[Federal Register Volume 76, Number 126 (Thursday, June 30, 2011)]
[Rules and Regulations]
[Pages 38307-38313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16517]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110222150-1280-02]
RIN 0648-BA92


Fisheries of the Northeastern United States; Recreational 
Management Measures for the Summer Flounder, Scup, and Black Sea Bass 
Fisheries; 2011 Scup Specifications; Fishing Year 2011

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

ACTION: Final rule.

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SUMMARY: NMFS implements an increase to the scup commercial and 
recreational landing allowances for 2011 (specifications) and 
management measures for the 2011 summer flounder, scup, and black sea 
bass recreational fisheries in Federal waters. 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 the scup increase 
is to enable greater commercial and recreational harvest opportunities 
while preventing overfishing on the scup stock. Recreational management 
measures are similarly intended to ensure that overfishing the summer 
flounder, scup, and black sea bass resources in 2011 is unlikely to 
occur.

DATES: Effective August 1, 2011.

ADDRESSES: Copies of the scup harvest level increase Supplement 
Environmental Assessment (SEA) to the 2011 specifications and the 
recreational management measures document, including the Environmental 
Assessment, Regulatory Impact Review, and Initial Regulatory 
Flexibility Analysis (EA/RIR/IRFA) and other supporting documents for 
both the scup specifications increase and the recreational management 
measures are available from Dr. Christopher M. Moore, Executive 
Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 North 
State Street, Dover, DE 19901. These documents are also accessible via 
the Internet at http://www.nero.noaa.gov.

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

SUPPLEMENTARY INFORMATION:

General 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 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 Federal permits for summer 
flounder, scup, and/or black sea bass, regardless of where they fish.
    A proposed rule to implement the 2011 scup specifications increase 
and Federal recreational measures for the 2011 summer flounder, scup, 
and black sea bass fisheries was published on April 21, 2011 (76 FR 
22350). Additional background and information is provided in that rule 
and is not repeated here.

2011 Scup Specifications Increase

    This rule implements the scup increase proposed by NMFS in the 
April 21, 2011, proposed rule: A Total Allowable Catch (TAC) of 31.92 
million lb (14,479 mt), increased from the current TAC of 24.10 million 
lb (10,932 mt); a Total Allowable Landings (TAL) of 26.50 million lb 
(12,020 mt), increased from 20.0 million lb (9,072 mt); a commercial 
quota of 20.36 million lb (9,235 mt), increased from 15.29 million lb 
(6,936 mt); and a recreational harvest limit of 5.74 million lb (2,604 
mt), increased from 4.30 million lb (1,956 mt). Because the 2011 
research set-aside (RSA) of 396,500 lb (180 mt) has already been 
awarded for scup, no change to the RSA level will occur as a result of 
the increased scup specifications.
    Table 1 contains the scup commercial quota period information that 
results from the scup specification increase. Information on the amount 
of unused Winter I quota to be rolled over to Winter II, including any 
change to Winter II possession limits that results from the transfer, 
will be published in the Federal Register in July 2011.

[[Page 38308]]



                                    Table 1--Final Revised Commercial Scup Quota Allocations for 2011 by Quota Period
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Total allowable catch      Estimated discards           Initial quota        Adjusted quota less RSA
            Quota period               Percent   -------------------------------------------------------------------------------------------------------
                                        share          lb           mt           lb           mt           lb           mt           lb           mt
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter I...........................        45.11   11,231,307        5,094    1,907,070          865    9,324,237        4,229    9,184,725        4,166
Summer.............................        38.95    9,697,615        4,399    1,646,650          747    8,050,965        3,652    7,930,504        3,597
Winter II..........................        15.94    3,968,677        1,800      673,879          306    3,294,798        1,494    3,245,500        1,472
                                    --------------------------------------------------------------------------------------------------------------------
    Total..........................        100.0   24,897,600       11,293    4,227,600        1,918   20,670,000        9,376   20,360,730        9,235
--------------------------------------------------------------------------------------------------------------------------------------------------------

