Federal Register, Volume 75 Issue 80 (Tuesday, April 27, 2010)

[Federal Register Volume 75, Number 80 (Tuesday, April 27, 2010)]
[Proposed Rules]
[Pages 22087-22094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9729]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0907211158-91159-01]
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: Proposed rule; request for comments.

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SUMMARY: NMFS proposes management measures for the 2010 summer
flounder, scup, and black sea bass recreational fisheries. The
implementing regulations for these fisheries require NMFS to publish
recreational measures for the fishing year and to provide an
opportunity for public comment. The intent of these measures is to
prevent overfishing of the summer flounder, scup, and black sea bass
resources.

DATES: Comments must be received by 5 p.m. local time, on May 27, 2010.

ADDRESSES: You may submit comments, identified by 0648-AY04, by any one
of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal http://www.regulations.gov
Fax: (978) 281-9135, Attn: Comments on 2010 Summer
Flounder, Scup, and Black Sea Bass Recreational Management Measures,
0648-AY04
Mail and hand delivery: Patricia A. Kurkul, Regional
Administrator, NMFS, Northeast Regional Office, 55 Great Republic
Drive, Gloucester, MA 01930. Mark the outside of the envelope:
``Comments on 2010 Summer Flounder, Scup, and Black Sea Bass
Recreational Measures, 0648-AY04.''
Instructions: No comments will be posted for public viewing until
after the comment period has closed. All comments received are a part
of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying
Information (for example, name, address, etc.) voluntarily submitted by
the commenter may be publicly accessible. Do not submit Confidential
Business Information or otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). You may submit attachments to
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF
file formats only.
Copies of the recreational management measures document, including
the Environmental Assessment, Regulatory Impact Review, and Initial
Regulatory Flexibility Analysis (EA/RIR/IRFA) and other supporting
documents for the recreational management measures are available from
Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management
Council, 800 N. State Street, Suite 201, 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:

Background

The summer flounder, scup, and black sea bass fisheries are managed
cooperatively under the provisions of the Summer Flounder, Scup, and
Black Sea Bass Fishery Management Plan (FMP) developed by the Mid-
Atlantic Fishery Management Council (Council) and the Atlantic States
Marine Fisheries Commission (Commission), in consultation with the New
England and South Atlantic Fishery Management Councils. The management
units specified in the FMP include summer flounder (Paralichthys
dentatus) in U.S. waters of the Atlantic Ocean from the southern border
of North Carolina (NC) northward to the U.S./Canada border, and scup
(Stenotomus chrysops) and black sea bass (Centropristis striata) in
U.S. waters of the Atlantic Ocean from 35[deg] E. 13.3' N. lat. (the
latitude of Cape Hatteras Lighthouse, Buxton, NC) northward to the
U.S./Canada border.
The Council prepared the FMP under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act),
16 U.S.C. 1801 et seq. Regulations implementing the FMP appear at 50
CFR part 648, subparts A (general provisions), G (summer flounder), H
(scup), and I (black sea bass). General regulations governing U.S.
fisheries also appear at 50 CFR part 600. States manage summer flounder
within 3 nautical miles of their coasts, under the Commission's plan
for summer flounder, scup, and black sea bass. The Federal regulations
govern vessels fishing in Federal waters of the exclusive economic zone
(EEZ), as well as vessels possessing a Federal fisheries permit,
regardless of where they fish.

[[Page 22088]]

The FMP established Monitoring Committees (Committees) for the
three fisheries, consisting of representatives from the Commission, the
Council, state marine fishery agency representatives from MA to NC, and
NMFS. The FMP and its implementing regulations require the Committees
to review scientific and other relevant information annually and to
recommend management measures necessary to achieve the recreational
harvest limits established for the summer flounder, scup, and black sea
bass fisheries for the upcoming fishing year. The FMP limits these
measures to minimum fish size, possession limit, and fishing season.
The Council's Demersal Species Committee, and the Commission's
Summer Flounder, Scup, and Black Sea Bass Management Board (Board) then
consider the Committees' recommendations and any public comment in
making their recommendations to the Council and the Commission,
respectively. The Council then reviews the recommendations of the
Demersal Species Committee, makes its own recommendations, and forwards
them to NMFS for review. The Commission similarly adopts
recommendations for the states. NMFS is required to review the
Council's recommendations to ensure that they are consistent with the
targets specified for each species in the FMP before ultimately
implementing measures for Federal waters.
Quota specifications for the 2010 summer flounder, scup, and black
sea bass fisheries were published on December 22, 2009 (74 FR 67978),
and became effective January 1, 2010. The black sea bass specifications
(i.e., recreational harvest limit and commercial quota) were increased
by emergency rule on February 10, 2010 (75 FR 6586). Based on the
specifications, the 2010 coastwide recreational harvest limits 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
specification rules did not establish recreational measures, in large
part because a substantial portion of 2009 recreational catch data was
not yet available when the Council made its recreational harvest limit
recommendation to NMFS.
All minimum fish sizes discussed hereafter are total length
measurements of the fish, i.e., the straight-line distance from the tip
of the snout to the end of the tail while the fish is lying on its
side. For black sea bass, total length measurement does not include the
caudal fin tendril. All possession limits discussed below are per
person. All landings projection data are based on data from the Marine
Recreational Fisheries Statistics Survey (MRFSS) Waves 1-4 (January-
August) unless otherwise indicated.

