Fisheries of the Northeastern United States; Recreational Management Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing Year 2009, 30002-30011 [E9-14877]
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Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations
the Edges seasonal-area closure
consistent with the intent of
Amendment 30B. The Edges seasonalarea closure prohibits fishing for any
species under Council jurisdiction from
January 1 through April 30 each year.
This closure creates a larger contiguous
area within which fishing activity and
fishing mortality will be reduced. This
will provide additional protection for
spawning aggregations of various
grouper species some of which are
experiencing overfishing, benefit other
reef fish undergoing overfishing, and
facilitate more effective enforcement.
Additional rationale for the measures
contained in Amendment 30B was
correctly stated in the preamble to the
Amendment 30B proposed rule (73 FR
68390, November 18, 2008) and in the
amendment and is not repeated here.
Comments and Responses
NMFS received one comment on the
proposed rule from a recreational
fisherman that was beyond the scope of
this rulemaking. Therefore no response
has been provided.
Change from the Proposed Rule
In § 622.2, this rule corrects a
typographical error in the spelling of the
species name for Caribbean queen
conch. This correction is unrelated to
the actions taken via Amendment 30B.
Classification
The Administrator, Southeast Region,
NMFS, determined that this final rule is
necessary for the conservation and
management of the Gulf reef fish fishery
and is consistent with the MagnusonStevens Act and other applicable laws.
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
NMFS prepared a Final
Environmental Impact Statement (FEIS)
for Amendment 30B. The FEIS was
published on October 24, 2008 (73 FR
63470).
NMFS prepared a FRFA for
Amendment 30B. The FRFA
incorporates the initial regulatory
flexibility analysis (FRFA), 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
actions, including the action in this
rule. A summary of the FRFA is
provided in the final rule for
Amendment 30B published on April 16,
2008 (73 FR 68390), and is not repeated
here. A copy of the full analysis is
available from NMFS (see ADDRESSES).
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List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico,
Reporting and recordkeeping
requirements, Virgin Islands.
Dated: June 18, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR part 622 is amended
as follows:
■
PART 622—FISHERIES OF THE
CARIBBEAN, GULF, AND SOUTH
ATLANTIC
1. The authority citation for part 622
continues to read as follows:
■
Authority: 16 U.S.C. 1801 et seq.
such possession aboard a vessel in
transit with fishing gear stowed as
specified in paragraph (k)(4) of this
section. The provisions of this
paragraph, (k)(3), do not apply to highly
migratory species.
*
*
*
*
*
(5) Within the Madison and Swanson
sites and Steamboat Lumps, during May
through October, surface trolling is the
only allowable fishing activity. * * *
*
*
*
*
*
[FR Doc. E9–14881 Filed 6–23–09; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
2. In § 622.2, the definition of
‘‘Caribbean queen conch or queen
conch’’ is revised to read as follows:
50 CFR Part 648
§ 622.2
RIN 0648–AX69
■
Definitions and acronyms.
*
*
*
*
*
Caribbean queen conch or queen
conch means the species, Strombus
gigas, or a part thereof.
*
*
*
*
*
■ 3. In § 622.34, the introductory
heading of paragraph (k), paragraphs
(k)(2), (k)(3), and the first sentence of
paragraph (k)(5) are revised and
paragraph (k)(1)(iii) is added to read as
follows:
§ 622.34 Gulf EEZ seasonal and/or area
closures.
*
*
*
*
*
(k) Closure provisions applicable to
the Madison and Swanson sites,
Steamboat Lumps, and the Edges.
(1) * * *
(iii) The Edges is bounded by rhumb
lines connecting, in order, the following
points:
Point
West long.
28°51′
28°51′
28°14′
28°14′
28°51′
A
B
C
D
A
North lat.
85°16′
85°04′
84°42′
84°54′
85°16′
(2) Within the Madison and Swanson
sites and Steamboat Lumps, possession
of Gulf reef fish is prohibited, except for
such possession aboard a vessel in
transit with fishing gear stowed as
specified in paragraph (k)(4) of this
section.
