[Federal Register Volume 74, Number 120 (Wednesday, June 24, 2009)]
[Rules and Regulations]
[Pages 30002-30011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14877]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 090211163-9795-02]
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: Final rule.

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SUMMARY: NMFS implements recreational management measures for the 2009 
summer flounder and black sea bass fisheries and notifies the public 
that the recreational management measures for the scup fishery remain 
the same as in 2008. These actions are necessary to comply with 
regulations implementing the Summer Flounder, Scup, and Black Sea Bass 
Fishery Management Plan (FMP) and to ensure compliance with the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The intent of these measures is to prevent overfishing of 
the summer flounder, scup, and black sea bass resources.

DATES: Effective July 24, 2009.

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 New Street, Dover, DE 19901-6790. The EA/
RIR/IRFA is also accessible via the

[[Page 30003]]

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 and EA/RIR/IRFA document are available from Patricia 
A. Kurkul, Regional Administrator, Northeast Region, NMFS, 55 Great 
Republic Drive, Gloucester, MA 01930-2276.

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 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 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 nautical miles of their coasts, under the 
Commission's plan for summer flounder, scup, and black sea bass. The 
Federal regulations govern fishing activity in the EEZ, as well as 
vessels possessing a Federal fisheries permit, regardless of where they 
fish.
    The 2009 coastwide recreational harvest limits, after deduction of 
research set-aside (RSA), 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 2009 quota specifications, inclusive of the 
recreational harvest limits, were previously determined to be 
consistent with the 2009 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 2009 summer flounder, scup, and black sea bass fisheries was 
published on April 1, 2009 (74 FR 14760), and contained management 
measures (minimum fish sizes, possession limits, and fishing seasons) 
intended to keep annual recreational landings from exceeding the 
specified harvest limits.

2009 Recreational Management Measures

    Additional discussion on 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.

Summer Flounder Management Measures

    Based on the recommendation of the Commission, the NMFS Northeast 
Regional Administrator finds that the recreational summer flounder 
fishing measures proposed to be implemented by the states of 
Massachusetts through North Carolina for 2009 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 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 -- 2009 State Recreational Management Measures for Summer
                                Flounder
------------------------------------------------------------------------
                               Minimum Fish Size  Possession
                             --------------------    Limit      Fishing
            State                                 (number of    Season
                               inches      cm        fish)
------------------------------------------------------------------------
MA..........................  18.5      46.99     5           July 1
                                                               through
                                                               August 13
------------------------------------------------------------------------
RI..........................  21.0      53.34     6           June 17
                                                               through
                                                               December
                                                               31
------------------------------------------------------------------------
CT..........................  19.5      49.53     3           June 15
                                                               through
                                                               August 19
------------------------------------------------------------------------
NY..........................  21.0      53.34     2           May 15
                                                               through
                                                               June 15
                                                               and
                                                              July 3
                                                               through
                                                               August 17
------------------------------------------------------------------------
NJ..........................  18.0      45.72     6           May 23
                                                               through
                                                               September
                                                               4
------------------------------------------------------------------------
DE..........................  18.5      46.99     4           January 1
                                                               through
                                                               December
                                                               31
------------------------------------------------------------------------
MD\1\.......................  18.0      45.72     3           April 15
                                                               through
                                                               September
                                                               13
------------------------------------------------------------------------
VA..........................  19.0      48.26     5           January 1
                                                               through
                                                               December
                                                               31
------------------------------------------------------------------------
NC\2\.......................  15.0      38.10     8           January 1
                                                               through
                                                               December
                                                               31
------------------------------------------------------------------------
\1\Chesapeake Bay, MD - a 16.5-in (41.91-cm) minimum fish size, a 1-fish
  possession limit, and a fishing season of April 15-September 13
  applies.
\2\Pamlico Sound , NC - No person may possess flounder less than 14.0 in
  (35.56 cm) total length (TL) taken from internal waters for
  recreational purposes west of a line beginning at a point on Point of
  Marsh in Carteret County at 35[deg] 04.6166' N lat.-76[deg] 27.8000' W
  long., then running northeasterly to a point at Bluff Point in Hyde
  County at 35[deg] 19.7000' N lat.-76[deg] 09.8500' W long. In Core and
  Clubfoot creeks, the Highway 101 Bridge constitutes the boundary north
  of which flounder must be at least 14.0 (35.56 cm) in TL.

[[Page 30004]]

 
Albemarle Sound, NC - No person may possess flounder less than 14.0 in
  (35.56 cm) TL taken from internal waters for recreational purposes
  west of a line beginning at a point 35[deg] 57.3950' N lat.- 76[deg]
  00.8166' W long. on Long Shoal Point; running easterly to a point
  35[deg] 56.7316' N lat.-75[deg] 59.3000' W long. near Marker ``5'' in
  Alligator River; running northeasterly along the Intracoastal Waterway
  to a point 36[deg] 09.3033' N lat.-75[deg] 53.4916' W long. near
  Marker ``171'' at the mouth of North River; running northwesterly to a
  point 36[deg] 09.9093' N lat.-75[deg] 54.6601' W long. on Camden
  Point.
Browns Inlet South, NC - No person may possess flounder less than 14.0
  in (35.56 cm) TL in internal and Atlantic Ocean fishing waters for
  recreational purposes west and south of a line beginning at a point
  34[deg] 37.0000' N lat.-77[deg] 15.000' W long.; running southeasterly
  to a point 34[deg] 32.0000' N lat.-77[deg] 10.0000' W long.

Scup Management Measures

    Table 2 contains the coastwide Federal measures for scup in effect 
for 2008 and codified. The 2009 measures are unchanged from those at 50 
CFR part 648, subpart I, and are presented in Table 2.