Summer Flounder

Recreational landings for 2009 were estimated to have been 6.40
million lb (2,903 mt) and were 12 percent below the 2009 recreational
harvest limit of 7.16 million lb (2,248 mt). The 2010 coastwide harvest
limit is 8.59 million lb (3,896 mt), a 20-percent increase from the
2009 harvest limit. The Council and Commission have recommended the use
of conservation equivalency to manage the 2010 summer flounder
recreational fishery.
NMFS implemented Framework Adjustment 2 to the FMP (Framework
Adjustment 2) on July 29, 2001 (66 FR 36208), which established a
process that makes conservation equivalency an option for the summer
flounder recreational fishery. Conservation equivalency allows each
state to establish its own recreational management measures (possession
limits, minimum fish size, and fishing seasons) to achieve its state
harvest limit provided by the Commission, as long as the combined
effect of all of the states' management measures achieves the same
level of conservation as would Federal coastwide measures developed to
achieve the overall recreational harvest limit, if implemented by all
of the states.
The Council and Board recommend that either on an annual basis
state-specific recreational measures be developed (conservation
equivalency) or coastwide management measures be implemented by all
states to ensure that the recreational harvest limit will not be
exceeded. Even when the Council and Board recommend conservation
equivalency, the Council must specify a set of coastwide measures that
would apply if conservation equivalency is not approved for use in
Federal waters.
If conservation equivalency is recommended, and following
confirmation that the proposed state measures developed through the
Commission's technical and policy review processes achieve conservation
equivalency, NMFS may waive the permit condition found at Sec.
648.4(b), which requires federally permitted vessels to comply with the
more restrictive management measures when state and Federal measures
differ. In such a situation, federally permitted charter/party permit
holders and recreational vessels fishing for summer flounder in the EEZ
would then be subject to the recreational fishing measures implemented
by the state in which they land summer flounder, rather than the
coastwide measures.
In addition, the Council and the Board must recommend precautionary
default measures when recommending conservation equivalency. The
Commission would require adoption of the precautionary default measures
by any state that either does not submit a summer flounder management
proposal to the Commission's Summer Flounder Technical Committee
(Technical Committee), or that submits measures that would not exceed
the harvest limit for that state. The precautionary default measures
are defined as the set of measures that would not exceed the harvest
limit for any state on a coastwide basis.
In previous years when conservation equivalency has been jointly
recommended by the Council and Commission, NMFS has provided a
description of the management targets, technical, and other Commission-
imposed requirements for states to follow when designing state-specific
equivalent measures. The process that results in selection of
appropriate data and analytic techniques for technical review of
potential state conservation equivalent measures and the process by
which the Commission evaluates and recommends proposed conservation
equivalent measures is wholly a function of the Commission and its
individual member states. Inclusion of such descriptions may add
confusion and imply that the development, evaluation, and
recommendation process is part of the combined Council and NMFS
responsibilities of the conservation equivalency system. Individuals
seeking information regarding the specific state measure development
process or the Commission process should contact the marine fisheries
agency in the state of interest, the Commission, or both.
Once states select their final 2010 summer flounder management
measures through their respective development, analytical, and review
processes and submit them to the Commission, the Commission will
conduct further independent review and evaluation of the state-
submitted proposals, ultimately notifying NMFS as to which individual
state proposals have been approved or disapproved. NMFS has no input or
authority in the state or Commission management measure development and
review process. However, NMFS retains the final authority either to
approve or to disapprove the use of conservation equivalency in place
of the coastwide measures, and will publish its

[[Page 22089]]

determination as a final rule in the Federal Register to establish the
2010 recreational measures for these fisheries.
States that do not submit conservation equivalency proposals, or
whose proposals are disapproved by the Commission, will be required by
the Commission to adopt the precautionary default measures. In the case
of states that are initially assigned precautionary default measures,
but subsequently receive Commission approval of revised state measures,
NMFS will publish a notice in the Federal Register announcing a waiver
of the permit condition at Sec. 648.4(b).
The precautionary default measures recommended by the Council and
Board during their joint December 2009 meeting are for a 21.5-inch
(54.61-cm) minimum fish size, a possession limit of two fish, and an
open season of May 1 through September 30, 2010.
As described above, for each fishing year, NMFS implements either
coastwide measures or conservation equivalent measures at the final
rule stage. The coastwide measures recommended by the Council and Board
for 2010 are a 19.5-inch (49.53-cm) minimum fish size, a possession
limit of two fish, and an open season from May 1 to September 30, 2010.
In this action, NMFS proposes to implement conservation
equivalency with a precautionary default backstop, as previously
outlined, for states that either fail to submit conservation equivalent
measures or whose measures are not approved by the Commission. NMFS
proposes the non-preferred alternative of coastwide measures, as
previously described, for use if conservation equivalency is not
approved in the final rule. The coastwide measures would be waived if
conservation equivalency is approved in the final rule.