2011 Recreational Management Measures

Background

    Additional discussion on the development of the recreational 
management measures appeared in the preamble of the proposed rule and 
is not repeated here.
    The 2011 coastwide recreational harvest limits were previously 
established by rulemaking conducted in late 2010 (75 FR 81498; December 
28, 2010). The 2011 recreational harvest limits established by the 
December 28, 2010, final rule are as follows: Summer flounder, 11.58 
million lb (5,254 mt); scup, 4.3 million lb (1,956 mt); and black sea 
bass, 1.84 million lb (835 mt). However, this rule implements an 
increase to the scup specifications, which increases the recreational 
harvest limit to 5.74 million lb (2,604 mt). Recreational harvest 
limits are the target objectives or ``quotas'' established for the 
summer flounder, scup, and black sea bass recreational fisheries. The 
management measures (i.e., minimum fish size requirements, angler 
possession limits, and fishing seasons) established by this rule are 
all designed to ensure that recreational landings do not exceed the 
recreational harvest limits.
    NMFS is implementing, through this rule, management measures to 
apply in the Federal waters of the EEZ and to all federally permitted 
party/charter vessels with applicable summer flounder, scup, and/or 
black sea bass permits regardless of where they fish during the 2011 
fishing year. The management measures (i.e., minimum fish size 
requirements, angler possession limits, and fishing seasons) 
established by this rule are all designed to ensure that recreational 
landings do not exceed the recreational harvest limits. The management 
measures established by this rule are as follows: For summer flounder, 
use of state-by-state conservation equivalency measures, which is the 
status quo management system; for scup, a 10.5-inch (26.67-cm) minimum 
fish size, a 10-fish per person possession limit, and an open season of 
June 6 through September 26, which are the status quo measures; and, 
for black sea bass, 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, which are also the status quo measures. 
More detail on these proposed measures is provided in the following 
sections.
    Federal permit holders are reminded that, as a condition of their 
Federal permit, they must abide by the Federal measures, even if 
fishing in state waters. In addition, in instances where the state-
implemented measures are different than the Federal measures, federally 
permitted vessels must adhere to the more restrictive of the two 
measures. This will be applicable for both the 2011 scup and black sea 
bass recreational fisheries.
    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 Recreational Management Measures

    NMFS is implementing, through this rule, conservation equivalency 
as the management approach for use in the 2011 summer flounder 
recreational fishery. NMFS implemented Framework Adjustment 2 to the 
FMP on July 29, 2001 (66 FR 36208), to permit the use of conservation 
equivalency to manage the recreational summer flounder fishery. 
Conservation equivalency allows each state to establish its own 
recreational management measures to achieve its state harvest limit 
partitioned from the coastwide recreational harvest limit by the 
Commission. The combined effect of all of the states' management 
measures achieves the same level of conservation as would Federal 
coastwide measures, hence the term conservation equivalency. This means 
that minimum fish sizes, possession limits, and fishing seasons 
developed and adopted by the individual states from MA to NC will be 
utilized as the Federal water measures for 2011.
    The Commission notified the NMFS Northeast Regional Administrator 
by letter dated May 19, 2011, that the 2011 summer flounder 
recreational fishery management programs (i.e., minimum fish size, 
possession limit, and fishing seasons) implemented by the states from 
MA to NC have been reviewed by the Commission's Technical Committee 
(TC) 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 2011 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 2011 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 2011. For clarity, the 2011 summer 
flounder management measures adopted by the individual states vary 
according to the state of landing, as specified in Table 2.

[[Page 38309]]



  Table 2--2011 Commission Approved State-by-State Conservation Equivalent Recreational Management Measures for
                                                 Summer Flounder
----------------------------------------------------------------------------------------------------------------
                                       Minimum fish size      Possession
                                  --------------------------    limit
              State                                           (number of              Fishing season
                                      inches         cm         fish)
----------------------------------------------------------------------------------------------------------------
Massachusetts....................         17.5        44.45            5  May 22-September 30.
Rhode Island.....................         18.5        46.99            7  May 1-December 31.
Connecticut......................         18.5        46.99            3  May 15-September 5.
New York.........................         20.5        52.07            3  May 1-September 30.
New Jersey.......................         18.0        45.72            8  May 7-September 25.
Delaware.........................         18.0        45.72            4  January 1-October 23.
Maryland.........................         18.0        45.72            3  April 16-November 30.
Virginia.........................         17.5        44.45            4  January 1-December 31.
North Carolina...................         15.0        38.10            6  January 1-December 31.
----------------------------------------------------------------------------------------------------------------
Note: At 40 designated shore sites in CT, anglers may keep 1 fish at 17.0 inches (43.18 cm), May 15-September 5.