                              Table 2 -- 2009 Scup Recreational Management Measures
----------------------------------------------------------------------------------------------------------------
                                              Minimum Fish Size
               Fishery               -----------------------------------  Possession Limit     Fishing Season
                                           inches              cm
----------------------------------------------------------------------------------------------------------------
Scup................................  10.5              26.67            15 fish            January 1 through
                                                                                             February 28, and
                                                                                            October 1 through
                                                                                             October 31
----------------------------------------------------------------------------------------------------------------

    The scup fishery in state waters will be managed under a regional 
conservation equivalency system developed through the Commission over 
the last 7 years. 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 2009.

Black Sea Bass Management Measures

    This rule implements the black sea bass measures contained in the 
April 1, 2009, proposed rule: An increase in minimum fish size from 
12.0 to 12.5 inches (30.48 cm to 31.75 cm) and status quo measures for 
possession limit (25 fish per person) and fishing season (January 1-
December 31, 2009). Table 3 contains the 2009 coastwide Federal 
measures for black sea bass.

                         Table 3 -- 2009 Black Sea Bass Recreational Management Measures
----------------------------------------------------------------------------------------------------------------
                                               Minimum Fish Size
               Fishery               ------------------------------------  Possession Limit     Fishing Season
                                           inches              cm
----------------------------------------------------------------------------------------------------------------
Black Sea Bass......................  12.5              31.75             25 fish             January 1 through
                                                                                               December 31
----------------------------------------------------------------------------------------------------------------

Comments and Responses

    Four comment letters were received regarding the proposed 
recreational management measures (74 FR 14760, April 1, 2009). Comments 
were received from two organizations: One from the New York State 
Department of Environmental Conservation's (NY DEC) Bureau of Marine 
Fisheries; and the other on behalf of a recreational fishing trade and 
advocacy organization, the United Boatmen of New York (UBNY). The other 
two comments were from private citizens. One private citizen commenter 
expressed general displeasure at how Total Allowable Landings (TALs) 
and other quotas are established but did not provide specific comment 
on the recreational management measures. No specific response is 
provided to this individual's comments, as the relevance to the 
recreational management measures could not be ascertained.
    The materials submitted by UBNY did not make specific comments 
about the proposed 2009 recreational management measures. The materials 
submitted reference the comments submitted by NY DEC and highlight many 
similar issues specifically commented on by NY DEC. Therefore, NMFS 
considers the response to the NY DEC comments as responsive to the UBNY 
concerns as well. Many of the issues raised by commenters for the 2009 
recreational management measures are identical to those raised for the 
2008 recreational management measures and are, in turn, the same as the 
arguments made by plaintiffs, which include the NY DEC and UBNY, in an 
ongoing lawsuit against the Secretary of Commerce (Secretary) for 
implementation of the 2008 summer flounder measures.\1\
---------------------------------------------------------------------------

    \1\State of New York et al. v. Gutierrez et al. Civil Action No. 
08-cv-02503-CPS
---------------------------------------------------------------------------

    Comment 1: The NY DEC alleged that state-by-state conservation 
equivalency violates National Standard 2 of the Magnuson-Stevens Act, 
which requires conservation and management actions to be based upon the 
best available scientific information.
    Specifically, the commenter alleged the following ways that state-
by-state conservation equivalency violates National Standard 2: (a) The 
use of Marine Recreational Fishery Statistical Survey (MRFSS) data to 
develop state-by-state conservation equivalency measures has inadequate 
resolution for state-level monitoring and management. The comment cites 
the 2006 NOAA-commissioned National Academy of Sciences independent 
review of MRFSS that stated monitoring fisheries at a state level is a 
finer stratification than originally intended for the data collected, 
and that the existing sampling strata may be too coarse a resolution to 
generate estimates that are adequate for management requirements; (b) 
the use of 1998 as a landings baseline as the starting point for 
landings reductions is outdated, inadequate, and flawed; (c) state-by-
state conservation equivalency is not responsive to changes that have 
occurred in stock status wherein the summer flounder stock has 
redistributed and is composed of larger, older fish, particularly 
adjacent to New York State; and (d) the level of angler effort and 
distribution has changed substantially since 1998, and MRFSS data would 
support increasing the percentage of

[[Page 30005]]

