[Federal Register Volume 75, Number 130 (Thursday, July 8, 2010)]
[Rules and Regulations]
[Pages 39170-39178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16651]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0907211158-0265-02]
RIN 0648-AY04


Fisheries of the Northeastern United States; Recreational 
Management Measures for the Summer Flounder, Scup, and Black Sea Bass 
Fisheries; Fishing Year 2010

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 2010 
summer flounder, scup, and black sea bass fisheries. 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 August 9, 2010.

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) and EA/RIR/IRFA Addendum are 
available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery 
Management Council, Room 2115, Federal Building, 800 N. State Street, 
Suite 201, Dover, DE 19901. The EA/RIR/IRFA is also accessible via the 
Internet at http://www.nero.noaa.gov. The Final Regulatory Flexibility 
Analysis (FRFA) consists of the IRFA, public comments and responses 
contained in this final rule, and the summary of impacts and 
alternatives contained in this final rule. Copies of the small entity 
compliance guide and EA/RIR/IRFA document and addendum 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 state from North 
Carolina to Maine 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 2010 coastwide recreational harvest limits, after deduction of 
research set-aside (RSA), are 8,586,440 lb (3,896 mt) for summer 
flounder; 3,011,074 lb (1,366 mt) for scup; and 1,830,390 lb (830 mt) 
for black sea bass. The final 2010 quota specifications, inclusive of 
the recreational harvest limits, were previously implemented by NMFS 
effective January 1, 2010 (74 FR 67978; December 22, 2009), for summer 
flounder and scup, and effective February 2, 2010, for black sea bass 
(75 FR 6586).
    The proposed rule to implement annual Federal recreational measures 
for the 2010 summer flounder, scup, and black sea bass fisheries was 
published on April 27, 2010 (75 FR 22087), along with proposed 
management measures (minimum fish sizes, possession limits, and fishing 
seasons) intended to keep annual recreational landings from exceeding 
the specified harvest limits.

2010 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

    The Commission notified the NMFS Northeast Regional Administrator 
by letter dated April 6, 2010, that the 2010 summer flounder 
recreational fishery management programs (i.e., minimum fish size, 
possession limit, and fishing seasons) implemented by the states from 
Massachusetts to North Carolina have been reviewed by the Commission's 
Technical Committee and approved by the Commission's Summer Flounder 
Management Board (SF Board). The correspondence indicates that the 
Commission-approved management programs are projected to restrict 2010 
recreational summer flounder coastwide landings consistent with the 
state-specific requirements established by the Technical Committee and 
SF Board through the Commission process.
    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 individual states 
for 2010 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 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 to recognize 
state-implemented measures as conservation equivalent of the coastwide 
recreational management measures for 2010. For clarity, the 2010

[[Page 39171]]

summer flounder management measures adopted by the individual states 
vary according to the state of landing, as specified in the following 
table:

  Table 1--2010 Commission Approved State-by-State Conservation Equivalent Recreational Management Measures for
                                                 Summer Flounder
----------------------------------------------------------------------------------------------------------------
                                                  Minimum Fish   Possession
                                                      Size          Limit
                     State                     ----------------- (number of             Fishing Season
                                                inches     cm       fish)
----------------------------------------------------------------------------------------------------------------
MA                                               18.5    46.99       5                       May 22-September 6
----------------------------------------------------------------------------------------------------------------
RI                                               19.5    49.53       6                        May 1-December 31
----------------------------------------------------------------------------------------------------------------
CT                                               19.5    49.53       3                         May 15-August 25
----------------------------------------------------------------------------------------------------------------
NY                                               21.0    53.34       2                       May 15-September 6
----------------------------------------------------------------------------------------------------------------
NJ                                               18.0    45.72       6                       May 29-September 6
----------------------------------------------------------------------------------------------------------------
DE                                               18.5    46.99       4                     January 1-October 13
----------------------------------------------------------------------------------------------------------------
MD                                               19.0    48.26       3             April 17 through November 22
----------------------------------------------------------------------------------------------------------------
VA                                               18.5    46.99       4            January 1 through December 31
----------------------------------------------------------------------------------------------------------------
NC\1\                                            15.0    38.10       8            January 1 through December 31
----------------------------------------------------------------------------------------------------------------
\1\ 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.
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

    This rule implements the measures contained in the April 27, 2010, 
proposed rule: A 10.5-in (26.67-cm) minimum fish size, a 10-fish per 
person possession limit, and an open season of June 6 through September 
26.