Scup Recreational Management Measures

    As outlined in the April 21, 2011, proposed rule, NMFS is retaining 
the currently codified scup recreational management measures for the 
2011 fishing year. These are the status quo measures of 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 (i.e., closed seasons 
from January 1-June 5 and again from September 27-December 31).
    These measures, in conjunction with the regional approach being 
applied to state waters through the Commission, are expected to 
constrain landings to the 5.74-million-lb (2,604 mt) recreational 
harvest limit being concurrently implemented by this rule.
    NMFS acknowledges that the Commission will continue managing the 
recreational scup fishery through a Commission-based conservation 
equivalency program that has no comparable measures in the Federal FMP. 
Thus, recreational management measures will differ between state and 
Federal waters in 2011. Historically, very little of the scup 
recreational harvest comes from Federal waters; the scup recreational 
harvest from Federal waters for 2009 was approximately 2 percent of the 
total coastwide landings.

Black Sea Bass Recreational Management Measures

    NMFS is retaining the currently codified black sea bass measures 
for use in Federal waters during the 2011 fishery (i.e., the status 
quo). These measures are a 12.5-in (31.75-cm) minimum fish size, 25-
fish per person possession limit, and May 22-October 11 and November 1-
December 31 fishing seasons. Measures for state waters will vary by 
state, as described later in this section. NMFS had proposed 
additional, more restrictive measures for the 2011 fishing year (i.e., 
a 13.0-inch (33.02-cm) minimum fish size, a 25-fish per person 
possession limit, and open seasons of July 1 through October 1 and 
November 1 through December 31); however, these measures are no longer 
necessary as the Commission has developed, approved, and implemented 
measures for state waters that, when paired with the status quo 
measures in Federal waters, achieve the required management objectives 
for 2011. NMFS described in the April 21, 2011, proposed rule the 
circumstances that might lead to either set of black sea bass measures 
being approved for 2011. That information is not repeated here.
    The Commission notified the NMFS Northeast Regional Administrator 
by letter dated May 19, 2011, that the 2011 black sea bass recreational 
fishery management programs (i.e., minimum fish size, possession limit, 
and fishing seasons) implemented by the states from MA to NC have been 
reviewed by the TC and approved for use by the Commission's Black Sea 
Bass Management Board under Addendum XXI to the Commission's black sea 
bass management plan. The correspondence indicates that the Commission-
approved management programs, when paired with status quo measures in 
Federal waters, are projected to restrict 2011 recreational black sea 
bass coastwide landings to the 1.84-million-lb (835 mt) recreational 
harvest limit. Recreational management measures between state and 
Federal waters may differ as a result of the Commission's Addendum XXI 
measures, depending on the measures implemented by the individual 
states as outlined in Table 3.

 Table 3--Black Sea Bass Management Measures Implemented by NMFS for Federal Waters and the Commission for State
                                                  Waters, 2011
----------------------------------------------------------------------------------------------------------------
                                                Minimum fish size      Possession
                                           --------------------------    limit
                                                                       (number of          Fishing season
                                               inches         cm         fish)
----------------------------------------------------------------------------------------------------------------
                             Federal Measures Implemented by NMFS for Federal Waters
----------------------------------------------------------------------------------------------------------------
EEZ.......................................         12.5        31.75           25  May 22-October 11 and
                                                                                    November 1-December 31.
----------------------------------------------------------------------------------------------------------------
                          State Measures Implemented by the Commission for State Waters
----------------------------------------------------------------------------------------------------------------
State:
    Massachusetts.........................         14.0        35.36           10  May 22-October 11.
    Rhode Island..........................         13.0        33.02           12  July 11-December 31.

[[Page 38310]]

 
    Connecticut...........................         13.0        33.02           25  July 1-October 11 and
                                                                                    November 1-December 31.
    New York..............................         13.0        33.02           10  June 13-October 1 and
                                                                                    November 1-December 31.
    New Jersey............................         12.5        31.75           25  May 28-September 11 and
                                                                                    November 1-December 31.
    Delaware..............................         12.5        31.75           25  May 22-October 11 and
                                                                                    November 1-December 31.
    Maryland..............................         12.5        31.75           25  May 22-October 11 and
                                                                                    November 1-December 31.
    Virginia..............................         12.5        31.75           25  May 22-October 11 and
                                                                                    November 1-December 31.
    North Carolina........................         12.5        31.75           25  July 1-September 25 and
                                                                                    November 1-December 31.
----------------------------------------------------------------------------------------------------------------

    Because the Commission-based measures implemented by the states are 
different than the Federal water measures, Federal permit holders are 
required to adhere to the more restrictive set of measures irrespective 
of if fishing in state or Federal waters. Similarly, private anglers 
must adhere to the recreational measures implemented by the state in 
which the fish will be landed as all the state-implemented measures 
place restrictions on possession as opposed to landings.
    For additional information on state-implemented management 
measures, please contact the marine fisheries management agency for the 
state in question or the Commission (http://www.asmfc.org; (703) 842-
0740).