summer flounder recreational landings allocated to New York.
    Response: NMFS disagrees that managing the summer flounder 
recreational fishery using state-by-state conservation equivalency is a 
violation of National Standard 2. The following responds to the 
specific points raised in the above comment:
    a. The information provided by MRFSS, along with additional 
information provided by individual states and fishery independent 
surveys, is sufficient and appropriate to manage the recreational 
summer flounder fishery on a state-by-state basis.
    The analytical process for 2009 was not dissimilar to that used in 
2008: Both the Council and Commission considered the precision of MRFSS 
estimates at a state-by-state level; discussed the adequacy of, and 
equity issues related to, the 1998 landings baseline; evaluated the 
performance of conservation equivalency in the prior year, including 
the ``performance-based adjustment factor'' implemented for 2008; 
contemplated both coastwide and regional approaches to management; and, 
in conclusion, recommended the continued use of conservation 
equivalency with new modifications to NMFS for 2009.
    The Commission established a requirement for 2009 that at least 50 
percent of the necessary reductions for the fishing year be achieved by 
season closures rather than by imposing more stringent size or bag 
limits. This system modification was created by the Commission in 
response to the 2008 required ``performance-based adjustment factor'' 
having poor success in constraining landings to the required levels. 
The Commission requirement to call for a substantive adjustment to 
fishing seasons to achieve the desired individual state landing 
reductions is consistent with recommendations from the Council's Summer 
Flounder Monitoring Committee and Commission's Summer Flounder 
Technical Committee, both scientific advisory bodies to the Council and 
Commission, respectively, and NMFS. The recommendation for season 
closures is based on the premise that modification to seasons, either 
through periodic in-season closures or shortened overall seasons, are 
better suited to ensure a reduction in landings than are either changes 
in minimum fish size or possession limits. Fishery closures are noted 
by the Monitoring Committee and Technical Committee as having more 
significant compliance rates and, thus, result in near-zero landings 
when applied. Modifications to minimum fish size and possession limits 
have demonstrated higher levels of non-compliance that minimize their 
effectiveness. Additionally, inter-annual fish growth may result in 
diminished effectiveness of minimum fish sizes if that growth keeps 
pace with increases in size. The requirement to adjust seasons to 
better ensure landing reductions represents further refinement by the 
Commission to ensure that state-by-state conservation equivalency 
functions as envisioned and achieves the required conservation 
objectives.
    Framework Adjustment 2 to the FMP (66 FR 36208, July 11, 2001) 
states that conservation equivalency may only be used by area (i.e., 
states) if the proportional standard error of the MRFSS landings 
estimate, by area, is less than 30 percent. On a state-by-state basis, 
the 2008 MRFSS estimates of landings utilized in establishing the 2009 
conservation equivalency program have proportional standard errors 
ranging from a high of 26.3 percent for Massachusetts to a low of 10.8 
percent for New York. This is compared to 8.3 percent for the Mid-
Atlantic states (New York to Virginia), combined, and 12.1 percent for 
the New England states (Maine to Connecticut) combined. While the 
proportional standard error is lower when dealing with larger data 
aggregations, the error levels associated with individual states are 
well within the acceptable error levels specified in Framework 
Adjustment 2 to the FMP, which implemented the regulatory structure to 
permit management of the summer flounder recreational fishery through 
conservation equivalency.
    As was outlined in the 2008 response to comments (May 23, 2008; 73 
FR 29990), NMFS has been aware of limitations in the MRFSS design and 
data for some time. It is, in fact, why NOAA commissioned the review by 
the National Academy of Sciences. While the review pointed out numerous 
areas for improvement of the MRFSS sampling design, nowhere in the 
assessment did the National Academy of Sciences' reviewers indicate 
that use of the MRFSS data at smaller spatial scales (i.e., state-by-
state) was an inappropriate use of the data. Clearly, the precision of 
the landings estimates are improved when at an aggregate, coastwide 
level, but the use of the data to establish catch at a state level is 
not a violation of National Standard 2. The proportional standard error 
remains acceptable at the state-by-state level of resolution. The 
Commission's Technical Committee explored using the upper bound of the 
proportional standard error for each state's landings estimate as a 
means to make conservation equivalency more robust in 2008. The 
Technical Committee found that such an approach was impracticable, as 
it would have required many states to make downward harvest adjustments 
in years when no such adjustment was necessary. These considerations of 
the accuracy and precision of MRFSS data continue to be true for the 
2009 state-by-state conservation equivalency program. Moreover, the 
Commission has modified the conservation equivalency approach for 2009, 
attempting to further ensure that the system functions as envisioned.
    NMFS does not disagree that the use of current MRFSS methodology 
and data has moved well beyond their originally intended purpose. 
However, as has often been stated in the past, MRFSS continues to be 
the only source of data currently available to assess the effort, 
harvest, and discards in recreational fisheries at any spatial scale. 
NMFS understands the frustrations and disagreements that arise with the 
MRFSS data set when it is used for certain management purposes and is 
working to improve the quality and utility of data collected for 
recreational fisheries management. Were MRFSS data not utilized, there 
would be no alternative means to quantify recreational harvest, 
participation levels, or to assess management measures on a coastwide 
or state-by-state basis for all Atlantic states in the Northeast 
Region. Clearly, this would present substantial complications to 
effectively managing the summer flounder recreational fishery and the 
Magnuson-Stevens Act required objective of rebuilding the summer 
flounder stock. NMFS's development and implementation efforts for the 
Marine Recreational Information Program (MRIP), designed to address the 
National Academy of Sciences recommendations, fishery management needs, 
and to be responsive to input from recreational anglers, are ongoing. 
MRIP is the revised recreational survey methodology and data collection 
designed to be responsive to the National Academy of Sciences peer-
review recommendations. Detailed information on the MRIP program can be 
found on the NMFS Office of Science and Technology web site: http://www.st.nmfs.noaa.gov/mrip/. Some aspects of the MRIP program will 
become effective in the 2009 fishing year. In addition, a national 
saltwater angler registry, as required by the Magnuson-Stevens 
Reauthorization Act of 2006, will become effective on January 1, 2010. 
This registry will greatly assist recreational fishery data collection 
efforts.

[[Page 30006]]