Scup

The 2010 scup recreational harvest limit is 3.01 million lb (1,366
mt), a 16-percent increase from the 2009 recreational harvest limit of
2.59 million lb (1,175 mt). Recreational landings in 2009 are estimated
to have been 4.01 million lb (1,819 mt), exceeding the recreational
harvest limit by 55 percent. Because of this overage, recreational
landings must be reduced by 30 percent from 2009 levels for the 2010
fishery to stay within the established recreational harvest limit.
However, the Council initially recommended measures that would
reduce 2010 landings by 35 percent to remain within the 2010
recreational harvest limit based on a preliminary landings estimate
that was slightly higher. The Council's recommendation was made in
early December and, subsequent to the Council's recommendation, and
subsequent additional analysis of the 2009 recreational landings has
been conducted by a technical working group at the request of the
Council, Commission, and NMFS. The working group was tasked to re-
examine a specific situation regarding anomalies from the MRFSS Wave 4
Massachusetts party vessel sector estimate. The analysis conducted by
this working group resulted in a revised Wave 4 estimate that changed
the level of reduction from 2009 landing levels required for 2010 from
35 to 30 percent. As a result, the Council's preferred alternative for
an 11.0-inch (27.94-cm) minimum fish size, a 10-fish per person
possession limit, and open fishing seasons of January 1-February 28 and
June 12-September 26 is more restrictive than necessary to remain
within the 2010 recreational harvest limit.
The Council also considered an alternative that is projected to
provide the revised 30-percent reduction from 2009 landings in 2010: 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. Consistent with the
revised catch analysis for 2009, NMFS proposes to implement the
Council's non-preferred suite of measures that achieve the 30-precent
reduction in 2010 landings from 2009 levels for Federal waters in the
2010 scup recreational fishery: 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. NMFS acknowledges that the Commission meeting has
indicated its intent to continue managing the recreational scup fishery
through a Commission-based conservation equivalency program that has no
comparable measures in the Federal FMP. Preliminary information
presented during the February 2010 Commission indicated that the
Commission's 2010 scup recreational measures for state waters may
differ from the measures of this proposed rule. Very little of the scup
recreational harvest comes from the Federal waters of the EEZ. The
total scup recreational harvest from Federal waters for 2008 was
approximately 4 percent.

Black Sea Bass

The process for 2010 black sea bass recreational management
measures has been complicated by many unusual, and at times,
unforeseeable events. Recreational landings in 2009 were estimated to
have been between 1.94 and 3.31 million lb (882 and 1,501 mt), based on
evaluation of actual landings data through August and projections of
final 2009 landings. Either scenario exceeds the 2009 recreational
harvest limit of 1.14 million lb (517 mt). NMFS implemented an
emergency rule (74 FR 51092; October 5, 2009) to close Federal waters
of the EEZ to black sea bass recreational fishing for a period of 180
days, based on recreational landings data through August 2009, because
of the magnitude of the overage. When the closure was implemented in
October 2009, the 2010 recreational harvest limit had not yet been
finalized, development of recreational management measures had not yet
begun, and data on final recreational landings for 2009 were
incomplete. While issuing the closure, NMFS anticipated that the
magnitude of the 2009 overage was such that a reduction in landings
from 2009 levels in 2010 would be likely. Thus, the fishery was closed
for 180 days, as opposed to implementing a closure through the end of
the fishing year, December 31, 2009. It was expected that in the
interim between the start of the closure on October 5, 2009, and the
end of the 180-day closure period, the typical process for establishing
both the 2010 recreational harvest limit and recreational management
measures would occur. However, the process has been atypical, for the
following reasons.
In December 2009, the Council and Commission developed recommended
management measures for the 2010 recreational fishery. The measures
were designed to achieve a 66-percent reduction in landings from
projected 2009 levels, which was consistent with the black sea bass
recreational harvest limit of 1,137,810 lb (516 mt) that had been
adopted by the Council and Commission in August 2009. The 66-percent
reduction was calculated using 2009 landings data from Waves 1-4
(January-August), and projected landings for Waves 5 and 6 (September-
December), as data for Waves 5 and 6 were not available at the time the
Council and Commission met.
On December 22, 2009, NMFS published a final rule implementing the
specifications for the 2010 fishing year. These specifications,
effective January 1, 2010, included total allowable landings (TAL) for
black sea bass of 2.3 million lb (1,043 mt), of which 1,137,810 lb (516
mt) was allocated to the recreational fishery as the recreational
harvest limit. This TAL and recreational harvest limit was consistent
with the August 2009 recommendations of the Council and Commission.