                               Table 2--2010 Scup Recreational Management Measures
----------------------------------------------------------------------------------------------------------------
                                                            Minimum Fish
                                                                Size        Possession
                         Fishery                         ------------------    Limit         Fishing Season
                                                          inches     cm
----------------------------------------------------------------------------------------------------------------
Scup                                                       10.5    26.674    10 fish    June 6 through September
                                                                                                             26
----------------------------------------------------------------------------------------------------------------

    The scup fishery in state waters will be managed under a regional 
conservation equivalency system developed by the Commission over the 
last 8 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 2010. In accordance with Sec.  648.4(b)(1)(i), when 
Federal, state, and local requirements differ, federally permitted scup 
vessels are required to adhere to the most restrictive requirement 
regardless of where the vessel fishes.

Black Sea Bass Management Measures

    This rule implements the black sea bass measures adopted by the 
Commission for 2010: A 12.5-in (31.75-cm) minimum fish size, a 25-fish 
per person possession limit and fishing seasons from May 22-October 11 
and November 1-December 31.

Changes from the Proposed Rule

    NMFS had proposed in the April 27, 2010 (75 FR 22087), rule to 
implement the Council-preferred measures (12.5-in (31.75-cm) minimum 
fish size, 25-fish possession limit, and fishing seasons of May 22-
August 8 and September 4-October 4) for the 2010 black sea bass 
recreational fishery. NMFS anticipated additional data that might 
permit liberalization of the 2010 measures would become available in 
the interim between publication of the proposed and final rules. These 
data, from the

[[Page 39172]]

Marine Recreational Fisheries Statistics Survey (MRFSS), became 
available in late April.
    The final MRFSS data indicated that 2009 landings of black sea bass 
were 2.31 million lb (1,048 mt). Prior to the release of these data, 
black sea bass landing estimates were used for the months of September 
and October 2009. At the time of the proposed rule, the best available 
information, which included estimates for September and October, 
indicated that 2009 recreational black sea bass landings were 
approximately 3.31 million lb (1,501 mt). The Council's originally 
preferred measures contained in the proposed rule would have reduced 
2010 landings by 44 percent from 2009 levels, consistent with the 
assumption that 2009 landings were 3.31 million lb (1,501 mt). However, 
given the final 2009 landings data, a 21-percent reduction in 2010 
landings from 2009 levels is necessary.
    Many had expressed concern during the management measures 
development process that actual landings from the 2-month time period 
in 2009 would be significantly different from any generated estimates, 
owing in part to the 108-day closure of the black sea bass recreational 
fishery in the Federal waters of the EEZ that was implemented by NMFS 
effective October 5, 2009 (74 FR 51092). Because of the timing for 
Council and Commission meetings and the proposed rule 30 day comment 
period, NMFS provided a contextual framework for the likelihood that 
additional data would be available for analysis and solicited specific 
comments on alternative management measures in the proposed rule (75 FR 
22087; April 27, 2010).
    The Commission had an opportunity to analyze the final 2009 MRIP 
landings data prior to its May 2010 meeting. During this meeting, the 
Commission adopted the measures now implemented through this final 
rule. These measures are projected to reduce landings by 26 percent 
from 2009 levels. The Commission adopted measures that were slightly 
more precautionary (i.e., greater than a 21-percent reduction in 2010 
landings from 2009 levels) to allow for a reasonable conservation 
buffer to account for management uncertainty in the harvest estimates 
and the effectiveness of the regulations. The Council, as well as 
members of the public and recreational fishing advocacy groups, 
provided written comment fully supporting implementation of the less 
restrictive management measures adopted by the Commission. NMFS finds 
the measures make use of the best available information in as timely a 
fashion as the development, review, and implementation process will 
permit. In addition, NMFS finds that the measures implemented in this 
final rule provide some buffer to offset management-related uncertainty 
and mitigate foregone recreational opportunity, thereby reducing 
adverse socio-economic impacts. Thus, NMFS is implementing these 
measures for the 2010 fishing season, even though they were not 
contained in the proposed rule.

                          Table 3--2010 Black Sea Bass Recreational Management Measures
----------------------------------------------------------------------------------------------------------------
                                                            Minimum Fish
                                                                Size        Possession
                         Fishery                         ------------------    Limit         Fishing Season
                                                          inches     cm
----------------------------------------------------------------------------------------------------------------
Black Sea Bass                                             12.5     31.75    25 fish      May 22-October 11 and
                                                                                         November 1-December 31
----------------------------------------------------------------------------------------------------------------