    b. The conservation equivalency system was implemented in 2001 by 
Framework Adjustment 2 to the Federal FMP (66 FR 36208, July 11, 2001) 
and the Commission's companion action Addendum III to the Commission's 
Summer Flounder, Scup, and Black Sea Bass FMP. Under this process, 
states are allowed to design management measures to achieve their 
specified recreational management targets which, in turn, ensures that 
the coastwide recreational harvest limit will be achieved. NMFS has 
implemented conservation equivalency, as recommended by the Council and 
Commission, in each year since 2001. There are New York representatives 
on both the Council and Commission.
    The overarching process of conservation equivalency establishes a 
set of guidelines for states to tailor management measures that meet 
the conservation objectives of the FMP rather than being subject to a 
one-size-fits-all coastwide approach. The conservation equivalency 
framework is uniform and applied consistently for all states, without 
differentiating among U.S. citizens, nationals, resident aliens, or 
corporations on the basis of their state of residence. Individual 
states are free to develop, based on the fishery practices in their 
state, any combination of minimum fish size, possession limit, and 
fishing season to ensure that, when paired with the remaining Atlantic 
coastal states, the coastwide recreational harvest limit will not be 
exceeded. Each state's circumstance with respect to landings and 
overage is unique to that state and argues against the application of 
the same measures for each state. The Commission's Technical Committee 
evaluates the proposed state measures and, if sufficient, a 
recommendation to adopt, as functionally equivalent, the reviewed and 
approved measures is forwarded by the Commission to NMFS for 
implementation. This ensures that the conservation objectives of the 
FMP and the summer flounder rebuilding program are met.
    To achieve conservation equivalency, the Commission, not NMFS, 
establishes a base recreational allocation that each state receives 
from the coastwide recreational harvest limit and specifies the percent 
reduction or liberalization in landings each state's measures must meet 
for each year. The conservation equivalency system does not result in a 
direct distribution of fishing privileges to individual states by NMFS. 
This allocation is not earmarked solely for the residents of an 
individual state; rather, any landing made in the state in question is 
counted against that state's recreational allocation. Fishery 
participants are free to participate in multiple states, land in 
adjacent states, etc., and are not discriminated against based on their 
state of residence.
    c. NMFS agrees that the status of the summer flounder stock has 
changed since 1998, as the stock has experienced rebuilding toward the 
maximum sustainable yield level. The summer distribution of summer 
flounder is, as stated by the commenters, primarily in inshore areas 
from the Mid-Atlantic Bight to southern New England. There has been an 
increase in both fish ages and sizes in the past decade. NMFS 
reiterates what was stated in response to comments in 2008: That catch 
levels (i.e., quotas) are established annually and that increases in 
stock size, distribution, and increases in fish size and age are all 
captured within the stock assessment framework utilized to generate 
quota-related information. The issue raised by NY DEC is one of 
allocation that functions separately from stock status. (See response 
to Comment 2 for additional information.)
    The Commission has continued to establish the basis for the state 
recreational harvest allocations as the percentage of 1998 coastwide 
recreational landings by state. However, the Commission is at liberty 
to revise or amend these allocation percentages independently of the 
Council and/or NMFS as specific state recreational fishery percent 
allocations are not codified in the Federal regulations that implement 
the conservation equivalency program. The Commission has had 
significant discussion in both 2007 and 2008 about reevaluating 1998 as 
the baseline year. In both years, the Commission has elected to 
continue using 1998 coastwide landings by state as the baseline. The 
continued use of 1998 landings data by the Commission was not 
arbitrary; the intent of 1998 as the base allocation year was to 
establish a reference against which the effects of proposed regulations 
could be effectively evaluated.
    d. The Commission is at liberty to explore modifications to state 
allocations based on angler-related statistics, number of anglers, or 
angler effort. To date, the Commission has elected to use the last year 
(1998) in which consistent measures were applied coastwide as the 
starting point for annual allocations. NMFS has no grounds to 
disapprove the recommended 2009 conservation equivalency measures 
recommended by the Commission because one member state of the 
Commission disagrees with the allocation structure utilized to derive 
equivalent measures. The amount of fish provided each state from the 
overall recreational harvest limit is wholly a function of the 
Commission process.
    For these reasons, NMFS contends that implementing conservation 
equivalency, as recommended by the Council and Commission for 2009, 
does not violate National Standard 4 or National Standard 2 of the 
Magnuson-Stevens Act.
    Comment 2: The NY DEC also alleged that state-by-state conservation 
equivalency violates National Standard 4 of the Magnuson-Stevens Act, 
which states that conservation and management actions implemented by 
NMFS shall not discriminate between residents of different states. The 
commenter raised concerns about disparities that arise between adjacent 
states' management measures under the state-by-state conservation 
equivalency management system, specifically citing the differences 
between 2009 New York and adjacent New Jersey and Connecticut measures. 
The commenter asserts that such differences are highly inequitable, 
unfair, and have no linkage to conservation and recovery of summer 
flounder. The commenter also stated that the overages that have 
occurred in New York waters in recent years are not the result of 
cheating, but are a result of recovery of summer flounder and natural 
changes to the summer flounder population. Thus, the commenter states, 
New York is being punished unfairly for conditions beyond its control.
    Response: NMFS disagrees that state-by-state conservation 
equivalency is a violation of National Standard 4 for the reasons 
outlined in response to comment 1c. The recreational quotas distributed 
to the states under the Commission's Interstate Summer Flounder FMP are 
based on the application of the same rule to each state; individual 
state quotas are based on the state's share of the overall 1998 
recreational catch of summer flounder. Understandably, since 
recreational landings varied in each state, state recreation quotas 
derived from the landings would vary as well. So too would the measures 
in each state developed to achieve the state's conservation equivalency 
with the Federal coastwide measures adopted by the Council and 
Commission as a non-preferred alternative. In essence, differing state 
measures are derived from the application of the same rule to each 
state and designed to achieve the same result using varying quotas. The 
application of the same rule to a number of states that yields 
different results among those states due to disparate landing levels is 
consistent with National Standard 4.