(3) Within the Madison and Swanson
sites and Steamboat Lumps during
November through April, and within the
Edges during January through April, all
fishing is prohibited, and possession of
any fish species is prohibited, except for
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[Docket No. 090211163–9795–02]
Fisheries of the Northeastern United
States; Recreational Management
Measures for the Summer Flounder,
Scup, and Black Sea Bass Fisheries;
Fishing Year 2009
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
SUMMARY: NMFS implements
recreational management measures for
the 2009 summer flounder and black sea
bass fisheries and notifies the public
that the recreational management
measures for the scup fishery remain the
same as in 2008. These actions are
necessary to comply with regulations
implementing the Summer Flounder,
Scup, and Black Sea Bass Fishery
Management Plan (FMP) and to ensure
compliance with the Magnuson–Stevens
Fishery Conservation and Management
Act (Magnuson–Stevens Act). The intent
of these measures is to prevent
overfishing of the summer flounder,
scup, and black sea bass resources.
DATES: Effective July 24, 2009.
ADDRESSES: Copies of supporting
documents used by the Summer
Flounder, Scup, and Black Sea Bass
Monitoring Committees and of the
Environmental Assessment, Regulatory
Impact Review, and Initial Regulatory
Flexibility Analysis (EA/RIR/IRFA) are
available from Daniel Furlong,
Executive Director, Mid–Atlantic
Fishery Management Council, Room
2115, Federal Building, 300 South New
Street, Dover, DE 19901–6790. The EA/
RIR/IRFA is also accessible via the
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Internet at https://www.nero.noaa.gov.
The Final Regulatory Flexibility
Analysis (FRFA) consists of the IRFA,
public comments and responses
contained in this final rule, and the
summary of impacts and alternatives
contained in this final rule. Copies of
the small entity compliance guide and
EA/RIR/IRFA document are available
from Patricia A. Kurkul, Regional
Administrator, Northeast Region,
NMFS, 55 Great Republic Drive,
Gloucester, MA 01930–2276.
FOR FURTHER INFORMATION CONTACT:
Michael Ruccio, Fishery Policy Analyst,
(978) 281–9104.
SUPPLEMENTARY INFORMATION:
Background
The summer flounder, scup, and
black sea bass fisheries are managed
cooperatively by the Atlantic States
Marine Fisheries Commission
(Commission) and the Mid–Atlantic
Fishery Management Council (Council),
in consultation with the New England
and South Atlantic Fishery Management
Councils. The FMP and its
implementing regulations, which are
found at 50 CFR part 648, subparts A
(general provisions), G (summer
flounder), H (scup), and I (black sea
bass), describe the process for specifying
annual recreational management
measures that apply in the Exclusive
Economic Zone (EEZ). The states
manage these fisheries within 3 nautical
miles of their coasts, under the
Commission’s plan for summer
flounder, scup, and black sea bass. The
Federal regulations govern fishing
activity in the EEZ, as well as vessels
possessing a Federal fisheries permit,
regardless of where they fish.
The 2009 coastwide recreational
harvest limits, after deduction of
research set–aside (RSA), are 7,158,600
lb (3,247 mt) for summer flounder;
2,585,952 lb (1,173 mt) for scup; and
1,137,810 lb (516 mt) for black sea bass.
The 2009 quota specifications, inclusive
of the recreational harvest limits, were
previously determined to be consistent
with the 2009 target fishing mortality
rate (F) for summer flounder and the
target exploitation rates for scup and
black sea bass.
The proposed rule to implement
annual Federal recreational measures
for the 2009 summer flounder, scup,
and black sea bass fisheries was
published on April 1, 2009 (74 FR
14760), and contained management
measures (minimum fish sizes,
possession limits, and fishing seasons)
intended to keep annual recreational
landings from exceeding the specified
harvest limits.
2009 Recreational Management
Measures
Additional discussion on the
development of the recreational
management measures appeared in the
preamble of the proposed rule and is not
repeated here. All minimum fish sizes
30003
discussed below are total length
measurements of the fish, i.e., the
straight–line distance from the tip of the
snout to the end of the tail while the fish
is lying on its side. For black sea bass,
total length measurement does not
include the caudal fin tendril. All
possession limits discussed below are
per person.
