[Federal Register Volume 74, Number 61 (Wednesday, April 1, 2009)]
[Proposed Rules]
[Pages 14760-14766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7323]



[[Page 14760]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 090211163-9167-01]
RIN 0648-AX69


Fisheries of the Northeastern United States; Recreational 
Management Measures for the Summer Flounder, Scup, and Black Sea Bass 
Fisheries; Fishing Year 2009

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes management measures for the 2009 summer 
flounder, scup, and black sea bass recreational fisheries. The 
implementing regulations for these fisheries require NMFS to publish 
recreational measures for the fishing year and to provide an 
opportunity for public comment. The intent of these measures is to 
prevent overfishing of the summer flounder, scup, and black sea bass 
resources.

DATES: Comments must be received by 5 p.m. local time, on May 1, 2009.

ADDRESSES: You may submit comments, identified by RIN 0648-AX69, by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
     Mail and hand delivery: Patricia A. Kurkul, Regional 
Administrator, NMFS, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope: 
``Comments on 2009 Summer Flounder, Scup, and Black Sea Bass 
Recreational Measures.''
     Fax: (978) 281-9135. Send the fax to the attention of the 
Sustainable Fisheries Division. Include ``Comments on 2009 Summer 
Flounder, Scup, and Black Sea Bass Recreational Measures'' prominently 
on the fax.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    Copies of the recreational management measures document, including 
the Environmental Assessment, Regulatory Impact Review, and Initial 
Regulatory Flexibility Analysis (EA/RIR/IRFA) and other supporting 
documents for the recreational management measures are available from 
Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management 
Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 
19901-6790. These documents are also accessible via the Internet at 
http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy 
Analyst, (978) 281-9104.

SUPPLEMENTARY INFORMATION:

Background

    The summer flounder, scup, and black sea bass fisheries are managed 
cooperatively under the provisions of the Summer Flounder, Scup, and 
Black Sea Bass Fishery Management Plan (FMP) developed by the Mid-
Atlantic Fishery Management Council (Council) and the Atlantic States 
Marine Fisheries Commission (Commission), 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 (NC) 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]13.3' N. lat. (the 
latitude of Cape Hatteras Lighthouse, Buxton, NC) northward to the 
U.S./Canada border.
    The Council prepared the FMP under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 
16 U.S.C. 1801 et seq. Regulations implementing the FMP appear at 50 
CFR part 648, subparts A (general provisions), G (summer flounder), H 
(scup), and I (black sea bass). General regulations governing U.S. 
fisheries also appear at 50 CFR part 600. States manage summer flounder 
within 3 nautical 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 exclusive economic zone (EEZ), as well as 
vessels possessing a Federal fisheries permit, regardless of where they 
fish.
    The FMP established Monitoring Committees (Committees) for the 
three fisheries, consisting of representatives from the Commission, the 
Mid-Atlantic Council, state marine fishery agency representatives from 
MA to NC, and NMFS. The FMP and its implementing regulations require 
the Committees to review scientific and other relevant information 
annually and to recommend management measures necessary to achieve the 
recreational harvest limits established for the summer flounder, scup, 
and black sea bass fisheries for the upcoming fishing year. The FMP 
limits these measures to minimum fish size, possession limit, and 
fishing season.
    The Council's Demersal Species Committee and the Commission's 
Summer Flounder, Scup, and Black Sea Bass Management Board (Board) then 
consider the Committees' recommendations and any public comment in 
making their recommendations to the Council and the Commission, 
respectively. The Council then reviews the recommendations of the 
Demersal Species Committee, makes its own recommendations, and forwards 
them to NMFS for review. The Commission similarly adopts 
recommendations for the states. NMFS is required to review the 
Council's recommendations to ensure that they are consistent with the 
targets specified for each species in the FMP.
    Quota specifications for the 2009 summer flounder, scup, and black 
sea bass fisheries were published on January 2, 2009 (74 FR 29). Based 
on these specifications, the 2009 coastwide recreational harvest limits 
are 7,158,600 lb (3,247 mt) for summer flounder, 2,585,952 lb (1,173 
mt) for scup, and 1,137,810 lb (516 mt) for black sea bass. The 
specification rules did not establish recreational measures, since 
final recreational catch data for 2008 were not available when the 
Council made its recreational harvest limit recommendation to NMFS.
    All minimum fish sizes discussed hereafter 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.