Comments and Responses

    Eight comment letters were received regarding the proposed 
recreational management measures. The Commission's Black Sea Bass 
Management Board provided the revised 2010 black sea bass measures 
adopted for state waters as comments on the proposed rule and 
recommended similar measures be adopted for Federal waters. Five 
comment letters, including one from the Council, spoke in support of 
the Commission's revised 2010 black sea bass measures and urged NMFS to 
adopt similar measures for Federal waters. For clarity, NMFS is 
implementing, through this rule, the identical black sea bass measures 
adopted by the Commission and with the full support of the Council for 
the 2010 black sea bass recreational fishery in Federal waters.
    One recreational fishery advocacy group wrote in favor of the 
summer flounder conservation equivalency system being implemented 
through this rule.
    Comments that require responses are addressed below. Similar 
comments were consolidated for NMFS's responses:
    Comment 1: One commenter asked why commercial summer flounder 
fishermen can keep fish smaller than most recreational minimum fish 
sizes implemented by states through conservation equivalency. This 
commenter stated that most large summer flounder are female and the 
utilization of high recreational minimum fish sizes will catch a 
disproportionately high number of female fish and could negatively 
impact stock rebuilding efforts.
    Response: The issue of different minimum fish sizes between 
commercial and recreational fisheries is often raised. Minimum fish 
sizes for both sectors are implemented by NMFS based on recommendations 
received from the Council. In regards to summer flounder, the minimum 
commercial fish size has been set at 14 in (35.56 cm) since the late 
1990s. The minimum commercial size was established following mesh size 
selectivity studies conducted for implementation of the original Summer 
Flounder FMP. These mesh studies considered the capabilities of certain 
mesh sizes to not encounter fish of certain sizes.
    The Council has recommended the 14-in (35.56-cm) minimum commercial 
summer flounder size to address National Standard 9 of the Magnuson-
Stevens Act. National Standard 9 requires that conservation and 
management measures shall, to the extent practicable, minimize bycatch 
and, when bycatch cannot be avoided, minimize the mortality of such 
bycatch. Commercial fishing conducted with bottom tending mobile gear, 
such as trawl nets, is less discriminating than recreational hook-and-
line fishing gear. Thus, commercial fishing operations tend to capture 
a wider size range and higher numbers of summer flounder than do 
recreational fishermen. The 14-in (35.56-cm) size strikes a balance 
between converting potential discards to landings and ensuring summer 
flounder have an opportunity to spawn before becoming legal minimum 
commercial

[[Page 39173]]