Summer Flounder Management
Measures
Based on the recommendation of the
Commission, the NMFS Northeast
Regional Administrator finds that the
recreational summer flounder fishing
measures proposed to be implemented
by the states of Massachusetts through
North Carolina for 2009 are the
conservation equivalent of the season,
minimum size, and possession limit
prescribed in §§ 648.102, 648.103, and
648.105(a), respectively. According to
§ 648.107(a)(1), vessels subject to the
recreational fishing measures of this
part and landing summer flounder in a
state with an approved conservation
equivalency program shall not be
subject to the more restrictive Federal
measures, and shall instead be subject to
the recreational fishing measures
implemented by the state in which they
land. Section 648.107(a) has been
amended accordingly. The management
measures will vary according to the
state of landing, as specified in the
following table.
TABLE 1 — 2009 STATE RECREATIONAL MANAGEMENT MEASURES FOR SUMMER FLOUNDER
Minimum Fish Size
inches
cm
Possession Limit
(number of fish)
MA
18.5
46.99
5
July 1 through August 13
RI
21.0
53.34
6
June 17 through December 31
CT
19.5
49.53
3
June 15 through August 19
NY
21.0
53.34
2
May 15 through June 15 and
July 3 through August 17
NJ
18.0
45.72
6
May 23 through September 4
DE
18.5
46.99
4
January 1 through December 31
MD1
18.0
45.72
3
April 15 through September 13
VA
19.0
48.26
5
January 1 through December 31
15.0
38.10
8
January 1 through December 31
State
NC2
1Chesapeake
Fishing Season
Bay, MD – a 16.5–in (41.91–cm) minimum fish size, a 1–fish possession limit, and a fishing season of April 15–September 13
applies.
2Pamlico Sound , NC – No person may possess flounder less than 14.0 in (35.56 cm) total length (TL) taken from internal waters for recreational purposes west of a line beginning at a point on Point of Marsh in Carteret County at 35° 04.6166′ N lat.–76° 27.8000′ W long., then
running northeasterly to a point at Bluff Point in Hyde County at 35° 19.7000′ N lat.–76° 09.8500′ W long. In Core and Clubfoot creeks, the Highway 101 Bridge constitutes the boundary north of which flounder must be at least 14.0 (35.56 cm) in TL.
2Pamlico Sound , NC – No person may possess flounder less than 14.0 in (35.56 cm) total length (TL) taken from internal waters for recreational purposes west of a line beginning at a point on Point of Marsh in Carteret County at 35° 04.6166′ N lat.–76° 27.8000′ W long., then
running northeasterly to a point at Bluff Point in Hyde County at 35° 19.7000′ N lat.–76° 09.8500′ W long. In Core and Clubfoot creeks, the Highway 101 Bridge constitutes the boundary north of which flounder must be at least 14.0 (35.56 cm) in TL.
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Albemarle Sound, NC – No person may possess flounder less than 14.0 in (35.56 cm) TL taken from internal waters for recreational purposes
west of a line beginning at a point 35° 57.3950′ N lat.– 76° 00.8166′ W long. on Long Shoal Point; running easterly to a point 35° 56.7316′ N
lat.–75° 59.3000′ W long. near Marker ‘‘5’’ in Alligator River; running northeasterly along the Intracoastal Waterway to a point 36° 09.3033′ N
lat.–75° 53.4916′ W long. near Marker ‘‘171’’ at the mouth of North River; running northwesterly to a point 36° 09.9093′ N lat.–75° 54.6601′ W
long. on Camden Point.
Browns Inlet South, NC – No person may possess flounder less than 14.0 in (35.56 cm) TL in internal and Atlantic Ocean fishing waters for
recreational purposes west and south of a line beginning at a point 34° 37.0000′ N lat.–77° 15.000′ W long.; running southeasterly to a point 34°
32.0000′ N lat.–77° 10.0000′ W long.
Scup Management Measures
Table 2 contains the coastwide
Federal measures for scup in effect for
2008 and codified. The 2009 measures
are unchanged from those at 50 CFR
part 648, subpart I, and are presented in
Table 2.