Summer Flounder

    Recreational landings for 2008 were estimated to have been 8.14 
million lb (3,692 mt). This exceeded, by approximately 31 percent, the 
2008 recreational harvest limit of 6.22 million lb (2,821 mt). All 
states except DE, VA, and NC are projected to have exceeded their state 
harvest limits established

[[Page 14761]]

under the conservation equivalency system utilized to manage the 2008 
recreational summer flounder fishery. The magnitude of the overages 
ranged from a low of 9 percent for NJ to a high of 105 percent for MD.
    The 2009 coastwide harvest limit is 7.16 million lb (3,247 mt), a 
15.1-percent increase from the 2008 harvest limit of 6.22 million lb 
(2,821 mt). However, given the magnitude of the 2008 overages, landings 
must be reduced by 12 percent coastwide from the 2008 levels to ensure 
that the 2009 harvest limit is not exceeded. The Council is 
recommending conservation equivalency, described as follows, that would 
require individual states to reduce summer flounder landings (measured 
in number of fish) to achieve the necessary recreational harvest 
reductions for 2009.
    NMFS implemented Framework Adjustment 2 to the FMP (Framework 
Adjustment 2) on July 29, 2001 (66 FR 36208), which established a 
process that makes conservation equivalency an option for the summer 
flounder recreational fishery. 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, if implemented by all of the states.
    The Council and Board recommend annually that either state-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. Even when the 
Council and Board recommend conservation equivalency, the Council must 
specify a set of coastwide measures that would apply if conservation 
equivalency is not approved.
    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. In such a situation, federally permitted charter/party 
permit holders and recreational vessels fishing for summer flounder in 
the EEZ would then 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 Commission would require adoption of the 
precautionary default measures by any state that either does not submit 
a summer flounder management proposal to the Commission's Summer 
Flounder Technical Committee (Technical Committee), or that submits 
measures that are determined not to achieve the required level of 
reduction for that state. The precautionary default measures are 
defined as the set of measures that would achieve at least the highest 
percent reduction for any state on a coastwide basis.
    In December 2008, the Council and Board voted to recommend 
conservation equivalency to achieve the 2009 recreational harvest 
limit. The Commission's conservation equivalency guidelines require the 
states to determine and implement appropriate state-specific management 
measures (i.e., possession limits, fish size limits, and fishing 
seasons) to achieve state-specific harvest limits. States may also form 
voluntary regions wherein the member states' measures must achieve the 
overall reduction required for the region in question.
    For 2009, the Commission is requiring that states that must reduce 
landings to ensure that at least 50 percent of the percent reduction 
derive from a modification to the fishing season. The Monitoring 
Committee and the Technical Committee have both stated that 
modification of season length is typically more effective at reducing 
landings than are modifications to minimum fish size and possession 
limits. The Commission is not requiring the use of any other 
adjustments or reductions similar to the performance-based adjustment 
factor that was utilized in 2008.
    According to the conservation equivalency procedures established in 
Framework Adjustment 2, each state except DE, VA, and NC would be 
required to reduce 2009 landings by the percentages shown in Table 1. 
DE, VA, and NC may submit more liberal management measures, provided 
that they are sufficient to ensure their 2009 state harvest limits are 
not exceeded. ME and NH have no recreational summer flounder harvest 
limit and are not required to submit management measures to the 
Commission.
    Under conservation equivalency, state-specific landings from 1998 
are used as the baseline for individual state's reductions, because 
1998 was the last year that recreational summer regulations were 
consistent along the coast. Recreational landings in 1998 were 6.978 
million fish coastwide; the 2009 recreational harvest limit translates 
into 2.069 million fish (i.e., 7.16 million lb (3,247 mt) recreational 
harvest limit divided by predicted 2009 average fish weight of 3.46 lb/
fish (1.57 kg/fish)). As such, landings must be reduced by 70.4 percent 
in 2009 to achieve the 1998 baseline level of landings.

