[Federal Register Volume 71, Number 143 (Wednesday, July 26, 2006)]
[Rules and Regulations]
[Pages 42315-42318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11942]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 060503118-6169-02; 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: Final rule.

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SUMMARY: NMFS issues this final rule to implement measures contained in 
Framework Adjustment 6 (Framework 6) to the Summer Flounder, Scup, and 
Black Sea Bass Fishery Management Plan (FMP) that will allow regional 
conservation equivalency in the summer

[[Page 42316]]

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. In addition, 
this final rule includes three administrative modifications to the 
existing regulations for clarification purposes.

DATES: This rule is effective August 25, 2006.

ADDRESSES: Copies of Framework 6, which includes 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. 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.

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 unit for summer flounder 
(Paralichthys dentatus), specified in the FMP, is defined as U.S. 
waters of the Atlantic Ocean from the southern border of North Carolina 
northward to the U.S./Canada border.
    The proposed rule for Framework 6 was published on May 15, 2006 (71 
FR 27981). A complete discussion of the development of Framework 6, 
including explanation of the conservation equivalency recommendation 
process, appeared in the preamble of the proposed rule and is not 
repeated here.
    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.
    Framework 6 allows 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 could 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.
    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 Exclusive 
Economic Zone (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 (including the 
same procedures and timelines) as for state-specific conservation 
equivalency measures, as specified in Framework 2 to the FMP (Framework 
2), which established summer flounder conservation equivalency.
    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. Assuming that a 
state or region makes its plans for the current calendar year at the 
beginning of the calendar 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 its 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 its voluntary regional 
agreement or decides to dissolve the voluntary multi-state region and 
resume state-specific conservation equivalency during the year 
following the year for which the region was formed. 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 its 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 its 
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.
    This final rule expands 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 continue to apply, i.e., 
references to ``state'' are not modified, since individual states are 
ultimately

[[Page 42317]]

responsible for implementation of the conservation equivalent 
regulations (including those approved for a multi-state region).

Need for Clarification/Correction

    This final rule also makes three administrative changes to the 
summer flounder regulations, as set out in the proposed rule (71 FR 
27981, May 15, 2006), to: (1) 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; (2) correct the reference to 
net stowage requirements at Sec.  648.104(b)(1) to read ``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); and (3) modify the wording of the 
regulatory text at Sec.  648.107(b) for clarification purposes.

Comments and Responses

    One comment letter was received regarding the proposed rule (71 FR 
27981, May 15, 2006), but it did not include comment on management of 
the recreational summer flounder fishery.
    Comment: The commenter expressed concern about the impact of 
commercial fishing on fish stocks in general, and supports reduction of 
all quotas by 50 percent in 2006, and by an additional 10 percent each 
subsequent year.
    Response: While NMFS acknowledges that consideration of total 
allowable landings and quota allocation are important, these general 
issues are outside the scope of this rulemaking.

Classification

    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 
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 
comment. 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

    In 2004, the most recent year for which complete permit data are 
available, 803 vessels possessed a Federal charter/party permit for 
summer flounder, scup, and/or black sea bass. Of these, 739 vessels 
held a permit to participate in the recreational fishery for summer 
flounder only, or in combination with scup and black sea bass. However, 
only 284 of these vessels landed summer flounder 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

    This 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.

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.'' However, this rule does not make any changes that necessitate 
vessel compliance. This action allows for expansion of the existing 
conservation equivalency management option to a regional scope. Because 
the conservation equivalency regulations at Sec.  648.107 would 
continue to apply, i.e., references to ``state'' would not be modified, 
and because the additional modifications to the summer flounder 
regulations are minor and administrative, there is no need for a small 
entity compliance guide. NMFS has updated the text for future summer 
flounder small-mesh exemption letters to reflect that other 
restrictions in part 648 may limit the area in which the exemption 
letter may be used. In addition, copies of this final rule 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 20, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons stated 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: Authority: 16 U.S.C. 1801 et seq.

0
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

[[Page 42318]]

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.
* * * * *

0
3. In Sec.  648.104, paragraphs (b) introductory text and (b)(1) 
introductory text 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 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.
* * * * *

0
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. E6-11942 Filed 7-25-06; 8:45 am]
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