TABLE 2 — 2009 SCUP RECREATIONAL MANAGEMENT MEASURES
Minimum Fish Size
Fishery
Possession Limit
inches
10.5
Scup
26.67
Fishing Season
cm
The scup fishery in state waters will
be managed under a regional
conservation equivalency system
developed through the Commission over
the last 7 years. Because the Federal
FMP does not contain provisions for
conservation equivalency, and states
may adopt their own unique measures,
15 fish
the Federal and state recreational scup
management measures will differ for
2009.
Black Sea Bass Management Measures
This rule implements the black sea
bass measures contained in the April 1,
2009, proposed rule: An increase in
January 1 through February 28, and
October 1 through October 31
minimum fish size from 12.0 to 12.5
inches (30.48 cm to 31.75 cm) and
status quo measures for possession limit
(25 fish per person) and fishing season
(January 1–December 31, 2009). Table 3
contains the 2009 coastwide Federal
measures for black sea bass.
TABLE 3 — 2009 BLACK SEA BASS RECREATIONAL MANAGEMENT MEASURES
Minimum Fish Size
Fishery
Possession Limit
inches
Black Sea Bass
12.5
31.75
Comments and Responses
Four comment letters were received
regarding the proposed recreational
management measures (74 FR 14760,
April 1, 2009). Comments were received
from two organizations: One from the
New York State Department of
Environmental Conservation’s (NY DEC)
Bureau of Marine Fisheries; and the
other on behalf of a recreational fishing
trade and advocacy organization, the
United Boatmen of New York (UBNY).
The other two comments were from
private citizens. One private citizen
commenter expressed general
displeasure at how Total Allowable
Landings (TALs) and other quotas are
established but did not provide specific
comment on the recreational
management measures. No specific
response is provided to this individual’s
comments, as the relevance to the
recreational management measures
could not be ascertained.
The materials submitted by UBNY did
not make specific comments about the
proposed 2009 recreational management
measures. The materials submitted
reference the comments submitted by
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Fishing Season
cm
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25 fish
NY DEC and highlight many similar
issues specifically commented on by NY
DEC. Therefore, NMFS considers the
response to the NY DEC comments as
responsive to the UBNY concerns as
well. Many of the issues raised by
commenters for the 2009 recreational
management measures are identical to
those raised for the 2008 recreational
management measures and are, in turn,
the same as the arguments made by
plaintiffs, which include the NY DEC
and UBNY, in an ongoing lawsuit
against the Secretary of Commerce
(Secretary) for implementation of the
2008 summer flounder measures.1
Comment 1: The NY DEC alleged that
state–by–state conservation equivalency
violates National Standard 2 of the
Magnuson–Stevens Act, which requires
conservation and management actions
to be based upon the best available
scientific information.
Specifically, the commenter alleged
the following ways that state–by–state
conservation equivalency violates
1State of New York et al. v. Gutierrez et al. Civil
Action No. 08–cv–02503–CPS
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January 1 through December 31
National Standard 2: (a) The use of
Marine Recreational Fishery Statistical
Survey (MRFSS) data to develop state–
by–state conservation equivalency
measures has inadequate resolution for
state–level monitoring and management.
The comment cites the 2006 NOAA–
commissioned National Academy of
Sciences independent review of MRFSS
that stated monitoring fisheries at a state
level is a finer stratification than
originally intended for the data
collected, and that the existing sampling
strata may be too coarse a resolution to
generate estimates that are adequate for
management requirements; (b) the use of
1998 as a landings baseline as the
starting point for landings reductions is
outdated, inadequate, and flawed; (c)
state–by–state conservation equivalency
is not responsive to changes that have
occurred in stock status wherein the
summer flounder stock has redistributed
and is composed of larger, older fish,
particularly adjacent to New York State;
and (d) the level of angler effort and
distribution has changed substantially
since 1998, and MRFSS data would
support increasing the percentage of
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summer flounder recreational landings
allocated to New York.
Response: NMFS disagrees that
managing the summer flounder
recreational fishery using state–by–state
conservation equivalency is a violation
of National Standard 2. The following
responds to the specific points raised in
the above comment:
a. The information provided by
MRFSS, along with additional
information provided by individual
states and fishery independent surveys,
is sufficient and appropriate to manage
the recreational summer flounder
fishery on a state–by–state basis.