size. The current mesh size required for most summer flounder trawl 
gear is 5.5 in (13.97 cm) and is engineered to catch fish 14 in (35.56 
cm) and larger.
    Recreational minimum fish size has been used as a tool to constrain 
landings in the recreational fishery. Recreationally captured summer 
flounder have a lower associated mortality than do those captured by 
bottom-tending mobile commercial gear such as trawl nets and scallop 
dredges. Eighty percent of commercially discarded summer flounder are 
assumed to be dead or will die after release. By contrast, the most 
recent assessment for summer flounder used recent research information 
that indicated the mortality rate for recreationally caught and 
released summer flounder was 10 percent.
    The concept that recreational fisheries target larger, typically 
female fish has been discussed and examined in recent stock 
assessments. Additional research on stock sex ratios, natural and 
fishing mortality by sex and size, and potentially different growth and 
maturity rates by sex needs further examination for definitive 
conclusions on potential impacts of the management strategy that has 
been employed; however, current stock projections indicate that the 
summer flounder stock will be rebuilt prior to the January 1, 2013, 
rebuilding deadline.
    Comment 2: One comment suggested that summer flounder management 
measures should be two fish in the 14 to18-in (35.56 to 45.72-cm) size 
range and four fish over 18 in (45.72 cm).
    Response: The Council-conducted analysis for the 2010 summer 
flounder recreational management measure coastwide alternatives 
indicated a 19-in (48.26-cm) minimum fish size, 2-fish possession 
limit, and coastwide season from May 1 to September 30 was predicted to 
constrain 2010 landings to the 8.85-million-lb (3,896-mt) recreational 
harvest limit. The commenter's recommended management measures are 
substantially more liberal than this, the most liberal coastwide 
measures analyzed and considered by the Council. Thus, the commenter's 
suggested measures would likely result in landings well above the 
recreational harvest limit. Because such measures would not adequately 
constrain the 2010 recreational summer flounder fishery and would 
likely exceed the established recreational harvest limit, NMFS finds 
that such measures would be inconsistent with the goals and objectives 
of the FMP and the Magnuson-Stevens Act.
    NMFS is implementing, through this final rule, conservation 
equivalency wherein individual state measures approved through the 
Commission process are found to be equivalent to the coastwide 
measures. In the conservation equivalency process, individual states 
have the ability to modify the minimum fish size, possession limits, 
and fishing season consistent with Commission-imposed requirements 
before NMFS ultimately elects to implement conservation equivalency or 
coastwide measures for the fishery. States have some ability to adjust 
management measures in a manner that best suits the needs of the 
anglers and fisheries prosecuted in the waters adjacent to their 
respective state. Some states have developed and implemented, through 
the Commission process, minimum fish sizes similar to those suggested 
by the commenter. NMFS has, in turn, adopted through this rule, 
conservation equivalency for Federal waters.
    Comment 3: One recreational fishery angling group opposed the 
proposed scup recreational management measures stating that (1) the 
scup stock is rebuilt, (2) annual catch limits (ACLs) and 
accountability measures (AMs) are not yet a statutory requirement for 
the scup fishery, (3) that the 10-fish per person possession limit will 
dissuade potential party/charter anglers from booking trips, and (4) 
that there is no conservation or legal requirement to reduce 
recreational scup landings for 2010. The commenter did not suggest any 
alternative measures and did acknowledge that a very small percentage 
of annual recreational scup landings occur in Federally-managed waters 
under the jurisdiction of NMFS.
    Response: In response, NMFS agrees that the best available 
scientific information does indicate that the scup stock has been 
rebuilt, thereby satisfying the rebuilding requirements for the 
previously overfished stock.
    NMFS notified the Council on April 22, 2009, that the results of a 
2008 externally peer reviewed Data Poor Stocks Working Group (DPSWG) 
assessment of scup had found that the stock had achieved and exceeded 
the required rebuilding biomass target. In that same correspondence, 
NMFS further relayed that the peer-review panel from the DPSWG 
indicated that the assessment contained a high degree of uncertainty. 
In its final report, the peer review panel recommended:
    ''...that rapid increases in quota to meet the revised MSY 
[Maximum Sustained Yield] would be unwarranted given uncertainties 
in recent [scup] recruitments. A more gradual increase in quotas is 
a preferred approach reflective of the uncertainty in the [scup] 
model estimates and stock status.''
    The Council's SSC has adhered to the peer review panel's 
recommendation in setting scup catch levels. For 2010, the SSC 
recommended a 10-percent increase in Total Allowable Catch (TAC) as the 
ABC level from the 2009 levels. The recreational harvest limit is a 
derivative of the overall TAC.
    While the perception of the scup stock has changed and is more 
favorable than recent years and the statutory requirements for stock 
rebuilding have been satisfied, the catch recommendations from the 
Council's scientific advisory body, the SSC, has remained precautionary 
in light of uncertainty associated with the revised stock assessment. 
NMFS, in turn, has implemented the Council's recommendation for catch 
levels as guided by the SSC's ABC recommendation. The SSC and Council's 
Scup Monitoring Committee will review updated stock assessment 
information in June 2010 before making catch level recommendation for 
the 2011 fishing year.
    While the requirement for stocks not subject to overfishing to have 
in place ACLs and AMs, as required by the Magnuson-Stevens Act, does 
not take effect until 2011, the Council has put into practice the 
utilization of its SSC for catch level advice. Utilization of the SSC 
in catch level recommendations did not result in a delayed 
implementation phase-in period when the Magnuson-Stevens Act was 
reauthorized in 2006. The SSC has been involved in making ABC 
recommendations since 2008 for the 2009 fishing year.
    The SSC brings to bear considerable scientific expertise in making 
catch level recommendations. As such, the ABC recommended by the SSC 
sets the standard for scientifically justifiable catch levels. For the 
Council or NMFS to deviate from the SSC-recommended ABC would require 
sufficient justification to explain why an alternate catch level was 
the more appropriate and a better use of the best available scientific 
information. In the case of scup, the SSC expressed reservations about 
the information provided by the most recent stock assessment and 
recommended an ABC that, relative to the estimated total biomass of 
scup, is risk averse.
    The Council may further reduce the ABC recommended by the SSC for 
additional considerations, consistent with the requirements of National 
Standard 1 of the Magnuson-Stevens Act to achieve Optimal Yield (OY) on 
a continuing basis. NMFS provided a detailed response to similar 
comments that ACLs and AMs are not yet requirements and that the 2010 
scup catch level had been set too low to achieve OY on a continuing 
basis in the

[[Page 39174]]