[[Page 22090]]

In early January 2010, the Council's Scientific and Statistical
Committee (SSC) convened to reconsider its previous recommendations
regarding the Acceptable Biological Catch (ABC) for black sea bass for
the 2010 fishing year. The SSC concluded that the ABC for black sea
bass could be increased from 2.71 million lb (1,229 mt) to 4.5 million
lb (2,041 mt), which was consistent with catch levels established for
2008.
In response, on January 15, 2010, the Council submitted a letter to
NMFS requesting that the agency take emergency action to increase the
black sea bass TAL for 2010 consistent with the revised ABC. The letter
requested that NMFS increase both the 2010 commercial quota and
recreational harvest limit for black sea bass.
On February 10, 2010, in response to the Council's request, NMFS
published an emergency rule to increase the 2010 black sea bass TAL
from 2.3 million lb (1,043 mt) to 3.7 million lb (1,678 mt), and to
increase the recreational harvest limit to 1,830,390 lb (830 mt).
In mid-February 2010, the Commission and Council met separately to
reconsider the recreational fishery management measures developed in
December 2009. The measures adopted in December 2009 were designed to
achieve a 66-percent reduction in black sea bass landings relative to
2009, but with the increased recreational harvest limit implemented in
the emergency rule, only a 44-percent reduction appeared necessary.
Both the Council and Commission retained the status quo minimum fish
size of 12.5 inches (31.75 cm) and 25-fish bag limit, but the two
groups adopted different seasons. The Commission adopted a single
season from May 22-September 12, and the Council recommended a split
season from May 22-August 8 and September 4-October 4. Both sets of
measures are projected to achieve a 44-percent reduction in landings.
Information on final 2009 black sea bass recreational total
landings are not yet available. However, since the Council and
Commission reconsidered 2010 black sea bass recreational management
measures based on a 44-percent reduction in landings, the preliminary
2009 MRFSS Wave 6 (November-December) data have become available. The
EEZ was closed for the entire 2009 Wave 6 period, and landings from
2009 Wave 6 are 75 percent lower than 2008 Wave 6 landings. The EEZ was
also closed from October 5-31, 2009, during Wave 5 (September-October),
but data on Wave 5 are not yet available.
The projection methodology utilized by both the Council and
Commission that indicated a 44-percent reduction in landings was
necessary used 2008 Wave 6 data and assumed that the EEZ closure had no
effect on landings during the October 5-December 31 period (i.e.,
partial Wave 5 and all of Wave 6). This assumption was reasonable at
the time, given that: (1) The Council and Commission anticipated that
some amount of landings would continue to occur in state waters that
remained open; and (2) preliminary Wave 5 data were expected to be
available in mid-December to provide a more informed assessment of the
closure impacts. However, issues related to the adequacy of survey
sample size for the 2009 Wave 5 sampling period required additional
analyses to be conducted by the NMFS Office of Science and Technology
to ensure suitability of the 2009 Wave 5 estimate. Final data for Wave
5 are expected in mid-April 2010.
NMFS has conducted additional analysis of the 2009 projected
landings, making use of the preliminary 2009 Wave 6 data and modifying
the assumptions regarding black sea bass landings during the October 5-
31, 2009, EEZ closure timeframe. It is evident from this analysis that
the 2009 black sea bass landings are lower than previously projected;
however, in the multiple projection scenarios conducted, the 2009
recreational harvest limit was still exceeded and a reduction in 2010
landings still appears to be necessary. These alternative projections
suggest that the percent reduction in landings from 2009 levels is less
than the 44 percent in the Council and Commission projection analysis.
To ensure that final 2010 black sea bass recreational management
measures are promulgated in a timely fashion and make use of the best
available information regarding 2009 landings, NMFS is proposing the
following course of concurrent actions:
1. NMFS has extended the existing recreational fishery closure in
the EEZ until 11:59 p.m., May 21, 2010. This will ensure that the 2010
recreational fishery will begin no earlier than the Council and
Commission preferred start date of May 22, 2010.
2. NMFS will analyze 2009 Wave 5 and final 2009 black sea bass
recreational landings data as soon as they are available. These data
are expected in mid-April. Using these data will provide the best
information possible on the amount of reduction required in the 2010
fishery.
3. NMFS proposes to implement the Council and Commission-
recommended minimum fish size of 12.0 inches (31.75 cm), possession
limit of 25 fish per person, and season starting date of May 22, 2010.
The final season length will be determined by the updated analysis of
final 2009 landings data and implemented in the final rule for this
action, following analysis and public comment.
It is not practicable to hold this proposed rule for 2010 black sea
bass recreational management measures until after final 2009 landings
data are available. In regards to season length, NMFS will consider the
amount of potential liberalization possible based on the final 2009
landings data and will, to the extent practicable, extend the fishing
season from May 22 onward. Under the Council's current preferred
alternative, a 44-percent reduction in landings is provided by a May
22-August 8 and September 4-October 4 fishing season; therefore,
liberalization could involve the addition of days from August 9-
September 3 and/or from October 5 onward, as permitted by any revision
to the required reduction in 2010 landings resulting from final 2009
landings data analysis. Through this proposed rule, NMFS is requesting
specific comment from the Council, Commission, and interested public on
how to best extend the fishing season, should the final analysis
warrant that. The full extent of potential season length will not be
known until final 2009 landings data can be analyzed. NMFS expects that
a final rule to implement the 2010 black sea bass recreational season
will be issued and effective well in advance of the Commission's
recommended August 8, 2010, mid-season closure.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
Assistant Administrator has determined that this proposed rule is
consistent with the Summer Flounder, Scup, and Black Sea Bass FMP,
other provisions of the Magnuson-Stevens Act, and other applicable law,
subject to further consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
An IRFA was prepared, as required by section 603 of the Regulatory
Flexibility Act (RFA). The IRFA describes the economic impact this
proposed rule, if adopted, would have on small entities. A description
of the action, why it is being considered, and the legal basis for this
action are contained in the preamble and in the SUMMARY of this
proposed rule. A summary of the analysis follows. A copy of the
complete