  Table 1. 2009 Conservation Equivalency State-Specific Harvest Targets
     (thousands of fish): 1998 Baseline; 2009 Target, 2008 Projected
                    Landings, and Percent Reductions.
------------------------------------------------------------------------
                                  1998                 2008
                                Baseline    2009    Projected   Required
             State               Target    Target    Landings   Percent
                                 (X '000   (X '000   (X '000   Reduction
                                  fish)   fish)\A\    fish)     for 2009
------------------------------------------------------------------------
MA                                  383      114       150        24
RI                                  395      117       200        42
CT                                  261       77       118        35
NY                                1,230      365       600        39
NJ                                2,728      809       870         7
DE                                  219       65        33         0
MD                                  206       61       125        51
VA                                1,165      345       231         0
NC                                  391      116        54         0
------------------------------------------------------------------------
\A\ Based on a 70.4-percent reduction in 1998 landings and an estimated
  2009 mean fish weight of 3.46 lb (1.57 kg)

    The Board required that each state submit its conservation 
equivalency proposals to the Commission by late January 2009. The 
Technical Committee then evaluated the proposals and advised the Board 
of each proposal's consistency with respect to achieving the coastwide 
recreational harvest limit. The Commission invited public participation 
in its review process by allowing public comment on the state proposals 
at the Technical Committee meeting held on January 28, 2009. The Board 
met on February 3, 2009, and approved a range of management proposals 
for each state designed to attain conservation equivalency. Once the 
states select and submit their final summer flounder management 
measures to the Commission, the Commission will notify NMFS as to which 
individual state proposals have been approved or disapproved. NMFS 
retains the final authority either to approve or to disapprove using 
conservation equivalency in place of the coastwide measures and will 
publish its

[[Page 14762]]

determination as a final rule in the Federal Register to establish the 
2009 recreational measures for these fisheries.
    States that do not submit conservation equivalency proposals, or 
whose proposals are disapproved by the Commission, will be required by 
the Commission to adopt the precautionary default measures. In the case 
of states that are initially assigned precautionary default measures, 
but subsequently receive Commission approval of revised state measures, 
NMFS will publish a notice in the Federal Register announcing a waiver 
of the permit condition at Sec.  648.4(b). The suite of state proposals 
for 2009 has initially been approved by the Commission. Therefore, a 
state would only be required to implement precautionary default 
measures if the measures submitted for final Commission approval are 
different than those preliminarily approved by the Commission or for 
failing to finalize conservation equivalent measures for 2009.
    The precautionary default measures recommended by the Council and 
Board during their joint December 2008 meeting are for a 21.5-inch 
(54.61-cm) minimum fish size, a possession limit of one fish, and an 
open season of July 4 through September 7, 2009.
    As described above, for each fishing year, NMFS implements either 
coastwide measures or conservation equivalent measures at the final 
rule stage. The coastwide measures recommended by the Council and Board 
for 2009 are a 20-inch (50.80-cm) minimum fish size, a possession limit 
of two fish, and an open season from May 1 to September 30, 2009.
    In this action, NMFS proposes to implement conservation equivalency 
with a precautionary default backstop, as previously outlined, for 
states that either fail to submit conservation equivalent measures or 
whose measures are disapproved by the Commission. NMFS proposes the 
non-preferred alternative of coastwide measures, as previously 
described, for use if conservation equivalency is not approved in the 
final rule. The coastwide measures would be waived if conservation 
equivalency is approved in the final rule.