2010 specifications final rule (74 FR 67978, December 22, 2009). Those 
responses are not repeated here, but are instead incorporated by 
reference. NMFS acknowledges the commenter's concern that the scup 
stock status and catch level recommendations appear to be at odds with 
one another; however, as explained, the SSC and Council have taken a 
precautionary approach in managing the scup stock, consistent with 
assessment-related advice to do so. This approach continues to be 
supported by NMFS.
    As part of the regulatory impact review and general economic impact 
analyses performed for the 2010 recreational management measures, the 
Council provided an analysis of the potential impacts of a 10-fish per 
person possession limit for scup. The analysis concluded that up to 
2.24 percent of party/charter vessels could be impacted by the 10-fish 
possession limit. While this would suggest that the impact is low, the 
analysis indicated that predicting year-to-year angler behavior in 
response to numerous influential factors, including regulatory changes, 
is difficult. The Council performed an analysis of all potential 
combination of summer flounder, scup, and black sea bass alternatives 
with a hypothetical 25- and 50-percent reduction in fishing trips. The 
range of impacts varies considerably from a low of $399 per vessel in 
Delaware to up to $44,000 per vessel in North Carolina. These are total 
impacts, inclusive of all potential changes for summer flounder, scup, 
and black sea bass management measures and up to a 50-percent reduction 
in angler trips.
    Furthermore, the majority of scup party/charter landings occur in 
state waters and may occur on vessels without Federal permits. In such 
situations, the data necessary to quantify potential impacts are 
unavailable as permit data are utilized as the basis for impact 
assessment. See the Council's EA/RIR/IRFA document for additional 
detail; information on obtaining a copy of the document is provided 
under the ADDRESSES section of the preamble.
    Given the minor magnitude of recreational scup fishing in Federal 
waters, the economic impacts associated with the implemented measures 
are expected to be equally minor relative to the entire scup 
recreational fishery.
    Under the recreational fishery management methods utilized by the 
Council's Scup Monitoring Committee to develop measures designed to 
constrain recreational landings to the recreational harvest limit, the 
level of landings in the preceding year are used as a basis for 
calculating the effectiveness of measures for the upcoming fishing year 
relative to the catch level. More simply stated, when landings in the 
previous year exceed the recreational harvest limit for the current 
year, measures are adjusted. The amount of adjustment necessary is 
dependent on the level of recreational landings that are allowed under 
the recreational harvest limit. In years where the recreational harvest 
limit increases from the previous year, it may not be necessary to 
adjust measures even if the previous year recreational harvest limit 
had been exceeded if the amount of the overage is less than the 
increase in the limit. This process occurs regardless of stock status 
or other imposed statutory requirements. The underlying reason for such 
adjustments is to constrain the recreational sector landings within the 
recreational harvest limit which, in turn, is part of the total fishing 
mortality permitted for the stock in any given year. As previously 
discussed, the annual level of fishing mortality established for the 
stock is established through a Council process that includes a 
scientifically-based recommendation for ABC from the SSC. The entirety 
of the catch level process considers both scientific and management 
uncertainty and other potential issues and is designed to ensure that 
the stock is not overfished. For scup, while the stock status would 
suggest that overfishing is unlikely, the DPSWG peer review panel and 
SSC have indicated that sufficient uncertainty exists within the new 
assessment and catch levels should proceed cautiously rather than be 
increased rapidly.
    Comment 4: A recreational fishing advocacy group wrote in support 
of extending the black sea bass fishing season but objected to the 
Commission's approach of providing additional buffering to account for 
management uncertainty. The commenters state that such buffering is 
arbitrary and inconsistent with science-based management. Furthermore, 
the commenter states that there is insufficient technical information 
in the Commission's decision to explain the additional buffer.
    Response: The additional buffer the comment refers to is the 
percent reduction in 2010 black sea bass landings from 2009 levels 
required to constrain recreational harvest below the established RHL. 
Based on the 2009 landings data and the 2010 black sea bass 
recreational harvest limit, a minimum of a 21.4-percent reduction in 
landings is required to ensure that landings do not exceed the 
established limit. However, in selecting measures for 2010, the 
Commission elected to adopt measures (i.e., minimum fish size, 
possession limit, and fishing season) that provide an estimated 26-
percent reduction in landings. In their letter to NMFS recommending 
adoption of identical measures for Federal waters, the Commission's 
Black Sea Bass Management Board indicated that the additional 4.6-
percent reduction in landings was
    selected to, ``allow for a reasonable conservation buffer to 
account for management uncertainty in the harvest estimates and the 
effectiveness of the regulations.''
    NMFS has determined that this in an appropriate application of 
management uncertainty, consistent with the revised National Standard 1 
Guidance (NS 1 Guidance (74 FR 3178; January 16, 2009)). NMFS is 
implementing, through this rule, measures identical to the Commission-
adopted black sea bass recreational management measures because the 
additional offset in landings provides a greater likelihood of 
constraining landings below the established 2010 recreational harvest 
limit. These measures were fully supported and also recommended by the 
Council, which also agreed that some buffering was advisable given the 
uncertainty of harvest estimates and unknown effectiveness of the 
regulations being implemented. NMFS does not find the application of an 
additional 4.6-percent calculated reduction in landings as arbitrary; 
rather, it represents a substantive attempt by the Commission and 
Council to quantify and buffer against issues that led the 2009 black 
sea bass fishery to exceed the established recreational harvest limit 
for that year. In the NS 1 Guidance, NMFS recommends that in situations 
where both scientific and management-related uncertainty exist for a 
particular fishery, both should be addressed. While these requirements 
are not yet effective for the FMP, the action taken by the Commission, 
supported by the Council, and implemented by NMFS is consistent with 
the tenants of the NS 1 Guidance. The additional offset is not, as the 
commenter suggests, an offset for scientific uncertainty. Rather, it is 
as previously indicated a buffer to account for management uncertainty 
designed to help ensure that 2010 recreational black sea bass landings 
do not exceed the established recreational harvest limit.
    Comment 5: A recreational fishing advocacy group supported 
including January and February in the black sea bass fishing season in 
addition to the May 22-October 11 and November 1-December 31 season 
implemented by

