode or area 
only if the proportional standard error of Marine Recreational 
Fisheries Statistics Survey (MRFSS) landings estimates by mode or area 
for that state are less than 30 percent.
    (i) After review of the recommendations, the Regional Administrator 
will publish a proposed rule in the Federal Register on or about March 
1 to implement the overall percent adjustment in recreational landings 
required for the fishing year, the Council and Commission's 
recommendation concerning conservation equivalency, the precautionary 
default measures, and coastwide measures.
    (ii) During the public comment period on the proposed rule, the 
Commission will review conservation equivalency proposals and determine 
whether or not they achieve the necessary adjustment to recreational 
landings. The Commission will provide the Regional Administrator with 
the individual state and/or multi-state region conservation measures 
for the approved state and/or multi-state region proposals, and in the 
case of disapproved state and/or multi-state region proposals, the 
precautionary default measures.
* * * * *
    3. In Sec.  648.104, paragraphs (b) introductory text and (b)(1) 
are revised to read as follows:


Sec.  648.104  Gear restrictions.

* * * * *
    (b) Exemptions. Unless otherwise restricted by this part, the 
minimum mesh-size requirements specified in

[[Page 27984]]

paragraph (a)(1) of this section do not apply to:
    (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). Vessels fishing under 
the LOA shall not fish west of the line. Vessels issued a permit under 
Sec.  648.4(a)(3)(iii) may transit the area west or south of the line, 
if the vessel's fishing gear is stowed in a manner prescribed under 
Sec.  648.104(e), so that it is not ``available for immediate use'' 
outside the exempted area. The Regional Administrator may terminate 
this exemption if he/she determines, after a review of sea sampling 
data, that vessels fishing under the exemption are discarding more than 
10 percent, by weight, of their entire catch of summer flounder per 
trip. If the Regional Administrator makes such a determination, he/she 
shall publish notification in the Federal Register terminating the 
exemption for the remainder of the exemption season.
* * * * *
    4. In Sec.  648.107, paragraph (b) is revised to read as follows:


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

* * * * *
    (b) Federally permitted vessels subject to the recreational fishing 
measures of this part, and other recreational fishing vessels subject 
to the recreational fishing measures of this part and registered in 
states whose fishery management measures are not determined by the 
Regional Administrator to be the conservation equivalent of the season, 
minimum size and possession limit prescribed in Sec. Sec.  648.102, 
648.103(b) and 648.105(a), respectively, due to the lack of, or the 
reversal of, a conservation equivalent recommendation from the Summer 
Flounder Board of the Atlantic States Marine Fisheries Commission, 
shall be subject to the following precautionary default measures: 
Season - January 1 through December 31; minimum size - 18 inches (45.7 
cm); and possession limit - one fish.

[FR Doc. E6-7357 Filed 5-12-06; 8:45 am]
BILLING CODE 3510-22-S