Comments and Responses

    Three comment letters were received regarding the proposed scup 
quota increase and recreational management measures. Two of these 
comments pertained to measures being proposed by the South Atlantic 
Fishery Management Council for managing the black sea bass stock south 
of Cape Hatteras, NC, and thus are not applicable to this rulemaking. 
The other comment letter raised concerns about the scup allocation 
between the recreational and commercial sector, as well as the black 
sea bass measures proposed for 2011. Comments that require responses 
are addressed, as follows:
    Comment: One commenter stated that the increased scup quota would 
only permit greater opportunity for the commercial fishery sector, as 
the increase in quota would only permit the use of status quo scup 
recreational management measures. The commenter further stated that the 
allocation between the two sectors should be shifted to provide more 
opportunity for the recreational fishery sector.
    The same commenter also stated that the required reduction in black 
sea bass landings in 2011 from 2010 levels should be dispersed over an 
unspecified period of time. The commenter also expressed a preference 
for reducing the black sea bass possession limit presumably in lieu of 
changing either the fishing season or increasing the minimum fish size 
from 2010 levels.
    Response: The increased scup quota implemented by this rule enables 
the use of status quo state and Federal recreational management 
measures for 2011. Had the increase in quota not been implemented for 
2011, a reduction in scup recreational landings would have been 
required because the 2010 recreational fishery substantially exceeded 
the recreational harvest limit in place. The statement that harvest 
opportunity is increased for both sectors is not in reference to the 
potential change from 2010 to 2011, but rather, is applicable relative 
to the opportunity that would have been available had the quota 
increase not been implemented. The preliminary analyses conducted by 
the Council in November 2010 indicated that a 12-percent reduction in 
recreational landings for 2011 from 2010 levels would have been 
required, had the recreational harvest limit not been increased from 
4.3 million lb (1,956 mt) to 5.74 million lb (2,604 mt). Thus, had the 
recreational harvest limit not been made available for 2011, scup 
recreational management measures would have been more restrictive than 
the measures implemented by this rule. Those restrictions would have 
decreased recreational harvest opportunity.
    With respect to the allocation of scup between the recreational and 
commercial fishing sectors, the current allocation split of 78 percent 
to the commercial fishery, and 22 percent to the recreational fishery, 
is specified in the FMP. This allocation cannot be changed through 
either the Council's annual specification or recreational management 
measures processes, nor is it possible to modify the allocation 
structure through a FMP framework adjustment process. An amendment to 
the FMP would be required to enact any allocation change. To date, the 
Council has not developed or recommended to NMFS any changes to the 
scup allocation.
    This rule retains the status quo black sea bass measures of a 25-
fish per person possession limit, and open season of July 1-October 1 
and November 1-December 31 for Federal waters in 2011. State measures 
implemented through the Commission's process for 2011 vary (see Table 3 
for more information). Substantial discussion occurred during the 
December 2010 joint Council and Commission meeting about reducing the 
per angler possession limit from 25 fish to reduce landings in 2011 
from 2010 levels. Because the available landings data for black sea 
bass indicate that most anglers retain far fewer than 25 fish (slightly 
over 90 percent of all anglers land 6 or fewer black sea bass), any 
reduction in possession limit would need to be substantial to have any 
effective reduction in landings. For example, if the possession limit 
were reduced by 15 fish from 25 to 10, the net reduction in projected 
2011 landings from 2010 levels would be less than 3

[[Page 38311]]

percent, because most anglers do not keep more than 5-6 fish.

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
final rule implementing the increased 2011 scup specifications and 2011 
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 SEA are available from the Council and NMFS (see 
ADDRESSES). A FRFA was previously completed in conjunction with the 
final rule that implemented the initial scup specifications for 2011 
(75 FR 81498; December 28, 2010). This FRFA supplements the necessary 
information pertaining to the increases in the scup specifications 
implemented by this rule and provides the necessary information with 
respect to the summer flounder, scup, and black sea bass recreational 
management measures.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why the scup specifications are being 
increased, why the 2011 recreational management measures for summer 
flounder, scup, and black sea bass are being implemented, and the 
objectives of and legal basis for this final rule implementing both 
actions 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 are 
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 increased scup specifications or 
recreational management measures more generally. As described in the 
preamble, the black sea bass measures implemented by this rule were 
changed from those previously proposed.