[[Page 39175]]

this rule. The comment states that Fishing Vessel Trip Reports (VTRs) 
provided by charter/party vessels would indicate that black sea bass 
landings during these months are minimal and that closing the season in 
January and February provides no contribution to the calculated 
reduction in landings.
    Response: NMFS disagrees with the comment that January and February 
should be open for the 2010 fishing season. What is at issue is 
actually the 2011 fishing year. January and February 2010 have already 
passed; however, the rulemaking for 2011 black sea bass management 
measures begins with a Council meeting in December 2010. The 2010 black 
sea bass management measures remain effective until superseded by 
revised measures. If the Council were to recommend a 2011 black sea 
bass fishing season that included January and February, there would be 
insufficient time to implement such a season through the rulemaking 
process.
    There is a substantial issue that if NMFS opened Federal waters in 
January and February, effectively opening those months retroactively 
for 2010 and for 2011 for the reasons previously explained, state 
waters would not be open unless the Commission implemented comparable 
measures. In a situation such as this wherein Federal waters are open 
but state waters are closed, Federally permitted vessels are required 
to adhere to the more restrictive set of measures. The net effect of 
different fishing seasons in this instance, barring comparable 
Commission action, would prohibit Federally permitted vessels from 
fishing in either state or Federal waters.
    NMFS has analyzed party/charter VTR data from 2000-2009. These data 
indicate that 58 unique vessels reported landing or discarding 
recreationally captured black sea bass within those years. Reported 
landings totaled 260,442 lb (118 mt) and reported discards totaled 
26,073 lb (12 mt) for the time period, averaging 26,044 landed lb per 
year (12 mt). The average annual landings are less than 1.5 percent of 
the 2010 black sea bass recreational harvest limit. The commenters 
suggest that landings of this magnitude be considered de minimis and 
the fishery opened. No de minimis provision is included in the FMP and 
all mortality on the stock must be considered when establishing 
recreational management measures. In addition, no recommendation to 
open January and February was forwarded by either the Council or 
Commission.
    VTRs are wholly self-reported by party and charter vessel operators 
and, unlike commercial fisheries which have vessel-by-vessel landing 
data to validate the self-reported information, recreational party/
charter vessels have no independent data validation mechanism. The For-
Hire Survey (FHS) component of MRFSS does not yield a vessel-by-vessel 
independent assessment that is analogous to commercial landing 
weighouts. As a result, party/charter VTRs are not utilized in stock 
assessments or as a data source for management decisionmaking. They are 
informative to verify that there is indeed a January and February black 
sea bass fishery by Federally permitted vessels and the magnitude of 
the fishery would appear to be small. However, without a means to 
independently verify the information contained in the VTRs, there is no 
way to know how representative or accurate the reported data might be.
    The reference to ``no effective reduction'' made by the commenter 
addresses a sampling deficiency in the current MRFSS design. Landings 
in MRFSS Wave 1 (January-February) are not monitored on a coastwide 
basis. However, pilot projects are underway to address this deficiency 
by sampling within Wave 1 as well as pilot studies to examine the 
efficacy of estimation procedures for when only small sample sizes can 
be obtained by the MRFSS survey. Both of these pilot projects may lead 
to additional fishery-independent information regarding Northeast 
Region recreational fishing in January and February. Because no 
sampling currently occurs, when calculating reduction or liberalization 
of landings for an upcoming fishing year is performed, the disposition 
of fishing in January and February contribute no net effect regardless 
of if the fishery is open or closed because of the lack of estimates 
for that time period.
    Because the FMP does not provide for a de minimis season and there 
are clearly some magnitude of landings that occur in January and 
February, NMFS is disinclined to include those months in the 2010 black 
sea bass fishing season. The result of so doing would effectively 
ensure that those months would be open in 2011. No such recommendation 
was forwarded by either the Commission or Council. There is also the 
previously mentioned issue about creating a different set of measures 
for state and Federal waters.
    Comment 6: One comment stated that NMFS uses MRFSS data 
inconsistently: Using the data to indicate overages and impose more 
restrictive measures, but dismissing the data when liberalization of 
measures can be implemented.
    Response: NMFS has taken a consistent approach to utilization of 
MRFSS data as the best available information on recreational landings 
and effort. Through this rule, NMFS is implementing liberalized 
measures for black sea bass, consistent with the updated MRFSS data 
that indicate a lower percent reduction in 2010 landings are needed 
relative to 2009.