[[Page 30007]]

    NY DEC asserts that there is nothing that can be done to control 
excessive recreational harvest, given the large number of anglers 
paired with availability of large summer flounder in New York waters, 
and further insinuates that only a change in allocation will provide 
relief to the continued annual overages. The angler noncompliance rate 
with the minimum fish sizes established for New York has ranged from 5 
to 13 percent during the years 1999 to 2008. NMFS contends that there 
are indeed measures that could be undertaken that would ensure that New 
York landings do not exceed their given allocation in any given year: 
Closed seasons during peak fishing seasons; shortened overall seasons; 
consideration of angler rates of noncompliance in calculating 
effectiveness of proposed measures; increases in enforcement efforts; 
supplementation of MRFSS collected data by state data-collection 
programs; and use of a buffer to sufficiently mitigate management 
uncertainty when crafting recreational management measures are all 
approaches that have to date, gone largely unused by NY DEC in 
establishing recreational summer flounder measures. NMFS contends that 
New York must ensure responsible, effective measures in 2009 to break 
the cycle wherein landings targets are consistently exceeded.
    Comment 3: Comments by the NY DEC on managing summer flounder as a 
unit stock are similar to those provided on the 2008 recreational 
management. The comment suggests that state-by-state conservation 
equivalency violates National Standard 3 of the Magnuson-Stevens Act, 
which requires individual fish stocks to be managed as a unit 
throughout their ranges, to the extent practicable. This year, 
additional comments were added regarding the scientific reasoning for 
state-by-state management.
    Response: NMFS disagrees with the commenter, as the summer flounder 
stock is managed as a single unit, consistent with National Standard 3. 
National Standard 3 does not require that management measures within 
the management unit be the same. Management is cooperative among the 
Commission, which represents individual states in the management unit, 
the Council, and NMFS. The stock assessment conducted in support of 
annual TAL setting is for the entire Northeast Region management unit 
for summer flounder, from Maine to North Carolina. Catch limits for the 
recreational and commercial fisheries are established for the entire 
coast. The overarching commercial TAL is managed on a state-by-state 
basis, parsed by historic landings percentage by each state. 
Conversely, the recreational fishery may employ coastwide measures, or 
regional or state-by-state conservation equivalency to achieve the 
coastwide recreational harvest level. When state-by-state conservation 
equivalency is utilized for management, the individual state management 
measures are structured to achieve equivalency with the overarching 
coastwide (i.e., single management unit) recreational harvest limit. 
Furthermore, the regulations implementing National Standard 3 (50 CFR 
600.320) clearly state that management measures need not be identical 
for each geographic area within the management unit.
    The comment that fish do not recognize geopolitical boundaries is 
often used as an argument against management systems. The overarching 
scientific approach for managing the summer flounder stock has been 
previously described. An annual catch level is determined to ensure 
that conservation objectives are met for the year. From there, for 
summer flounder, the overall catch level is parsed into commercial and 
recreational sectors and further subdivision to states. These further 
subdivisions are not scientific in nature, but are allocative, and 
there are no requirements that the allocation be inherently 
biologically based, provided the sum of the allocations does not exceed 
the annual science-based conservation objective. As previously 
described, the recreational state-by-state allocation criteria utilized 
by the Commission is based on the last year of consistent coastwide 
measures (1998). The Commission is free to revisit and modify this 
allocation structure at any time as the individual state recreational 
harvest shares are not codified in Federal regulation.
    Comment 4: NY DEC has alleged that state-by-state conservation 
equivalency violates National Standard 6 of the Magnuson-Stevens Act, 
which states that conservation and management measures shall take into 
account and allow for variations among, and contingencies in, 
fisheries, fishery resources, and catches. The basis for the 
commenter's assertion is that conservation equivalency does not address 
a northward shift in summer flounder stock distribution.
    Response: NMFS disagrees and asserts that the commenters have 
misinterpreted the intent of National Standard 6, which is to ensure 
that an FMP management regime includes some protection against 
uncertainties that may arise. National Standard 6 directs FMPs to have 
a suitable buffer, in favor of conservation, to deal with uncertainty, 
which may also be stated as a conservative approach. Examples provided 
in NMFS guidance on National Standard 6 (50 CFR 600.336) include 
reductions in optimum yield, establishment of reserves, and adjustable 
management techniques to compensate for changes that occur during a 
fishing year as suitable buffers to mitigate uncertainty.
    In regard to conservation equivalency, a summer flounder stock 
assessment is conducted annually, and fully accounts for, among other 
things, stock distribution, changes in stock size, and fishery 
removals. The stock assessment does fully account for changes in stock 
dynamics and distribution in providing the basis for setting the annual 
coastwide TAL, which is then divided among the recreational and 
commercial fisheries.
    Further, both the states and NMFS are able to monitor recreational 
harvests during the fishing season, and both can take corrective or 
closure actions to ensure that mortality objectives or harvest targets 
are not exceeded. For these reasons, NMFS finds that the use of state-
by-state conservation equivalency complies with National Standard 6 of 
the Magnuson-Stevens Act.
    Comment 5: NY DEC commented that state-by-state conservation 
equivalency does not appear to be conserving the fishery and that 
coastwide measures would make better use of the available data and 
provide a new baseline year for future landings reductions. NY DEC has 
requested that NMFS implement coastwide measures instead of the Council 
and Commission's preferred alternative for state-by-state conservation 
equivalency.
    Response: NMFS has been continually concerned with what was 
described by NY DEC as the states' practices of adjusting recreational 
measures to maximize harvest within the individual state allocation or, 
more plainly stated, conducting analysis that gets as close as possible 
to the landings limit without exceeding, on paper, said limit. Many of 
NMFS's concerns, raised in correspondence from NMFS Northeast Regional 
Administrator Patricia Kurkul and former Assistant Administrator Dr. 
William Hogarth, have been quoted often in the NY DEC comments.
    The conservation equivalency system has not remained static since 
NMFS first raised concerns that the system must be improved to provide 
a higher likelihood of constraining landings to the established 
recreational harvest limit. There have been positive advances in