[[Page 22091]]

IRFA is available from the Council (see ADDRESSES).
This proposed rule does not duplicate, overlap, or conflict with
other Federal rules. The proposed action could affect any recreational
angler who fishes for summer flounder, scup, or black sea bass in the
EEZ or on a party/charter vessel issued a Federal permit for summer
flounder, scup, and/or black sea bass. However, the only regulated
entities affected by this action are party/charter vessels issued a
Federal permit for summer flounder, scup, and/or black sea bass, and so
the IRFA focuses upon the expected impacts on this segment of the
affected public. These vessels are all considered small entities for
the purposes of the RFA, i.e., businesses in the recreational fishery
with gross revenues of up to $6.5 million. These small entities can be
specifically identified in the Federal vessel permit database and would
be impacted by the recreational measures, regardless of whether they
fish in Federal or state waters. Although fishing opportunities by
individual recreational anglers may be impacted by this action, they
are not considered small entities under the RFA.
The Council estimated that the proposed 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.
In the IRFA, the no-action alternative (i.e., maintenance of the
regulations as codified) is defined as implementation of the following:
(1) For summer flounder, coastwide measures of a 20-inch (50.8-cm)
minimum fish size, a 2-fish possession limit, and a season from May 1
through September 30; (2) for scup, a 10.5-inch (26.67-cm) minimum fish
size, a 15-fish possession limit, and open seasons of January 1 through
February 28, and October 1 through October 31; and (3) for black sea
bass, a 12-inch (30.48-cm) minimum size, a 25-fish possession limit,
and an open season of January 1 through December 31.
The impacts of the proposed action on small entities (i.e.,
federally permitted party/charter vessels in each state in the
Northeast region) were analyzed, assessing potential changes in gross
revenues for all 24 combinations of alternatives proposed. Although
NMFS's RFA guidance recommends assessing changes in profitability as a
result of proposed measures, the quantitative impacts were instead
evaluated using changes in party/charter vessel revenues as a proxy for
profitability. This is because reliable cost and revenue information is
not available for charter/party vessels at this time. Without reliable
cost and revenue data, profits cannot be discriminated from gross
revenues. As reliable cost data become available, impacts to
profitability can be more accurately forecast. Similarly, changes to
long-term solvency were not assessed, due both to the absence of cost
data and because the recreational management measures change annually
according to the specification-setting process. Effects of the various
management measures were analyzed by employing quantitative approaches,
to the extent possible. Where quantitative data were not available,
qualitative analyses were utilized. Management measures proposed under
the summer flounder conservation equivalency alternative (Summer
Flounder Alternative 1) have yet to be adopted; therefore, potential
losses under this alternative could not be analyzed in conjunction with
various alternatives proposed for scup and black sea bass. Since
conservation equivalency allows each state to tailor specific
recreational fishing measures to the needs of that state, while still
achieving conservation goals, it is likely that the measures developed
under this alternative, when considered in combination with the
measures proposed for scup and black sea bass, would have fewer overall
adverse effects than any of the other combinations that were analyzed.
Impacts for other combinations of alternatives were examined by
first estimating the number of angler trips aboard party/charter
vessels in each state in 2009 that would have been affected by the
proposed 2010 management measures. All 2009 party/charter fishing trips
that would have been constrained by the proposed 2010 measures in each
state were considered to be affected trips. MRFSS data indicate that
anglers took 34.66 million fishing trips in 2009 in the Northeastern
U.S., and that party/charter anglers accounted for 1.41 million of the
angler fishing trips, private/rental boat trips accounted for 17.34
million angler fishing trips, and shore trips accounted for 15.91
million recreational angler fishing trips.
There is very little empirical evidence available to estimate how
the party/charter vessel anglers might be affected by the proposed
fishing regulations. If the proposed measures discourage trip-taking
behavior among some of the affected anglers, economic losses may accrue
to the party/charter vessel industry in the form of reduced access
fees. On the other hand, if the proposed measures do not have a
negative impact on the value or satisfaction the affected anglers
derive from their fishing trips, party/charter revenues would remain
unaffected by this action. In an attempt to estimate the potential
changes in gross revenues to the party/charter vessel industry in each
state, two hypothetical scenarios were considered: A 25-percent
reduction and a 50-percent reduction in the number of fishing trips
that are predicted to be affected by implementation of the management
measures in the Northeast (ME through NC) in 2010.
Total economic losses to party/charter vessels were then estimated
by multiplying the number of potentially affected trips in each state
in 2010, under the two hypothetical scenarios, by the estimated average
access fee of $62.38 paid by party/charter anglers in the Northeast in
2009. Finally, total economic losses were divided by the number of
federally permitted party/charter vessels that participated in the
summer flounder fisheries in 2009 in each state (according to homeport
state in the Northeast Region Permit Database) to obtain an estimate of
the average projected gross revenue loss per party/charter vessel in
2010. The analysis assumed that angler effort and catch rates in 2010
will be similar to 2009.
The Council noted that this method is likely to overestimate the
potential revenue losses that would result from implementation of the
proposed measures in these three fisheries for several reasons. First,
the analysis likely overestimates the potential revenue impacts of
these measures because some anglers would continue to take party/
charter vessel trips, even if the restrictions limit their landings.
Also, some anglers may engage in catch and release fishing and/or
target other species. It was not possible to estimate the sensitivity
of anglers to specific management measures. Second, the universe of
party/charter vessels that participate in the fisheries is likely to be
even larger than presented in these analyses, as party/charter vessels
that do not possess a Federal summer flounder, scup, or black sea bass
permit because they fish only in state waters are not represented in
the analyses. Considering the large proportion of landings from state
waters (e.g., more than 97 percent of summer flounder and 96 percent of
scup landings in 2008, respectively), it