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
final rule implementing the 2010 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 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 
or the economic impacts of the rule more generally. As outlined in the 
preamble, the black sea bass measures implemented by this rule were 
changed from those previously proposed. The change in measures was a 
direct result of comments received from the Commission, Council, and 
interested public.

[[Page 39176]]

Description and Estimate of Number of Small Entities to Which This Rule 
Will Apply

    The Council estimated that the management measures could affect any 
of the 948 vessels possessing a Federal charter/party permit for summer 
flounder, scup, and/or black sea bass in 2009, the most recent year for 
which complete permit data are available. However, only 328 vessels 
reported active participation in the recreational summer flounder, 
scup, and/or black sea bass fisheries in 2008, the most recent year for 
which complete fishing vessel trip reports (i.e., logbooks) are 
available.

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 2009 fishing season. The no-action measures were analyzed in 
Alternative 2 for each species in the Council's EA/RIR/IRFA.
    For summer flounder, the no-action (coastwide) alternative of a 
19.5-inch (49.53-cm) minimum fish size, a two-fish possession limit, 
and a May 1-September 30 fishing season would achieve the mortality 
objectives required but would be more restrictive than necessary for 
most states.
    The no-action alternative 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, is not expected 
to reduce landings from 2009 levels. If scup Alternative 2 were adopted 
for 2010, landings would be expected to be in the 4.0-million-lb 
(1,814-mt) range, thereby exceeding the 3.01-million-lb (1,366-mt) 
recreational harvest limit. This is inconsistent with the objectives of 
the FMP.
    The no-action alternative for black sea bass (a 12.5-in (31.75-cm) 
minimum fish size, a 25-fish possession limit, and no closed fishing 
season) would result landings that exceed the 1.83-million lb (830-mt) 
recreational harvest limit for 2010 and, therefore, cannot be continued 
for the 2010 fishing season.
    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.
    The 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 2010 conservation objectives for the recreational fishery, 
i.e., analysis indicated that implementation of either would constrain 
recreational landings within the 2010 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: Some Council and 
Commission members objected to the use of conservation equivalency. In 
fact, the State of New York filed litigation seeking relief from 
conservation equivalency implemented for both the 2008 and 2009 
recreational summer flounder fisheries. The litigation for those cases, 
State of New York et al. v. Locke et al. Civil Action Nos. 08-cv-2503 
and 09-cv-3196, remain unresolved by the U.S. District Court Eastern 
District of New York.
    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.
    The additional metric for consideration applicable to the FRFA is 
examination of the economic impacts of the alternatives on small 
entities consistent with the stated objectives of applicable statutes. 
As previously stated, both conservation equivalency (alternative 1) and 
coastwide measures (alternative 2) are projected to achieve the 
conservation objectives in place for the 2010 summer flounder 
recreational fishery. However, the economic impacts of the two 
alternatives are not equal: 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.
    Quantitative analysis of the economic impacts associated with 
conservation equivalency measures are not available. Because the 
development of the individual state measures occurs concurrent to the 
NMFS rulemaking process to ensure timely implementation of final 
measures for the 2010 recreational fishery, the specific measures 
implemented by states are not available for economic impact analyses. 
Instead, qualitative methods are utilized. The Council analysis 
concluded, and NMFS agrees, that conservation equivalency is expected 
to minimize impacts on small entities because individual states can 
develop specific summer flounder management measures that allow the 
fishery to operate during each state's critical fishing periods while 
still achieving conservation goals. To be clear, there are individual 
states whose conservation equivalency measures may have a more adverse 
impact to some small entities, dependent on the restrictions imposed by 
the Commission, than would coastwide measures. New York stands out as 
such a state. However, the one-size-fits-all approach of coastwide 
measures would impact a broader distribution of states and small 
entities.
    NMFS is implementing the Council and Commission's recommended 
state-by-state conservation equivalency measures because: (1) NMFS 
finds no compelling reason to disapprove the Council and Commission's 
recommended 2010 management system, as the management measures 
contained in conservation equivalency are projected to provide the 
necessary restriction on recreational landings to prevent the 
recreational harvest limit from being exceeded; and (2) the net 
economic impact to small entities on a

[[Page 39177]]