[[Page 30008]]

how the conservation equivalency analysis is conducted and the 
stipulations that the Commission has required of member states, all of 
which are designed to improve the performance of the system and ensure 
conservation objectives are met. NMFS has given deference to the states 
through the Commission process to continue to explore measures that 
improve the performance of conservation equivalency, provided the 
requirements of Framework Adjustment 2 to the FMP, the overarching FMP 
regulations, the Magnuson-Stevens Act, and other applicable law are 
satisfied in so doing. NMFS continues to encourage individual states, 
though the Commission, to conduct analyses that provide a buffer 
between expected landings and individual states landing limits in the 
absence of more qualitative means of improving conservation 
equivalency.
    As noted in the comment, the Commission required a ``performance-
based adjustment factor'' for the 2008 fishery, as well as requiring 
the use of a predicted average fish weight. This system further reduced 
states' 2008 targets by a factor that was derived by taking the average 
of yearly harvest-to-target performance by state from 2001-2007. As 
indicated in the comment by NY DEC, this system did not ensure that the 
2008 recreational management targets were not exceeded by a number of 
states.
    For 2009, the Commission is requiring a new refinement to the 
conservation equivalency system: States that have required reductions 
to meet their 2009 landings targets must ensure that at least half of 
the reduction is the result of modification to fishing seasons. NMFS 
contends that this is a continued demonstration of the Commission's 
willingness to make substantive improvements in the conservation 
equivalency management system. Were the ``performance-based adjustment 
factor'' recommended for 2009 or no modification of how states set 
minimum fish size, possession limit, and fishing season required by the 
Commission, the approval of state-by-state conservation equivalency 
would have been difficult for NMFS to justify. This is because of the 
past repetitive failures of the unmodified conservation equivalency 
program and NMFS's need to rebuild the summer flounder stock by 2013.
    For NMFS to disapprove the Council's recommendation and substitute 
alternative measures, in this case coastwide management measures, NMFS 
must reasonably demonstrate that the recommended measures are either 
inconsistent with applicable law or otherwise demonstrate that the 
conservation objectives of the FMP will not be achieved by implementing 
the recommendation in question. NMFS does not find the Council and 
Commission's recommendation are legally suspect or incapable of 
achieving the FMP's conservation objectives in light of the reduction 
in fishing season mandated by the Commission for use in 2009.
    However, NMFS remains concerned that there is little margin for 
error in the remaining 3 years of the summer flounder rebuilding plan 
(2010-2012). Therefore, recreational landings will be monitored in 
season and, if necessary to ensure the mortality objectives are not 
compromised for 2009, an inseason closure of the EEZ may occur. Any 
such closure action would be announced through multiple media outlets, 
including publication of a notice in the Federal Register.
    Use of information on a coastwide basis would improve the precision 
of the MRFSS estimates and would, as indicated by the commenters, 
provide a new baseline year of landings for future use. The level of 
precision provided under state-by-state conservation equivalency is not 
of insufficient resolution for management (see response to Comment 1) 
and, should states have concerns about the precision of landings 
estimates at a state level, NMFS recommends establishing recreational 
management measures that provide a sufficient buffer to mitigate for 
any loss of precision.
    NMFS is implementing, through this final rule, state-by-state 
conservation equivalency as recommended by both the Council and 
Commission for the reasons previously outlined in the preamble to this 
rule. Under conservation equivalency, each state has implemented a 
unique minimum fish size, possession limit, and fishing season tailored 
to ensure that these measures result in recreational landings 
equivalent to the coastwide recreational harvest level.
    Comment 6: NY DEC requested that the 2008 landings estimate for New 
York be adjusted from 600,000 fish to 565,000 fish. The change in 
number is a result of the final 2008 MRFSS catch data being available 
as opposed to the estimated landings used during the Council and 
Commission recreational management measures development discussion.
    Response: The individual state landings limits, including the 
percent reduction from the previous year landings estimate and target 
number of fish to be landed, are specified through the Commission 
process. Estimated landings are often utilized as final prior year 
landings estimates are not available until the first quarter of the 
following year. The Commission's Summer Flounder Management Board would 
need to approve measures for New York designed to achieve any modified 
2009 landings target. NMFS recommends that NY DEC pursue this 
discussion with the Commission and Summer Flounder Management Board.
    Comment 7: One commenter stated that the 2009 recreational 
management measures are unfair to the financial lower class, further 
stating that if one has money and he/she can buy a permit, they can 
presumably participate in the recreational fisheries for summer 
flounder, scup, or black sea bass.
    Response: The Council conducted analysis consistent with Executive 
Order 12898, which directs each Federal agency to achieve environmental 
justice as part of its mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects of its programs, policies, and activities on 
minority populations and low-income populations. Council analysis 
indicated that 28 percent of marine recreational anglers fish for 
reasons other than recreation and one-third rely on catching marine 
resources as a cost-saving food source or supplement to income. The 
black sea bass and scup possession limits are unchanged for 2009. Under 
conservation equivalency for summer flounder, the management measures 
should permit the fishery to operate in a manner that dissipates, to 
the extent practicable, adverse effects on the angling population while 
ensuring that conservation objectives are met. The Council concluded 
that, based on this analysis contained in the EA/RIR/IRFA document (see 
ADDRESSES for information on obtaining the source document), the 
actions of the 2009 recreational management measures were not expected 
to cause disproportionately high adverse or economic effects on low-
income populations.
    Regarding the commenter's second point, there are currently no 
Federal permit fees for private anglers or for individuals to obtain a 
Federal party/charter permit.

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
final rule implementing the 2009 summer flounder, scup, and black sea 
bass recreational management measures is necessary for the conservation 
and management of the summer flounder, scup, and black sea bass 
fisheries, and

[[Page 30009]]

that it is consistent with the Magnuson-Stevens Act and other 
applicable laws.
    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, NMFS's responses to those comments, 
and a summary of the analyses completed to support the action. Copies 
of the EA/RIR/IRFA and supplement are available from the Council and 
NMFS (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.