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

    The scup specifications increase could affect any of the 398 
vessels possessing a Federal moratorium or party/charter permit in 
2009, the most recent year for which complete permit data are 
available. The recreational management measures could affect any of the 
980 vessels possessing a Federal charter/party permit for summer 
flounder, scup, and/or black sea bass in 2009. However, only 348 
vessels reported active participation in the 2009 recreational summer 
flounder, scup, and/or black sea bass fisheries.

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

Scup Specifications
    A FRFA was previously prepared in conjunction with the action that 
implemented the initial scup 2011 specifications (75 FR 81498; December 
28, 2010). Information from that FRFA remains applicable here with 
respect to the scup specification increase: The economic impact 
analyses on the various specification levels proposed by the Council 
for implementation by NMFS were evaluated solely on the different 
levels of quota specified in the alternatives. The ability of NMFS to 
minimize economic impacts when implementing specifications is 
constrained to approving quota levels (i.e., TAC and TAL) that provide 
the maximum availability of fish while still ensuring that the required 
objectives and directives of the FMP, its implementing regulations, and 
the Magnuson-Stevens Act are met. To aid in this process, the Council's 
Scientific and Statistical Committee (SSC) made recommendations for the 
2011 Acceptable Biological Catch (ABC) level for all three stocks, 
including scup. The ABC is a catch level of a stock's annual catch that 
accounts for the scientific uncertainty in the estimate of the 
overfishing level (OFL) and any other scientific uncertainty and, as 
such, is designed to provide a low probability of overfishing a stock 
in a given year for which ABC is recommended.
    The economic analysis for the 2011 specifications, including the 
increased scup specifications, assessed the impacts for quota 
alternatives that achieve the aforementioned objectives. The no action 
alternative, wherein no quotas are established for 2011, was excluded 
from analysis because it is not consistent with the goals and 
objectives of the FMP and the Magnuson-Stevens Act. Alternative 2 from 
the Council's analysis contained the most restrictive TAL options 
(i.e., the lowest catch levels; a TAL of 14.11 million lb (6,400 mt)) 
and was not preferred by the Council or implemented by NMFS because 
other alternatives had lower impacts on small entities while achieving 
the stated objectives of the 2011 specification process. Alternative 3 
contained the least restrictive quotas (a TAL of 28.96 million lb 
(13,136 mt)) and produced the smallest impact on small entities. 
However, the respective quotas under Alternative 3 were inconsistent 
with the SSC's catch level recommendations, as they exceeded the ABC 
recommendations provided by the SSC. Because the Alternative 3 measures 
were inconsistent with the Magnuson-Stevens Act requirements, they 
could not be implemented for 2011, despite having the lowest associated 
impact on small entities.
    In December 2010, NMFS implemented TALs contained in the Council's 
Alternative 1 (summer flounder, 29.48 million lb (13,372 mt); scup, 
20.0 million lb (9,072 mt); and black sea bass, 3.6 million lb (1,633 
mt)), the Council's preferred alternatives at the time, which consisted 
of the quota alternatives that paired the lowest economic impacts to 
small entities and meet the required objectives of the FMP and the 
Magnuson-Stevens Act. However, in the interim since that action, the 
Council supplemented its preferred scup specification measures as 
previously described. This new preferred alternative, designated 
Alternative 1B and implemented by this rule, provides an increase in 
the scup TAC from 29.4 million lb (13,372 million lb) to 31.92 million 
lb (14,479 mt). This TAC increase would be 8 percent below the maximum 
sustainable yield (MSY) level for scup, and considerably below the 2011 
ABC of 51.70 million lb (23,451 mt) recommended by the Council's SSC. 
Thus, it is both consistent with the Magnuson-Stevens Act requirements,