[[Page 22092]]

is probable that some party/charter vessels fish only in state waters
and, thus, do not hold Federal permits for these fisheries. Third,
economic losses are estimated under two hypothetical scenarios: (1) A
25-percent; and (2) a 50-percent reduction in the number of fishing
trips that are predicted to be affected by implementation of the
management measures in the Northeast in 2010. Reductions in fishing
effort of this magnitude in 2010 are not likely to occur, given the
fact that the proposed measures do not prohibit anglers from keeping at
least some of the fish they catch, or the fact that there are
alternative species to harvest. Again, it is likely that at least some
of the potentially affected anglers would not reduce their effort when
faced with the proposed landings restrictions, thereby contributing to
the potential overestimation of potential impacts for 2010.

Impacts of Summer Flounder Alternatives

The proposed action for the summer flounder recreational fishery
would limit coastwide catch to 8.59 million lb (3,896 mt) by imposing
coastwide Federal measures throughout the EEZ. As described earlier,
upon confirmation that the proposed state measures would achieve
conservation equivalency, NMFS may waive the permit condition found at
Sec. 648.4(b), which requires federally permitted vessels to comply
with the more restrictive management measures when state and Federal
measures differ. Federally permitted charter/party permit holders and
recreational vessels fishing for summer flounder in the EEZ then would
be subject to the recreational fishing measures implemented by the
state in which they land summer flounder, rather than the coastwide
measures.
Because states have yet to develop specific 2010 management
measures, it is not yet possible to analyze the potential impacts of
Summer Flounder Alternative 1, which would implement conservation
equivalency. However, conservation equivalent recreational management
measures allow each state to develop specific summer flounder
recreational measures, which would allow the fishery to operate in each
state during critical fishing periods while still achieving the
conservation objectives. This should help mitigate potential adverse
economic impacts. Therefore, the Council concluded in its analysis that
Summer Flounder Alternative 1 would likely have the lowest potential
adverse impact of the alternatives considered for the 2010 summer
flounder recreational fishery.
Because states have a choice of developing specific measures in the
Commission's conservation equivalency process, it is expected that the
states would adopt conservation equivalent measures that result in
fewer adverse economic impacts than the more restrictive proposed
precautionary default measures (i.e., 21.5-inch (54.61-cm) minimum fish
size, a possession limit of two fish, and an open season of May 1
through September 30, 2010). The precautionary default is a sub-
alternative that may be implemented under specific conditions, as
outlined in the preamble of this rule. As such, the Council conducted
analysis of the potential impact of implementing precautionary default
measures in 2010. Under the precautionary default measures, impacted
trips are defined as trips taken in 2009 that landed at least one
summer flounder smaller than 21.5 inches (54.61 cm), landed more than
two summer flounder, or landed summer flounder during closed seasons.
The analysis concluded that implementation of precautionary default
measures could affect 0.63 percent of the party/charter vessel trips in
the Northeast, including those trips where no summer flounder were
caught.
The impacts of Summer Flounder Alternative 2 for coastwide
measures, which would be implemented by NMFS if conservation
equivalency is disapproved in the final rule, i.e., a 19.5-inch (49.53-
cm), minimum fish size, a two-fish possession limit, and a fishing
season from May 1 through September 30, were evaluated in the Council's
analysis. Impacted trips were defined as individual angler trips taken
aboard party/charter vessels in 2009 that landed at least one summer
flounder smaller than 19.5 inches (49.53 cm), that landed more than two
summer flounder or landed summer flounder during closed seasons. The
analysis concluded that the measures would affect 0.56 percent of the
party/charter vessel trips in the Northeast.
Continuation of the summer flounder coastwide management measures
(i.e., a 19.5-inch (49.53-cm) minimum fish size, two-fish possession
limit, and a May 1 through September 1 fishing season) is expected to
constrain 2010 landings to the recreational harvest limit; however,
continuation of those measures would be more restrictive than necessary
under the summer flounder rebuilding plan requirement established 2010
recreational harvest limit.