A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Proposed Rule as a 
Result of Such Comments

    A summary of the comments received and NMFS's responses thereto is 
contained in the preamble of this rule. None of those comments 
addressed specific information contained in the IRFA economic analysis. 
One comment received stated that the 2009 recreational management 
measures were unfair to the financial lower class. See response to 
Comment 7 in the Comment and Responses section. No changes have been 
made from the proposed rule as a result of the comments received.

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 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.

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

    No-action alternatives. 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 2008 fishing season. The no-action measures were analyzed in 
Alternative 2 for each species in the Council's EA/RIR/IRFA.
    For summer flounder, state-specific implications of the no-action 
(coastwide) alternative of a 20.0-inch (50.80-cm) minimum fish size, a 
two-fish possession limit, and a May 1 through September 30, 2009, 
fishing season would not achieve the mortality objectives required, 
and, therefore, cannot be continued for the 2009 fishing season. 
Similarly, the no-action alternative for black sea bass (a 12.0-in 
(30.48-cm) minimum fish size, a 25-fish possession limit, and no closed 
fishing season) would result in fishing mortality that exceeds the 
level established for 2009 and, therefore, cannot be continued for the 
2009 fishing season. This rule implements the no-action alternative for 
scup (i.e., status quo). The implications of so doing are not 
substantial; the management measures remain the same as those in place 
for 2008. Council analysis indicates that minimal impact may occur even 
with continuation of the status quo scup measures. These impacts would 
likely result from changes in year-to-year costs associated with 
fishing for scup.
    Summer flounder alternatives. In seeking to minimize the impact of 
recreational management measures (minimum fish size, possession limit, 
and fishing season) on small entities (i.e., Federal party/charter 
permit holders), NMFS is constrained to implementing measures that meet 
the conservation objectives of the FMP and Magnuson-Stevens Act 
rebuilding program requirements. As previously indicated, the no-action 
alternative for summer flounder was considered but rejected by the 
Council, and subsequently NMFS, on the grounds that analysis indicated 
it would not ensure that the 2009 mortality objectives would be met. 
The remaining alternatives examined by the Council and forwarded for 
consideration by NMFS consisted of the preferred alternative of state-
by-state conservation equivalency with a precautionary default 
backstop, and the non-preferred alternative of coastwide measures. 
These were alternatives 1 and 2, respectively, in the Council's EA/RIR/
IRFA. These two alternatives were determined by the Council analyses to 
satisfy the 2009 conservation objectives for the recreational fishery, 
i.e., analysis indicated that implementation of either would constrain 
recreational landings within the 2009 recreational harvest limit. 
Therefore, either alternative recreational management system could be 
considered for implementation by NMFS, as the critical metric of 
satisfying the regulatory and statutory requirements would be met by 
either.
    Next, NMFS considered the recommendation of both the Council and 
Commission. Both groups recommended implementation of state-by-state 
conservation equivalency, with a precautionary default backstop. The 
recommendations of both groups were not unanimous: New York 
representatives dissented and voted against conservation equivalency in 
the Commission proceedings, and the Council representatives from New 
York likewise voted against continued recommendation of conservation 
equivalency in 2009.
    The conservation equivalency approach allows states some degree of 
flexibility in the specification of management measures, unlike the 
application of one set of uniform coastwide measures. The degree of 
flexibility available to states under conservation equivalency is 
constrained to a combined suite of minimum fish size, possession limit, 
and fishing season that will achieve the required percent reduction 
required for 2009 (i.e., achieve the conservation objectives). This 
provides the opportunity for states to construct measures that achieve 
the conservation objectives while providing a state-specific set of 
measures in lieu of the one-size-fits-all coastwide measure. States 
that fail to provide measures, or whose measures do not achieve the 
required reduction, are assigned the more restrictive precautionary 
default measures. For 2009, the Commission required that states 
obligated to reduce their 2009 landings under the conservation 
equivalency program do so by manipulating the fishing season through 
either periodic fishery closures or shortened overall fishing seasons. 
Specifically, the Commission required that at least 50 percent of any 
required reduction in landings was to occur as the result of season 
manipulation, with the remainder of any reduction achieved through 
modification to minimum fish size and/or possession limits. This

[[Page 30010]]

recommendation follows advice provided by the Commission's Technical 
Committee and Council's Summer Flounder Monitoring Committee that 
modification to fishing season is a more effective means of ensuring 
landings reduction than are either changes to minium fish size or 
possession limit.
    At this time, it is not possible to determine the precise economic 
impact on small entities under conservation equivalency. The specific 
measures adopted for each state were only made available to NMFS from 
the Commission on May 7, 2009, and were unavailable for analysis during 
this rulemaking. Because the recreational fisheries in many states will 
have begun by the time this rule is effective, NMFS has elected to 
forego quantitative analysis of the specific conservation equivalency 
measures as implemented by the individual states, as the need to have 
measures in place in a timely fashion outweighs the benefits of 
delaying publication of this rule to complete further analysis. 
However, economic impact is likely to be proportional to the level of 
landings reductions required for each individual state. As such, the 
greater the percent reduction required for states in 2009 (Table 4), 
the greater the potential for higher economic impacts on small entities 
in comparison to coastwide measures dependent on the configuration of 
management measures ultimately selected.

     Table 4. 2009 State-by-State Percent Summer Flounder Recreational Fishery Landings Reduction Required Under Framework Adjustment 2 Conservation
                                                                 Equivalency Program.\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                    State                         MD          RI          CT          NY          NJ          DE          MD          VA          NC
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent Required Reduction                           24          42          35          39           7           0          51           0           0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Based on a 70.4-percent reduction from 1998 landings and a 12.0-percent reduction from 2008 landings.