[[Page 38312]]

the FMP, the SSC's recommendation, and provides the lowest impacts on 
small entities by providing the maximum opportunity to harvest scup 
among the various specification alternatives considered for 2011. The 
increased opportunity afforded by the increased scup specifications is 
expected to produce positive socioeconomic impacts relative to the 
previously implemented specification level.
Recreational Management Measures
    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. Management measures 
must provide sufficient constraints on recreational landings, such that 
the established recreational harvest limits have a low likelihood of 
being exceeded, which might lead to overfishing the stock. This rule 
maintains the status quo recreational management measures for all three 
species in Federal waters.
    Summer flounder alternatives. The alternatives examined by the 
Council and forwarded for consideration by NMFS consisted of the 
preferred alternative of state-by-state conservation equivalency (see 
Table 2 for measures) with a precautionary default backstop (status 
quo), and the non-preferred alternative of coastwide measures (an 18.5-
inch (46.99-cm) minimum fish size, a 2-fish per person possession 
limit, and open season from May 1 through September 30). These were 
alternatives 1 and 2, respectively, in the Council's EA/RIR/IRFA. 
Analysis of these two alternatives were determined by the Council to 
provide a high probability of constraining recreational landings to 
levels at or below the 2011 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 likely 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, 
stating a preference for coastwide measures.
    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 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 at Sec.  648.100 or the Magnuson-Stevens Act, including the 10 
National Standards.
    The additional metric for consideration by NMFS, 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 for the 2011 summer flounder 
recreational fishery. However, the economic impacts of the two 
alternatives are not projected to be equal in the Council's analyses: 
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 analyses of the economic impacts associated with 
conservation equivalency measures are not available. This is because 
the development of the individual state measures occurs concurrent to 
the NMFS rulemaking process to ensure timely implementation of final 
measures for the 2011 recreational fishery; thus, the specific measures 
implemented by states are not available for economic impact analyses. 
Instead, qualitative methods were utilized by the Council to assess the 
relative impact of conservation equivalency (alternative 1) to 
coastwide measures (alternative 2). 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, depending on the restrictions imposed by the 
Commission, than would coastwide measures. However, the one-size-fits-
all approach of coastwide measures would negatively impact a broader 
distribution of states and the small entities that fish from those 
states.
    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 2011 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 coastwide basis are expected to 
be mitigated, to the extent practicable, for a much larger percentage 
of small entities.
    Scup alternatives. As outlined in the preamble, the individual 
states have elected to implement a state-waters conservation 
equivalency system for the 2011 scup recreational fishery that has no 
comparable regulations for use in Federal waters. NMFS is retaining the 
measures currently codified as the Federal water measures for the 2011 
fishing year: 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. 
Similar to the summer flounder discussion, this suite of scup measures 
(alternative 1) provides the minimum impact on small entities from the 
alternatives available by providing the maximum fishing opportunity in 
Federal waters and meets the requirements of the Magnuson-Stevens Act, 
the FMP, and achieves the conservation objectives for 2011. Alternative 
1 for a 10.5-inch (26.67-cm) minimum fish size, 15-fish per person 
possession limit, and open seasons of January 1 through February 28 and 
October 1 through October 31, and Alternative 3 for an 11.0-inch 
(27.94-cm) minimum fish size, 10-fish per person possession limit, and 
open season of May 24 through September 26 contained measures that had 
higher impacts on small entities fishing in Federal waters, as both 
contained more restrictive measures than would be necessary to satisfy 
the management objectives.
    Black sea bass alternatives. This final rule is implementing 
measures that differ from those originally proposed. As previously 
stated in the preamble, individual states have developed and 
implemented measures for use in state waters. This rule retains the 
status quo measures of alternative 2 contained in the Council's EA/RIR/
IRFA: A 12.5-inch (31.75-cm) minimum fish size; a 25-fish

[[Page 38313]]

possession limit; and May 22-October 11 and November 1-December 31 
fishing seasons for Federal waters. This alternative provides the 
lowest associated economic impacts to small entities of the measures 
considered for Federal waters that also meets the statutory and 
regulatory requirements for the 2011 fishery. Alternative 1 (a 13.0-
inch (33.02-cm) minimum fish size, a 25-fish per person possession 
limit, and open season of July 1 through October 1 and November 1 
through December 31), originally proposed by NMFS for 2011, was 
projected to achieve the conservation objectives for the 2011 black sea 
bass fishery; however, the landings level reduction imposed by the 
alternative's measures is more restrictive than necessary. The 
Alternative 3 measures proposed (12.5-inch (31.75-cm) minimum fish 
size, a 25-fish per person possession limit, and open seasons of 
January 1 through December 31) were not projected to achieve the 
necessary reduction in landings for 2011 and, as such, could not be 
implemented by NMFS.

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 Web site: http://www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 27, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 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 18.5 inches (46.99 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 2011 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--May 1 through September 30; minimum size--20.0 inches (50.80 
cm); and possession limit--two fish.

[FR Doc. 2011-16517 Filed 6-29-11; 8:45 am]
BILLING CODE 3510-22-P