The analytical process for 2009 was
not dissimilar to that used in 2008: Both
the Council and Commission considered
the precision of MRFSS estimates at a
state–by–state level; discussed the
adequacy of, and equity issues related
to, the 1998 landings baseline; evaluated
the performance of conservation
equivalency in the prior year, including
the ‘‘performance–based adjustment
factor’’ implemented for 2008;
contemplated both coastwide and
regional approaches to management;
and, in conclusion, recommended the
continued use of conservation
equivalency with new modifications to
NMFS for 2009.
The Commission established a
requirement for 2009 that at least 50
percent of the necessary reductions for
the fishing year be achieved by season
closures rather than by imposing more
stringent size or bag limits. This system
modification was created by the
Commission in response to the 2008
required ‘‘performance–based
adjustment factor’’ having poor success
in constraining landings to the required
levels. The Commission requirement to
call for a substantive adjustment to
fishing seasons to achieve the desired
individual state landing reductions is
consistent with recommendations from
the Council’s Summer Flounder
Monitoring Committee and
Commission’s Summer Flounder
Technical Committee, both scientific
advisory bodies to the Council and
Commission, respectively, and NMFS.
The recommendation for season
closures is based on the premise that
modification to seasons, either through
periodic in–season closures or
shortened overall seasons, are better
suited to ensure a reduction in landings
than are either changes in minimum fish
size or possession limits. Fishery
closures are noted by the Monitoring
Committee and Technical Committee as
having more significant compliance
rates and, thus, result in near–zero
landings when applied. Modifications to
minimum fish size and possession
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limits have demonstrated higher levels
of non–compliance that minimize their
effectiveness. Additionally, inter–
annual fish growth may result in
diminished effectiveness of minimum
fish sizes if that growth keeps pace with
increases in size. The requirement to
adjust seasons to better ensure landing
reductions represents further refinement
by the Commission to ensure that state–
by–state conservation equivalency
functions as envisioned and achieves
the required conservation objectives.
Framework Adjustment 2 to the FMP
(66 FR 36208, July 11, 2001) states that
conservation equivalency may only be
used by area (i.e., states) if the
proportional standard error of the
MRFSS landings estimate, by area, is
less than 30 percent. On a state–by–state
basis, the 2008 MRFSS estimates of
landings utilized in establishing the
2009 conservation equivalency program
have proportional standard errors
ranging from a high of 26.3 percent for
Massachusetts to a low of 10.8 percent
for New York. This is compared to 8.3
percent for the Mid–Atlantic states
(New York to Virginia), combined, and
12.1 percent for the New England states
(Maine to Connecticut) combined.
While the proportional standard error is
lower when dealing with larger data
aggregations, the error levels associated
with individual states are well within
the acceptable error levels specified in
Framework Adjustment 2 to the FMP,
which implemented the regulatory
structure to permit management of the
summer flounder recreational fishery
through conservation equivalency.
As was outlined in the 2008 response
to comments (May 23, 2008; 73 FR
29990), NMFS has been aware of
limitations in the MRFSS design and
data for some time. It is, in fact, why
NOAA commissioned the review by the
National Academy of Sciences. While
the review pointed out numerous areas
for improvement of the MRFSS
sampling design, nowhere in the
assessment did the National Academy of
Sciences’ reviewers indicate that use of
the MRFSS data at smaller spatial scales
(i.e., state–by–state) was an
inappropriate use of the data. Clearly,
the precision of the landings estimates
are improved when at an aggregate,
coastwide level, but the use of the data
to establish catch at a state level is not
a violation of National Standard 2. The
proportional standard error remains
acceptable at the state–by–state level of
resolution. The Commission’s Technical
Committee explored using the upper
bound of the proportional standard error
for each state’s landings estimate as a
means to make conservation
equivalency more robust in 2008. The
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Technical Committee found that such
an approach was impracticable, as it
would have required many states to
make downward harvest adjustments in
years when no such adjustment was
necessary. These considerations of the
accuracy and precision of MRFSS data
continue to be true for the 2009 state–
by–state conservation equivalency
program. Moreover, the Commission has
modified the conservation equivalency
approach for 2009, attempting to further
ensure that the system functions as
envisioned.