    For NMFS to disapprove the Council's recommendation for 
conservation equivalency and substitute coastwide management measures, 
NMFS must reasonably demonstrate that the recommended measures are 
either inconsistent with applicable law or demonstrate that the 
conservation objectives of the FMP will not be achieved by implementing 
conservation equivalency. NMFS does not find the Council and 
Commission's recommendation to be inconsistent with the implementing 
regulations of the FMP found at Sec.  648.100 or the Magnuson-Stevens 
Act. Furthermore, NMFS finds that the Commission requirement to 
manipulate fishing seasons for at least half of the state's 2009 
reductions is a novel, continued demonstration to try and improve the 
performance of conservation equivalency. In 2008, the Commission 
implemented an additional performance based adjustment that further 
increased several state's required reductions for the year. This 
performance-based adjustment did not prevent the 2008 recreational 
harvest limit from being exceeded. Accordingly, the Commission has 
required a different approach for 2009, with the expectation that it 
will be more effective than the system in place for 2008.
    The use of coastwide management measures was considered by NMFS. In 
fact, as commenters stated in response to the proposed rule, NMFS had 
previously advocated for a coastwide approach in the early stages of 
past years' recreational fishery management measures development. The 
economic impacts on small entities under the coastwide measures 
management system would vary in comparison to the conservation 
equivalency system dependent on the specific state wherein the small 
entities operate. In the Council's provided analysis, closed seasons 
typically result in a higher economic impact to small entities than do 
increases in minimum fish sizes or reduction in possession limits. The 
reason for this is that angler success begins to decline at higher 
minimum fish size and higher possession limits, yielding lower return 
on the effectiveness of implementing such measures. Closed seasons, 
however, are unmistakable in their effectiveness as they permit no 
harvest irrespective of fish size or possession limit, provided there 
are no compliance issues. Closed seasons also are typically more easily 
enforceable. The interplay between the three management measures and 
the inability to quantitatively assess the impacts of the state's 
implemented conservation equivalency measures make definitive 
statements regarding impacts difficult to provide. Both fishery 
independent and dependent data suggest that larger summer flounder are 
less common in the southern portion of the management range; therefore, 
implementation of coastwide measures may have a more profound economic 
impact on small entities operating in the southern portion of the 
management area if the minimum fish size is set larger than fish that 
are typically available in southern states. Conservation equivalency is 
generally expected to mitigate the economic impact in states with lower 
required percent reductions for 2009 compared to the 12-percent 
coastwide reduction that would be necessary were coastwide measures 
employed. In those states, management measures can be tailored to suit 
the expressed needs of both small entities and other recreational 
fishery participants while achieving the required conservation 
equivalency percent reduction. Conversely, coastwide measures may yield 
lower economic impacts for states with the percent reductions greater 
than the total coastwide level of reduction required for 2009 by 
permitting smaller minimum fish sizes paired with slightly lower 
possession limits, and comparable fishing seasons than would be 
required to be implemented under conservation equivalency.
    NMFS is implementing the Council and Commission's recommended 
state-by-state conservation equivalency measures for the reasons 
previously stated: (1) The state-by-state conservation equivalency 
management system has again been modified, by the Commission, from the 
previously utilized methodology that reduced the magnitude of exceeding 
the recreational harvest limit in 2008 but ultimately did not ensure 
landings remained below the desired level; and (2) NMFS finds no 
compelling reason to disapprove the Council and Commission's 
recommended 2009 management system, as the analysis provided by the 
Commission's Technical Committee demonstrates that the improved 
conservation equivalency system will provide a high likelihood that the 
2009 recreational harvest limit will not be exceeded. To further ensure 
that the 2009 recreational harvest limit is not exceeded, NMFS is 
prepared to close the EEZ during the fishing season if harvest 
projections indicate that the 2009 recreational harvest limit may be 
exceeded before the end of the calendar year.
    Black sea bass alternatives. Similar to summer flounder, the 
options available

[[Page 30011]]

for black sea bass recreational management measures are constrained to 
selecting a suite of minimum fish size, possession limit, and fishing 
season measures that achieves the annual conservation objectives. In 
this case, the conservation objective is a level of recreational black 
sea bass landings that is below the 2009 recreational harvest level. 
Therefore, the selection of measures available to mitigate the economic 
impact on small entities is constrained to those measures that will 
permit the maximum amount of recreational landings while achieving the 
specified conservation objectives for the fishing season.
    For 2009, a coastwide reduction in black sea bass landings of 10.0 
percent is necessary to achieve the conservation objective. The 
Council's EA/RIR/IRFA evaluated alternatives 1 and 3 for black sea 
bass, which would achieve this objective. The Council recommended, and 
NMFS is implementing, Alternative 1, consisting of a half-inch increase 
in minimum fish size from 12.0 to 12.5 inches (30.48 cm to 31.75 cm) 
and maintenance of the status quo 25-fish possession limit and year-
round season (January 1-December 31, 2009), because it is projected to 
achieve a 12.0-percent reduction in black sea bass recreational 
landings in 2009. Alternative 3, consisting of a 12.0-inch (30.48-cm) 
minimum fish size, a 25-fish possession limit, and fishing seasons 
January 1 through May 15 and June 15 through December 31, 2009, is 
projected to reduce landings by 13.3 percent from 2008 levels. The 
measures of this alternative are more restrictive than necessary to 
achieve the conservation objectives for 2009 and were not recommended 
by either the Council or Commission. Therefore, this rule implements 
the increased minimum fish size contained in Alternative 1, as 
recommended by both the Council and Commission.

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 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 small entity compliance guide are available 
from NMFS (see ADDRESSES) and at the following website: http://www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 18, 2009.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.

0
2. In Sec.  648.102, the first sentence of the introductory text 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. * * *

0
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 inches (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.
* * * * *

0
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. * * *
* * * * *

0
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 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.

0
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. E9-14877 Filed 6-23-09; 8:45 am]
BILLING CODE 3510-22-S