[Federal Register Volume 71, Number 98 (Monday, May 22, 2006)]
[Rules and Regulations]
[Pages 29254-29256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4739]



[[Page 29254]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 060317073-6125-02; I.D. 031406A]
RIN 0648-AT28


Fisheries of the Northeastern United States; Recreational 
Management Measures for the Summer Flounder, Scup, and Black Sea Bass 
Fisheries; Fishing Year 2006

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 2006 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 June 21, 2006, except for the amendment to Sec.  
648.107(a) introductory text, which is effective May 22, 2006.

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 Street, Dover, DE 19901-6790. The EA/RIR/
IRFA is also accessible via the Internet at http://www.nero.noaa.gov. 
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.

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 2006 coastwide recreational harvest limits are 9,293,695 lb 
(4,216 mt) for summer flounder, 4,153,168 lb (1,884 mt) for scup, and 
3,988,732 lb (1,809 mt) for black sea bass. The 2006 quota 
specifications, inclusive of the recreational harvest limits, were 
determined to be consistent with the 2006 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 2006 summer flounder, scup, and black sea bass fisheries was 
published on March 27, 2006 (71 FR 15147), 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. For black sea bass, total length 
measurement does not include the caudal fin tendril. 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 2006 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 and 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 - 2006 State Recreational Management Measures for Summer Flounder
----------------------------------------------------------------------------------------------------------------
                                                           Possession
            State                  Minimum Fish Size         Limit                   Fishing Season
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              MA                   17.5 inches (44.5 cm)       7 fish              January 1 through December 31
              RI                   17.5 inches (44.5 cm)       7 fish                April 1 through December 31
              CT                     18 inches (45.7 cm)       6 fish               April 30 through December 31
              NY                     18 inches (45.7 cm)       4 fish                 May 6 through September 12
              NJ                   16.5 inches (41.9 cm)       8 fish                    May 6 through October 9
              DE                     17 inches (43.2 cm)       4 fish              January 1 through December 31
             MD*                   15.5 inches (39.4 cm)       4 fish              January 1 through December 31
              VA                   16.5 inches (41.9 cm)       6 fish              January 1 through December 31
              NC                     14 inches (35.6 cm)       8 fish              January 1 through December 31
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* 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.


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    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.

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

    As in the past 4 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 2006.

Comments and Responses

    One comment letter was received regarding the proposed recreational 
management measures (71 FR 15147, March 27, 2006).
    Comment 1: The commenter expressed concern about the impact of 
commercial fishing on the summer flounder, scup, and black sea bass 
total stocks and supports reduction of the total allowable landings for 
these species by 50 percent in 2006, and by an additional 10 percent 
each subsequent year.
    Response: This final 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 total allowable landings and quota allocation are 
important, this rule is not the proper mechanism to address these 
general issues.

Classification

    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effective date for the summer flounder recreational management 
measures contained in this rule (Sec.  648.107(a)). 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 May 3, 2006. The recreational summer flounder fishery has 
commenced in all states. The party and charter vessels 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 (with the exception 
of NY) 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 less restrictive measures.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Included in this final rule is the FRFA prepared pursuant to 5 
U.S.C. 604(a). The FRFA incorporates the economic impacts described in 
the IRFA, a summary of the significant issues raised by the public 
comments in response to the IRFA, and NMFS's responses to those 
comments, and a summary of the analyses completed to support the 
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 one comment letter 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 803 vessels possessing a Federal charter/party permit for summer 
flounder, scup, and/or black sea bass in 2004, the most recent year for 
which complete permit data are available. However, only 327 of these 
vessels reported active participation in the recreational summer 
flounder, scup, and/or black sea bass fisheries in 2004.

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'

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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 2005 fishing season. For 
summer flounder, although the status quo measures would be expected to 
constrain landings to the 2006 target, state-specific implications of 
the no-action (coastwide) alternative would be varied, with the 
coastwide measures being more restrictive than the conservation 
equivalent measures for some states and less restrictive for others. 
Conservation equivalency allows each state to tailor specific 
recreational fishing measures to the needs of that state, while still 
achieving conservation goals. The implications of the no-action 
alternative are not substantial for scup and black sea bass. Landings 
of these species in 2005 were less than their respective targets, and 
the status quo measures are expected to constrain landings to the 2006 
targets. The no-action measures were analyzed in Summer Flounder 
Alternative 2, Scup Alternative 1, and Black Sea Bass Alternative 1.
    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, 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 2006 in each state by the estimated average access fee paid by 
party/charter anglers in the Northeast Region in 2005. Predicted 
average losses for NY were presented as an example, and ranged from 
$1,582 per vessel under the combined effects of Summer Flounder 
Alternative 2, Scup Alternative 3, and Black Sea Bass Alternative 2, to 
$6,924 per vessel under the combined effects of the summer flounder 
precautionary default (considered in Summer Flounder Alternative 1), 
Scup Alternative 2, and Black Sea Bass Alternative 3 (assuming a 25-
percent reduction in effort for affected trips).

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 letter to permit holders that also serves as 
the small entity compliance guide (the guide) was prepared and 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 the guide are available from NMFS (see 
ADDRESSES) and at the following Web site: http://www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 17, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, 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 Massachusetts through 
North Carolina for 2006 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.
* * * * *
[FR Doc. 06-4739 Filed 5-19-06; 8:45 am]
BILLING CODE 3510-22-S