Scup

    The 2009 scup recreational harvest limit is 2,585,952 lb (1,173 
mt), a 41-percent increase from the 2008 recreational harvest limit of 
1.83 million lb (830 mt). Recreational landings are estimated to have 
been 4.75 million lb (2,155 mt).
    Development of scup recreational management measures has been 
substantially complicated for 2009 following the results of a Northeast 
Fisheries Science Center (Center) Data Poor Stocks Working Group 
(DPSWG). The peer-reviewed results of the DPSWG has resulted in the 
adoption of revised scup biological reference points, a new stock 
assessment modeling approach, and a more favorable overall status of 
the stock than was previously available. In fact, the scup stock is now 
considered rebuilt, not overfished, and not subject to overfishing in 
2007, the year for which the most recent information was available 
during the DPSWG.
    The Council and Commission, at the time of their December 9-11, 
2008, meeting, did not have the final DPSWG results; these were not 
available until January 20, 2009. As such, the Council and Commission 
adopted recommendations for scup measures based on the proposed 2009 
scup TAL and recreational harvest limit as outlined in the October 28, 
2008, proposed rule (73 FR 63934) issued by NMFS. This was a TAL of 
7.34 million lb (3,329 mt) and a recreational harvest limit of 1.83 
million lb (830 mt). This would have required a 63-percent reduction in 
scup landings for 2009.
    The DPSWG peer-review was concluded December 12, 2008. The peer-
review panel recommended during the meeting proceedings that the new 
modeling approach, biological reference points, and revised stock 
status be accepted for management advice for scup, provided sufficient 
attention was paid to the many uncertainties remaining in the new 
assessment. On the strength of this recommendation, NMFS increased the 
scup TAL from the 7.34 million lb (3,329 mt) proposed in October, to an 
11.18-million-lb (4,170-mt) scup TAL in the final rule for the 2009 
specifications. This increased the recreational harvest limit from 1.83 
million lb (830 mt) to 2.59 million lb (1,173 mt). However, the Council 
was unable to revisit its recommendation, so the preferred measures 
proposed by the Council include a 12-inch (30.48-cm) minimum fish size, 
a January 1-February 28 and October 1-October 31, 2009, fishing season, 
and a 25-fish possession limit. The non-preferred alternatives offered 
by the Council were to retain status quo measures from 2008 or to close 
the Federal waters of the EEZ for 2009.
    On February 3, 2009, the Commission's Scup Management Board (Board) 
elected to maintain status quo scup management measures from 2008 for 
state waters in 2009. Under this system, the states from MA to NY, 
which typically account for 95 to 97 percent of state water scup 
harvest, would have similar measures: Different minimum fish sizes; 
possession limits; and fishing seasons for private vessels/shore based 
anglers and party/charter vessels. A minimum fish size of 10.5 inches 
(26.7 cm), a common possession limit (10 fish), and a May 24 through 
September 26 fishing season for private vessels and shore-based 
anglers; party and charter vessels could take scup for up to 126 days 
under two distinct seasons with separate minimum fish sizes, possession 
limits, and seasons. One charter/party season, designated as ``bonus 
fishery,'' has a minimum fish size of 11.0 inches (27.94 cm), a 45-fish 
possession limit, and is constrained to a 45-day period within May 15 
through October 15. The second party/charter season designation is the 
``non-bonus fishery,'' which carries an 11.0-inch (27.94-cm) minimum 
fish size, a 10-fish possession limit, and is 81 days in duration 
either prior to or following the dates of the open season. Due to low 
scup landings in NJ through NC, the Board approved the retention of 
status quo management measures for those states, i.e., a 10-inch 
(25.40-cm) minimum fish size, a 50-fish possession limit, and open 
seasons of January 1 through February 29 and September 18 through 
November 30.
    Very little of the scup recreational harvest comes from the Federal 
waters of the EEZ. The average total scup recreational harvest from 
Federal waters for the years 1998-2007 is slightly over 6 percent. In 
2007, the percentage was slightly over 2 percent. NMFS is proposing to 
implement the Council's non-preferred alternative of status quo for the 
2009 fishing year: A 10.5-inch (26.67-cm) minimum fish size; a 15-fish 
per person possession limit; and open seasons of January 1 through 
February 28, and October 1 through October 31, 2009. While these 
measures may result in a minor increase in 2009 scup recreational 
landings, the majority of landings will occur from state waters where 
NMFS has no jurisdiction. The state or Federal combined recreational 
landings are not likely to result in the scup stock being overfished or 
to result in overfishing.

Black Sea Bass

    Recreational landings in 2008 were estimated to have been 1.27 
million lb (576 mt)--40 percent below the 2008 target of 2.11 million 
lb (957 mt) but 10.5 percent above the 2009 target of 1.137 million lb 
(516 mt). The 2009 recreational harvest limit of 1.137 million lb (516 
mt) is a 46.1-percent

[[Page 14763]]