NMFS does not disagree that the use
of current MRFSS methodology and
data has moved well beyond their
originally intended purpose. However,
as has often been stated in the past,
MRFSS continues to be the only source
of data currently available to assess the
effort, harvest, and discards in
recreational fisheries at any spatial
scale. NMFS understands the
frustrations and disagreements that arise
with the MRFSS data set when it is used
for certain management purposes and is
working to improve the quality and
utility of data collected for recreational
fisheries management. Were MRFSS
data not utilized, there would be no
alternative means to quantify
recreational harvest, participation
levels, or to assess management
measures on a coastwide or state–by–
state basis for all Atlantic states in the
Northeast Region. Clearly, this would
present substantial complications to
effectively managing the summer
flounder recreational fishery and the
Magnuson–Stevens Act required
objective of rebuilding the summer
flounder stock. NMFS’s development
and implementation efforts for the
Marine Recreational Information
Program (MRIP), designed to address the
National Academy of Sciences
recommendations, fishery management
needs, and to be responsive to input
from recreational anglers, are ongoing.
MRIP is the revised recreational survey
methodology and data collection
designed to be responsive to the
National Academy of Sciences peer–
review recommendations. Detailed
information on the MRIP program can
be found on the NMFS Office of Science
and Technology web site: https://
www.st.nmfs.noaa.gov/mrip/. Some
aspects of the MRIP program will
become effective in the 2009 fishing
year. In addition, a national saltwater
angler registry, as required by the
Magnuson–Stevens Reauthorization Act
of 2006, will become effective on
January 1, 2010. This registry will
greatly assist recreational fishery data
collection efforts.
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b. The conservation equivalency
system was implemented in 2001 by
Framework Adjustment 2 to the Federal
FMP (66 FR 36208, July 11, 2001) and
the Commission’s companion action
Addendum III to the Commission’s
Summer Flounder, Scup, and Black Sea
Bass FMP. Under this process, states are
allowed to design management
measures to achieve their specified
recreational management targets which,
in turn, ensures that the coastwide
recreational harvest limit will be
achieved. NMFS has implemented
conservation equivalency, as
recommended by the Council and
Commission, in each year since 2001.
There are New York representatives on
both the Council and Commission.
The overarching process of
conservation equivalency establishes a
set of guidelines for states to tailor
management measures that meet the
conservation objectives of the FMP
rather than being subject to a one–size–
fits–all coastwide approach. The
conservation equivalency framework is
uniform and applied consistently for all
states, without differentiating among
U.S. citizens, nationals, resident aliens,
or corporations on the basis of their
state of residence. Individual states are
free to develop, based on the fishery
practices in their state, any combination
of minimum fish size, possession limit,
and fishing season to ensure that, when
paired with the remaining Atlantic
coastal states, the coastwide recreational
harvest limit will not be exceeded. Each
state’s circumstance with respect to
landings and overage is unique to that
state and argues against the application
of the same measures for each state. The
Commission’s Technical Committee
evaluates the proposed state measures
and, if sufficient, a recommendation to
adopt, as functionally equivalent, the
reviewed and approved measures is
forwarded by the Commission to NMFS
for implementation. This ensures that
the conservation objectives of the FMP
and the summer flounder rebuilding
program are met.
To achieve conservation equivalency,
the Commission, not NMFS, establishes
a base recreational allocation that each
state receives from the coastwide
recreational harvest limit and specifies
the percent reduction or liberalization
in landings each state’s measures must
meet for each year. The conservation
equivalency system does not result in a
direct distribution of fishing privileges
to individual states by NMFS. This
allocation is not earmarked solely for
the residents of an individual state;
rather, any landing made in the state in
question is counted against that state’s
recreational allocation. Fishery
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participants are free to participate in
multiple states, land in adjacent states,
etc., and are not discriminated against
based on their state of residence.
c. NMFS agrees that the status of the
summer flounder stock has changed
since 1998, as the stock has experienced
rebuilding toward the maximum
sustainable yield level. The summer
distribution of summer flounder is, as
stated by the commenters, primarily in
inshore areas from the Mid–Atlantic
Bight to southern New England. There
has been an increase in both fish ages
and sizes in the past decade. NMFS
reiterates what was stated in response to
comments in 2008: That catch levels
(i.e., quotas) are established annually
and that increases in stock size,
distribution, and increases in fish size
and age are all captured within the stock
assessment framework utilized to
generate quota–related information. The
issue raised by NY DEC is one of
allocation that functions separately from
stock status. (See response to Comment
2 for additional information.)