Impacts of Scup Alternatives

The proposed action for the scup recreational fishery would
implement Federal coastwide management measures throughout the EEZ. As
described earlier in the preamble, a conservation equivalent program is
utilized by the Commission to manage state waters. Federally permitted
charter/party permit holders and recreational vessels fishing for scup
in the EEZ then would be subject to the recreational fishing measures
implemented by NMFS; charter/party vessels participating solely in
state waters without a Federal permit would be subject to the
provisions adopted by the Commission; federally permitted vessels
participating in both state and Federal waters would be subject to the
more restrictive of the two measures implemented to manage the 2010
scup recreational fishery.
Scup Alternative 1 (an 11.0-inch (27.94-cm) minimum fish size, a
10-fish per person possession limit, and open seasons of January 1
through February 29 and June 12 through September 26) is projected to
reduce scup landings in 2010 by 35 percent from 2009 levels, assuming
comparable measures in both state and Federal waters. As explained
elsewhere in the preamble, state and Federal measures are expected to
differ; however, very little of the scup recreational harvest occurs in
Federal waters of the EEZ. Affected trips under Scup Alternative 1 were
defined as trips taken in 2009 that landed at least one scup smaller
than 11.0 inches (27.94 cm), landed more than 10 scup, or landed scup
during the closed seasons (March 1-June 12 and September 27-December
31). Analysis concluded that 2.15 percent of federally permitted party/
charter vessel trips could be affected by this alternative. This
alternative is more restrictive than is required for 2010.
The non-preferred scup coastwide alternative (Scup Alternative-2;
10.5-inch (26.67-cm) minimum fish size, 15-fish per person possession
limit, and open seasons of January 1 through February 29 and October 1
through October 15) is not projected to achieve the necessary
conservation required for the 2010 scup recreational fishery. Thus,
Scup Alternative 2 is inconsistent with the goals and objectives of the
FMP and the Magnuson-Stevens Act.
Scup Alternative 3 measures (a 10.5-inch minimum fish size, 10 fish
per person possession limit, and fishing seasons June 6-September 26)
are expected to constrain landings to the 2010 recreational harvest
limit if comparable measures are utilized in state waters. However, as
noted elsewhere in the preamble, the Commission is likely to implement
more liberal measures in state waters that may result in the 2010
recreational

[[Page 22093]]

harvest limit being exceeded, regardless of what measures are taken for
Federal waters-including closure of Federal waters of the EEZ. Affected
trips under Scup Alternative 3 were defined as trips taken in 2009 that
landed at least one scup smaller than 10.5 inches, landed more than 7
but less than 10 scup, or landed scup in the closed seasons. The
analysis concluded that this alternative could impact 2.24 percent of
Federally permitted party/charter vessel trips in 2009, if implemented.

Impacts of Black Sea Bass Alternatives

The proposed action for the black sea bass recreational fishery
would limit coastwide catch to 1.83 million lb (830 mt) by imposing
coastwide Federal measures throughout the EEZ. The impact of Black Sea
Bass Alternative 1 (a 12.5-inch (31.75-cm) minimum fish size, a 25-fish
per person possession limit, and an open season of June 1-30 and
September 1-30), is projected to reduce black sea bass landings by 66
percent in 2010 from 2009 levels. This is more restrictive than
necessary, but would likely ensure that landings remain below the 2010
recreational harvest limit. Impacted trips were defined as trips taken
in 2009 that landed at least one black sea bass smaller than 12.5
inches (31.75 cm), landed more than 25 black sea bass, or landed black
sea bass during the proposed closed seasons (January 1-May 31 and
October 1-December 21). Analysis concluded that 6.44 percent of
federally permitted party/charter vessel trips could be affected by
this alternative.
The non-preferred black sea bass coastwide alternative for status
quo (Black Sea Bass Alternative 2; 12.5-inch (31.75-cm) minimum fish
size, 25-fish per person possession limit, and no closed season) is not
expected to constrain 2010 landings to the recreational harvest limit;
therefore, continuation of those measures in Federal waters would be
inconsistent with the FMP and the Magnuson-Stevens Act.
Black Sea Bass Alternative 3 (a 12.5-inch (31.75-cm) minimum fish
size, 10-fish per person possession limit, and May 22-September 12
fishing season), would reduce landings by 44 percent. Implementation of
this alternative would result in a greater reduction than is required
for the 2010 recreational black sea bass fishery.
Black Sea Bass Alternative 4, (a 12.5-inch (31.75-cm) minimum fish
size, 25-fish per person possession limit, and May 22-August 8 and
September 4-October 4 fishing seasons), is expected to reduce landings
by 44 percent from 2009 levels. Affected trips are defined as trips
taken in 2009 that landed one black sea bass smaller than 12.5 inches,
landed more than 25 black sea bass, or landed black sea bass during
closed seasons. Analysis concluded that 3.88 percent of Northeast
party/charter trips could be affected by the measures of Black Sea Bass
Alternative 4. The Council concluded that the different seasons and
possession limits proposed under Alternative 4 provide a lesser
negative impact than do the measures of Alternative 3, which is also
projected to achieve the currently required 44-percent reduction in
landings.
NMFS may consider further liberalization of the 2010 black sea bass
fishing season utilized in concert with a 12.5-inch (31.75-cm) minimum
fish size, 25-fish per person possession limit if analysis of final
2009 data indicate that action is justified. If such liberalization
occurs with the addition of fishing days in either the August 9-
September 3 closed season or after October 5, the impact to party/
charter vessels would be further reduced.