decrease from the 2008 target. Based on 2008 estimated landings, a 10-
percent reduction in coastwide landings is necessary to achieve the 
2009 target.
    For Federal waters, the Council and Board have recommended measures 
that would increase the 12.0-inch (30.48-cm) minimum fish size from 
2008 to 12.5 inches (31.75 cm) in 2009 and maintain the status quo 25-
fish possession limit and open season of January 1 through December 31, 
2009. NMFS proposes to implement the Council and Board recommended 
measures, which are expected to constrain recreational black sea bass 
landings to the 2009 target.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
Assistant Administrator has determined that this proposed rule is 
consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, 
other provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.
    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. A summary of the analysis follows. A copy of the 
complete IRFA 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, scup, or black sea bass in the EEZ or on a party/
charter vessel issued a Federal permit for summer flounder, scup, and/
or black sea bass. However, the IRFA focuses upon the impacts on party/
charter vessels issued a Federal permit for summer flounder, scup, and/
or black sea bass, because these vessels are considered small entities 
for the purposes of the RFA, i.e., businesses in the recreational 
fishery with 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. Although individual 
recreational anglers are likely to 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.
    The Council estimated that the proposed measures could affect any 
of the 962 vessels possessing a Federal charter/party permit for summer 
flounder, scup, and/or black sea bass in 2007, the most recent year for 
which complete permit data are available. However, only 342 of these 
vessels reported active participation in the recreational summer 
flounder, scup, and/or black sea bass fisheries in 2007.
    In the IRFA, the no-action alternative (i.e., maintenance of the 
regulations as codified) is defined as implementation of the following: 
(1) For summer flounder, coastwide measures of a 20-inch (50.8-cm) 
minimum fish size, a 2-fish possession limit, and a season from May 1 
through September 30, i.e., the Federal regulatory measure that would 
be implemented if conservation equivalency is not implemented in the 
final rule; (2) for scup, a 10.5-inch (26.67-cm) minimum fish size, a 
15-fish possession limit, and open seasons of January 1 through 
February 28, and October 1 through October 31; and (3) for black sea 
bass, a 12-inch (30.48-cm) minimum size, a 25-fish possession limit, 
and an open season of January 1 through December 31.
    The no-action alternative for scup is the same (status quo) set of 
measures being proposed for 2009. As such, since there is no regulatory 
change being proposed for scup, there is no further discussion of the 
economic impacts within this section.
    The impacts of the proposed action on small entities (i.e., 
federally permitted party/charter vessels in each state in the 
Northeast region) was analyzed, assessing potential changes in gross 
revenues for all 18 combinations of alternatives proposed. Although 
NMFS's RFA guidance recommends assessing changes in profitability as a 
result of proposed measures, the quantitative impacts were instead 
evaluated using changes in party/charter vessel revenues as a proxy for 
profitability. This is because reliable cost and revenue information is 
not available for charter/party vessels at this time. Without reliable 
cost and revenue data, profits cannot be discriminated from gross 
revenues. As reliable cost data become available, impacts to 
profitability can be more accurately forecast. Similarly, changes to 
long-term solvency were not assessed due both to the absence of cost 
data and because the recreational management measures change annually 
according to the specification-setting process. Effects of the various 
management measures were analyzed by employing quantitative approaches, 
to the extent possible. Where quantitative data were not available, 
qualitative analyses were utilized. Management measures proposed under 
the summer flounder conservation equivalency alternative (Summer 
Flounder Alternative 1) have yet to be adopted; therefore, potential 
losses under this alternative could not be analyzed in conjunction with 
various alternatives proposed for scup and black sea bass. Since 
conservation equivalency allows each state to tailor specific 
recreational fishing measures to the needs of that state, while still 
achieving conservation goals, it is likely that the measures developed 
under this alternative, when considered in combination with the 
measures proposed for scup and black sea bass, would have fewer overall 
adverse effects than any of the other combinations that were analyzed.
    Impacts for other combinations of alternatives were examined by 
first estimating the number of angler trips aboard party/charter 
vessels in each state in 2008 that would have been affected by the 
proposed 2009 management measures. All 2008 party/charter fishing trips 
that would have been constrained by the proposed 2009 measures in each 
state were considered to be affected trips. MRFSS data indicate that 
anglers took 37.49 million fishing trips in 2008 in the Northeastern 
U.S., and that party/charter anglers accounted for 5 percent of the 
angler fishing trips, private/rental boat trips accounted for 51 
percent of angler fishing trips, and shore trips accounted for 44 
percent of recreational angler fishing trips. The number of party/
charter trips in each state ranged from 36,566 in DE to 335,740 in NJ 
(excluding ME and NH).
    There is very little empirical evidence available to estimate how 
the party/charter vessel anglers might be affected by the proposed 
fishing regulations. If the proposed measures discourage trip-taking 
behavior among some of the affected anglers, economic losses may accrue 
to the party/charter vessel industry in the form of reduced access 
fees. On the other hand, if the proposed measures do not have a 
negative impact on the value or satisfaction the affected anglers 
derive from their fishing trips, party/charter revenues would remain 
unaffected by this action. In an attempt to estimate the potential 
changes in gross revenues to the party/charter vessel industry in each 
state, two hypothetical scenarios were considered:

[[Page 14764]]

A 25-percent reduction, and a 50-percent reduction, in the number of 
fishing trips that are predicted to be affected by implementation of 
the management measures in the Northeast (ME through NC) in 2009.
    Total economic losses to party/charter vessels were then estimated 
by multiplying the number of potentially affected trips in each state 
in 2009, under the two hypothetical scenarios, by the estimated average 
access fee of $60.86\1\ paid by party/charter anglers in the Northeast 
in 2007. Finally, total economic losses were divided by the number of 
federally permitted party/charter vessels that participated in the 
summer flounder fisheries in 2007 in each state (according to homeport 
state in the Northeast Region Permit Database) to obtain an estimate of 
the average projected gross revenue loss per party/charter vessel in 
2009. The analysis assumed that angler effort and catch rates in 2009 
will be similar to 2008.
---------------------------------------------------------------------------

    \1\ 2006 party/charter average expenditure estimate of $57.76 
adjusted to 2008 equivalent using Bureau of Labor's Consumer Price 
Index.
---------------------------------------------------------------------------

    The Council noted that this method is likely to overestimate the 
potential revenue losses that would result from implementation of the 
proposed measures in these three fisheries for several reasons. First, 
the analysis likely overestimates the potential revenue impacts of 
these measures because some anglers would continue to take party/
charter vessel trips, even if the restrictions limit their landings. 
Also, some anglers may engage in catch and release fishing and/or 
target other species. It was not possible to estimate the sensitivity 
of anglers to specific management measures. Second, the universe of 
party/charter vessels that participate in the fisheries is likely to be 
even larger than presented in these analyses, as party/charter vessels 
that do not possess a Federal summer flounder, scup, or black sea bass 
permit because they fish only in state waters are not represented in 
the analyses. Considering the large proportion of landings from state 
waters (e.g., more than 90 percent of summer flounder and 94 percent of 
scup landings in 2007, respectively), it is probable that some party/
charter vessels fish only in state waters and, thus, do not hold 
Federal permits for these fisheries. Third, economic losses are 
estimated under two hypothetical scenarios: (1) A 25-percent and (2) a 
50-percent reduction in the number of fishing trips that are predicted 
to be affected by implementation of the management measures in the 
Northeast in 2009. Reductions in fishing effort of this magnitude in 
2009 are not likely to occur, given the fact that the proposed measures 
do not prohibit anglers from keeping at least some of the fish they 
catch, or the fact that there are alternative species to harvest. 
Again, it is likely that at least some of the potentially affected 
anglers would not reduce their effort when faced with the proposed 
landings restrictions, thereby contributing to the potential 
overestimation of potential impacts for 2009.

Impacts of Summer Flounder Alternatives

    The proposed action for the summer flounder recreational fishery 
would limit coastwide catch to 7.16 million lb (3,247 mt) by imposing 
coastwide Federal measures throughout the EEZ. As described earlier, 
upon 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.
    The impact of the proposed summer flounder conservation equivalency 
alternative (in Summer Flounder Alternative 1) among states is likely 
to be similar to the level of landings reductions that are required of 
each state. As indicated above, each state except DE, VA, and NC would 
be required to reduce summer flounder landings in 2009, relative to 
state 2008 landings, by the percentages shown in Table 1 of the 
preamble of this proposed rule. If the preferred conservation 
equivalency alternative is effective at achieving the recreational 
harvest limit, then it is likely to be the only alternative that 
minimizes adverse economic impacts, to the extent practicable, yet 
achieves the biological objectives of the FMP. Because states have a 
choice, it is expected that the states would adopt conservation 
equivalent measures that result in fewer adverse economic impacts than 
the more restrictive Commission adopted, NMFS proposed precautionary 
default measures (i.e., 21.5-inch (54.61-cm) minimum fish size, a 
possession limit of one fish, and an open season of July 4 through 
September 7). Under the precautionary default measures, impacted trips 
are defined as trips taken in 2008 that landed at least one summer 
flounder smaller than 21.5 inches (54.61 cm) or landed summer flounder 
during closed seasons. The analysis concluded that implementation of 
precautionary default measures could affect 3.0 percent of the party/
charter vessel trips in the Northeast, including those trips where no 
summer flounder were caught.
    The impacts of the NMFS proposed summer flounder coastwide 
alternative, i.e., a 20-inch (50.80-cm) minimum fish size, a two-fish 
possession limit, and a fishing season from May 1 through September 30, 
were evaluated using the quantitative method described above. Impacted 
trips were defined as individual angler trips taken aboard party/
charter vessels in 2008 that landed at least one summer flounder 
smaller than 20 inches (50.80 cm), that landed more than two summer 
flounder, or landed summer flounder during closed seasons. The analysis 
concluded that the measures would affect 0.69 percent of the party/
charter vessel trips in the Northeast, including those trips where no 
summer flounder were caught.
    Continuation of the current regulatory summer flounder coastwide 
management measures (i.e., a 19-inch (48.26-cm) minimum fish size, two-
fish possession limit, and a May 23 through September 1 fishing season) 
is not expected to constrain 2009 landings to the recreational harvest 
limit; therefore, continuation of those measures would be inconsistent 
with the summer flounder rebuilding program, the FMP, and the Magnuson-
Stevens Act.