coastwide basis are expected to be mitigated, to the extent 
practicable, for a much larger percentage of small entities. Data 
provided by the Council indicates that 328 federally permitted party/
charter vessels landed some combination of summer flounder, scup, and 
black sea bass in 2008, the most recent year of available data. Within 
this total, 49 vessels, or 15 percent, were from New York. By 
inference, 85 percent of the small entities engaged in recreational 
fishing would be impacted less by the implementation of conservation 
equivalency, assuming that the impacts to New York small entities are 
indeed greater under conservation equivalency.
    Scup alternatives. The options available for scup recreational 
fisheries management are constrained to a suite of minimum fish size, 
possession limit, and fishing season that achieves the annual 
conservation objective expressed through a recreational harvest limit 
on landings. As outlined in the preamble, the individual states have 
elected to implement a state-waters conservation equivalency system for 
the 2010 scup recreational fishery that has no comparable regulations 
for use in Federal waters. The Commission-adopted measures are not 
expected to constrain landings to the 2010 scup recreational harvest 
limit. Thus, the conservation objectives and the recreational harvest 
limit are likely to be compromised regardless of action taken for 
Federal waters. Very little of the scup recreational fishery occurs in 
Federal waters. Rather than close Federal waters to scup recreational 
fishing, NMFS is implementing the following measures: A 10.5-inch 
(26.67-cm) minimum fish size; a 10-fish per person possession limit; 
and an open season of June 6-September 26. These measures were not the 
most conservative proposed by the Council as they are projected to 
reduce 2010 landings by 29 percent from 2009 levels if comparable 
measures had been implemented in state waters.
    Implementation of these measures offers an alternative to outright 
closure of Federal waters wherein all scup encountered would be 
required to be discarded. Instead, the limited amount of scup 
recreational fishing that occurs in Federal waters will have some 
overlap with the measures implemented for state waters by the 
Commission and fish that would have been discarded may be landed in 
limited numbers. These minor landings are not expected to add a 
substantial amount of recreational fishing mortality to the stock in 
2010, nor is overfishing expected to occur as a result of either the 
Federal or state measures implemented for 2010. Estimates from MRFSS 
indicate that the amount of scup recreationally harvested in Federal 
waters is typically 5 percent or less of the total annual take.
    The measures of alternative 1 were also considered by NMFS. This 
would have resulted in an 11-inch (27.94-cm) minimum fish size, a 
longer season, and identical possession limit when compared to 
alternative 3. These measures did not synchronize well with the 
Commission measures and, while more conservative--achieving a projected 
35 percent reduction in landings from 2009 levels if similar measures 
had been enacted in state waters--NMFS found that the minimal 
conservation benefit was outweighed by the lack of consistency with 
measures adopted for state waters. The impacts to charter and party 
vessels were similar between alternative 1 and 3 in the Council's 
analysis. Alternative 2 was not considered for implementation as it was 
not expected to effect any reduction in 2010 scup landing levels.
    Black sea bass alternatives. Similar to both summer flounder and 
scup, the options available for black sea bass recreational management 
measures are constrained to selecting a suite of minimum fish size, 
possession limit, and fishing season measures that achieve the annual 
conservation objectives. In this case, this final rule is implementing 
measures that differ from those originally proposed. This rule 
implements the measures of alternative 4 (modified) contained in the 
EA/RIR/IRFA addendum: A 12.5-inch (31.75-cm) minimum fish size; a 25-
fish possession limit; and May 22-October 11 and November 1-December 31 
fishing seasons. This alternative provides the lowest associated 
economic impacts to small entities. Alternatives 1, 3, and 4 
(unmodified) were projected to achieve the conservation objectives for 
the 2010 black sea bass fishery; however, given the evolution of 
increasingly improved data available during the recreational management 
measures development, these alternatives are now more conservative than 
necessary relative to the conservation objectives and have higher 
associated economic impacts than the measure being implemented through 
this rule.

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: July 1, 2010
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.  648.103, 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 19.5 inch (49.53 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
3. 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 2010 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),

[[Page 39178]]

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 - May 1 through September 30; minimum size - 21.5 inches (54.61 
cm); and possession limit - two fish.

0
4. In Sec.  648.122, paragraph (g) is revised to read as follows:


Sec.  648.122  Season and area restrictions.

* * * * *
    (g) Time restrictions. Vessels that are not eligible for a 
moratorium permit under Sec.  648.4(a)(6), and fishermen subject to the 
possession limit specified in Sec.  648.125(a), may not possess scup, 
except from June 6 through September 27. This time period may be 
adjusted pursuant to the procedures in Sec.  648.120.

0
5. In Sec.  648.125, the first sentence of paragraph (a) is revised to 
read as follows:


Sec.  648.122  Possession limit.

    (a) No person shall possess more than 10 scup in, or harvested 
from, the EEZ unless that person is the owner or operator of a fishing 
vessel issued a scup moratorium permit, or is issued a scup dealer 
permit.***
* * * * *

0
6. Section 648.142 is revised to read as follows:


Sec.  648.142  Time restrictions.

    Vessels that are not eligible for a moratorium permit under Sec.  
648.4(a)(7), and fishermen subject to the possession limit specified in 
Sec.  648.145(a), may possess black sea bass from May 22 through 
October 11 and November 1 through December 31, unless this time period 
is adjusted pursuant to the procedures in Sec.  648.140.
[FR Doc. 2010-16651 Filed 7-7-10; 8:45 am]
BILLING CODE 3510-22-S