Potential 2010 Regional Economic Impact Analysis Summary

Regionally, projected federally permitted party/charter revenue
losses in 2010 range from $6.4 million to $21.9 million in sales, $2.1
to $7.3 million in income, and between 128 and 437 jobs, if a 25-
percent reduction in the number of affected trips occurs. The estimated
losses are approximately twice as high if a 50-percent reduction in
affected trips is assumed to occur. Potential revenue losses in 2010
could differ for federally permitted party/charter vessels that land
more than one of the regulated species. The cumulative maximum gross
revenue loss per vessel varies by the combination of permits held and
by state. All 24 potential combinations of management alternatives for
summer flounder, scup, and black sea bass are predicted to affect
party/charter vessel revenues to some extent in all of the Northeast
coastal states. Although potential losses were estimated for party/
charter vessels operating out of ME and NH, these results are
suppressed for confidentiality purposes. Average party/charter losses
for federally permitted vessels operating in the remaining states are
estimated to vary across the 24 combinations of alternatives. For
example, in NY, average losses are predicted to range from a high of
$5,990 to a low of $1,474 per vessel, assuming a 25-percent reduction
in effort, as described above. Average gross revenue losses per vessel
under each of the 24 combinations of alternatives were generally
highest in NC followed by MA, NY, MD, NJ, RI, VA, CT then DE. Across
states, average gross projected revenue losses range from a low of $399
per vessel in DE to $44,434 in NC.

Summary

The 2010 recreational harvest limits for summer flounder, scup, and
black sea bass are 20-, 16-, and 60-percent higher, respectively, than
the recreational harvest limits for 2009. However, current projection
estimates of 2009 recreational landings indicate that scup will exceed
the 2009 recreational harvest limit by 80 percent, and black sea bass
landings will exceed the recreational harvest limit by 190 percent,
based on data through MRFSS Waves 1-4. No overages are projected in the
2009 summer flounder recreational fishery.
As a result, the proposed recreational management measures for
summer flounder in the Commission's conservation equivalency are likely
to be similar or slightly more liberal for 2010 (i.e., either smaller
minimum fish size, higher possession limits, and/or longer fishing
seasons) under the proposed conservation equivalency system (Summer
Flounder Alternative 1) than those in place in 2009. If the Commission
approves state-developed measures as conservational equivalent to the
coastwide measures, measures for Federal waters adopted by waiving
Sec. 648.4(b) may also be similar or slightly liberal for 2010 if NMFS
approves conservation equivalency in the final rule.
The proposed measures for both scup and black sea bass are more
restrictive than the measures in place for 2009.
The proposed management measures, or management system in the case
of conservation equivalency, were chosen because they allow for the
maximum level of recreational landings, while allowing the NMFS to
achieve the objectives of the FMP. Summer flounder conservation
equivalency permits states to implement management measures tailored,
to some degree, to meet the needs of their individual recreational
fishery participants, provided the level of reduction is equal to the
overall reduction needed coastwide, consistent with Framework
Adjustment 2 to the FMP.
The proposed measures for scup are expected to achieve the required
reduction in 2010 landings from 2009 levels, provided that comparable
state measures are implemented through the Commission. Because it
appears likely that the 2010 Commission measures may differ from
Federal measures, NMFS will consider public comment

[[Page 22094]]

and more closely examine the Commission measures to determine the
likelihood that overfishing could occur as a result of the combined
proposed Federal and Commission measures before publishing a final
rule. The majority of scup recreational harvest occurs within state
waters.
The proposed black sea bass management measures were selected
because they are the only set of measures proposed by the Council that
are projected permit the maximum amount of landings under the 2010
recreational harvest limit. As stated elsewhere in the preamble, NMFS
will consider final 2009 landings data and public comment, and may
extend the 2010 black sea bass fishing season, consistent with measures
designed to achieve the 2010 recreational harvest limit, in the final
rule.
There are no new reporting or recordkeeping requirements contained
in any of the alternatives considered for this action.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: April 22, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

Authority: 16 U.S.C. 1801 et seq.
2. Section 648.102 is revised to read as follows:

Sec. 648.102 Time restrictions.

Unless otherwise specified pursuant to Sec. 648.107, vessels that
are not eligible for a moratorium permit under Sec. 648.4(a)(3) and
fishermen subject to the possession limit may fish for summer flounder
from May 1 through September 30. This time period may be adjusted
pursuant to the procedures in Sec. 648.100.
3. In Sec. 648.103, paragraph (b) is revised to read as follows:

Sec. 648.103 Minimum fish sizes.

* * * * *
(b) Unless otherwise specified pursuant to Sec. 648.107, the
minimum size for summer flounder is 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.
* * * * *
4. In Sec. 648.105, the first sentence of paragraph (a) is revised
to read as follows:

Sec. 648.105 Possession restrictions.

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

Sec. 648.107 Conservation equivalent measures for the summer flounder
fishery.

(a) The Regional Administrator has determined that the recreational
fishing measures proposed to be implemented by Massachusetts through
North 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), 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.
6. 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.
7. 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.***
* * * * *
8. 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 August
8 and September 4 through October 4, unless this time period is
adjusted pursuant to the procedures in Sec. 648.140.

[FR Doc. 2010-9729 Filed 4-26-10; 8:45 am]
BILLING CODE 3510-22-S