Impacts of Black Sea Bass Alternatives

    The proposed action for the black sea bass recreational fishery 
would limit coastwide catch to 1.14 million lb (516 mt) by imposing 
coastwide Federal measures throughout the EEZ. The impact of the 
Council and Commission preferred black sea bass alternative (Black Sea 
Bass Alternative 1; a 12.5-inch (31.75-cm) minimum fish size, a 25-fish 
per person possession limit, and an open season of January 1-December 
31, 2009) would reduce black sea bass landings by 12 percent in 2009 
from 2008 levels. Impacted trips were defined as trips taken in 2008 
that landed at least one black sea bass smaller than 12.5 inches (31.75 
cm) or landed more than 25 black sea bass. Analysis concluded that 0.52 
percent of federally permitted party/charter vessel trips could be 
impacted by this alternative.
    The impacts of the non-preferred black sea bass coastwide 
alternative for status quo (Black Sea Bass Alternative 2; 12.0-inch 
(30.87-cm) minimum fish size, 25-fish per person possession limit, and 
no closed season) is not

[[Page 14765]]

expected to constrain 2009 landings to the recreational harvest limit; 
therefore, continuation of those measures in Federal waters would be 
inconsistent with the FMP and the Magnuson-Stevens Act.
    Black Sea Bass Alternative 3, (a 12.0-inch (30.87-cm) minimum fish 
size, 25-fish per person possession limit, and closed fishing season 
from May 16-June 14, 2009) would reduce landings by 13.3 percent. This 
is the most restrictive alternative analyzed by the Council. 
Implementation of this alternative would result in a greater reduction 
than is required for the 2009 recreational black sea bass fishery.
    Regionally, projected federally permitted party/charter revenue 
losses in 2009 range from $1.20 million to $5.72 million in sales, 
$440,000 to $1.94 million in income, and between 38 and 192 jobs, if a 
25-percent reduction in the number of affected trips occurs. The 
estimated losses are approximately twice as high if a 50-percent 
reduction in affected trips is assumed to occur.
    Potential revenue losses in 2009 could differ for federally 
permitted party/charter vessels that land more than one of the 
regulated species. The cumulative maximum gross revenue loss per vessel 
varies by the combination of permits held and by state. All 18 
potential combinations of management alternatives for summer flounder, 
scup, and black sea bass are predicted to affect party/charter vessel 
revenues to some extent in all of the northeastern coastal states. 
Although potential losses were estimated for party/charter vessels 
operating out of ME and NH, these results are suppressed for 
confidentiality purposes. Average party/charter losses for federally 
permitted vessels operating in the remaining states are estimated to 
vary across the 18 combinations of alternatives. For example, in MD, 
average losses are predicted to range from a high of $7,068 per vessel 
to a low of $1,860 per vessel, assuming a 25-percent reduction in 
effort, as described above. Average gross revenue losses per vessel 
under each of the 18 combinations of alternatives were generally 
highest in NC followed by NY, MA, MD, NJ, RI, VA, CT, then DE.

Summary

    The 2009 recreational harvest limits for summer flounder and scup 
are 15.3- and 41.5-percent higher, respectively, than the recreational 
harvest limits for year 2008. The 2009 black sea bass recreational 
harvest limit is 46 percent lower than the 2008 recreational harvest 
limit.
    The 2008 summer flounder recreational fishery exceeded the 
recreational harvest limit by 31 percent. As a result, the proposed 
recreational management measures for summer flounder are likely to be 
more restrictive for 2009 (i.e., either larger minimum fish size, lower 
possession limits, and/or shorter fishing seasons) under the proposed 
conservation equivalency system (Summer Flounder Alternative 1) than 
those in place in 2008, given the magnitude of exceeding the previous 
year recreational harvest limit.
    The scup recreational harvest limit was substantially increased for 
2009. Action taken by the Commission to maintain status quo measures 
for state waters will result in landings that are similar to 2008. Only 
a very minor fraction of the recreational harvest limit is taken in the 
Federal waters of the EEZ. While retaining status quo measures for 
Federal waters may result in minor increases in scup recreational 
landings, over 95 percent of landings are expected to occur from state 
waters that are outside NMFS's jurisdiction. Given the revised stock 
status for scup, maintenance of the status quo is not expected to 
result in overfishing or moving the stock towards an overfished 
condition.
    The proposed measures for black sea bass are more restrictive than 
the measures in place for 2008.
    The proposed management measures, or management system in the case 
of conservation equivalency, were chosen because they allow for the 
maximum level of recreational landings, while allowing the NMFS to 
achieve the objectives of the FMP. Summer flounder conservation 
equivalency permits states to implement management measures tailored, 
to some degree, to meet the needs of their individual recreational 
fishery participants, provided the level of reduction is equal to the 
overall reduction needed coastwide, consistent with Framework 
Adjustment 2 to the FMP. The maintenance of scup status quo was 
selected because it will allow for a modest fishery in Federal waters 
while ensuring that overfishing does not occur in 2009. The majority of 
scup recreational harvest occurs within state waters, beyond the 
jurisdiction of NMFS. The black sea bass management measures were 
selected as they are projected to permit the maximum amount of landings 
under the 2009 recreational harvest limit.
    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: March 26, 2009
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out 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.  648.102, the first sentence is revised to read as 
follows:


Sec.  648.102  Time restrictions.

    Unless otherwise specified pursuant to Sec.  648.107, vessels that 
are not eligible for a moratorium permit under Sec.  648.4(a)(3) and 
fishermen subject to the possession limit may fish for summer flounder 
from May 1 through September 30. * * *
* * * * *
    3. In Sec.  648.103, paragraph (b) is revised to read as follows:


Sec.  648.103  Minimum fish sizes.

* * * * *
    (b) Unless otherwise specified pursuant to Sec.  648.107, the 
minimum size for summer flounder is 20.0 inch (50.80 cm) TL for all 
vessels that do not qualify for a moratorium permit, and charter boats 
holding a moratorium permit if fishing with more than three crew 
members, or party boats holding a moratorium permit if fishing with 
passengers for hire or carrying more than five crew members.
* * * * *
    4. In Sec.  648.105, the first sentence of paragraph (a) is revised 
to read as follows:


Sec.  648.105  Possession restrictions.

    (a) Unless otherwise specified pursuant to Sec.  648.107, no person 
shall possess more than two summer flounder in, or harvested from, the 
EEZ, unless that person is the owner or operator of a fishing vessel 
issued a summer flounder moratorium permit, or is issued a summer 
flounder dealer permit. * * *
* * * * *
    5. In Sec.  648.107, paragraph (a) introductory text and paragraph 
(b) are 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

[[Page 14766]]

Carolina for 2009 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.
* * * * *
    (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 - July 4 through September 7; minimum size - 21.5 inches (54.61 
cm); and possession limit - one fish.
    6. In Sec.  648.143,paragraph (b) is revised to read as follows:


Sec.  648.143  Minimum sizes.

* * * * *
    (b) The minimum fish size for black sea bass is 12.5 inches (31.75 
cm) TL for all vessels that do not qualify for a moratorium permit, and 
for party boats holding a moratorium permit, if fishing with passengers 
for hire or carrying more than five crew members, and for charter boats 
holding a moratorium permit, if fishing with more than three crew 
members.
* * * * *
[FR Doc. E9-7323 Filed 3-31-09; 8:45 am]
BILLING CODE 3510-22-S