The Commission has continued to
establish the basis for the state
recreational harvest allocations as the
percentage of 1998 coastwide
recreational landings by state. However,
the Commission is at liberty to revise or
amend these allocation percentages
independently of the Council and/or
NMFS as specific state recreational
fishery percent allocations are not
codified in the Federal regulations that
implement the conservation
equivalency program. The Commission
has had significant discussion in both
2007 and 2008 about reevaluating 1998
as the baseline year. In both years, the
Commission has elected to continue
using 1998 coastwide landings by state
as the baseline. The continued use of
1998 landings data by the Commission
was not arbitrary; the intent of 1998 as
the base allocation year was to establish
a reference against which the effects of
proposed regulations could be
effectively evaluated.
d. The Commission is at liberty to
explore modifications to state
allocations based on angler–related
statistics, number of anglers, or angler
effort. To date, the Commission has
elected to use the last year (1998) in
which consistent measures were applied
coastwide as the starting point for
annual allocations. NMFS has no
grounds to disapprove the
recommended 2009 conservation
equivalency measures recommended by
the Commission because one member
state of the Commission disagrees with
the allocation structure utilized to
derive equivalent measures. The amount
of fish provided each state from the
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overall recreational harvest limit is
wholly a function of the Commission
process.
For these reasons, NMFS contends
that implementing conservation
equivalency, as recommended by the
Council and Commission for 2009, does
not violate National Standard 4 or
National Standard 2 of the Magnuson–
Stevens Act.
Comment 2: The NY DEC also alleged
that state–by–state conservation
equivalency violates National Standard
4 of the Magnuson–Stevens Act, which
states that conservation and
management actions implemented by
NMFS shall not discriminate between
residents of different states. The
commenter raised concerns about
disparities that arise between adjacent
states’ management measures under the
state–by–state conservation equivalency
management system, specifically citing
the differences between 2009 New York
and adjacent New Jersey and
Connecticut measures. The commenter
asserts that such differences are highly
inequitable, unfair, and have no linkage
to conservation and recovery of summer
flounder. The commenter also stated
that the overages that have occurred in
New York waters in recent years are not
the result of cheating, but are a result of
recovery of summer flounder and
natural changes to the summer flounder
population. Thus, the commenter states,
New York is being punished unfairly for
conditions beyond its control.
Response: NMFS disagrees that state–
by–state conservation equivalency is a
violation of National Standard 4 for the
reasons outlined in response to
comment 1c. The recreational quotas
distributed to the states under the
Commission’s Interstate Summer
Flounder FMP are based on the
application of the same rule to each
state; individual state quotas are based
on the state’s share of the overall 1998
recreational catch of summer flounder.
Understandably, since recreational
landings varied in each state, state
recreation quotas derived from the
landings would vary as well. So too
would the measures in each state
developed to achieve the state’s
conservation equivalency with the
Federal coastwide measures adopted by
the Council and Commission as a non–
preferred alternative. In essence,
differing state measures are derived
from the application of the same rule to
each state and designed to achieve the
same result using varying quotas. The
application of the same rule to a number
of states that yields different results
among those states due to disparate
landing levels is consistent with
National Standard 4.
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NY DEC asserts that there is nothing
that can be done to control excessive
recreational harvest, given the large
number of anglers paired with
availability of large summer flounder in
New York waters, and further insinuates
that only a change in allocation will
provide relief to the continued annual
overages. The angler noncompliance
rate with the minimum fish sizes
established for New York has ranged
from 5 to 13 percent during the years
1999 to 2008. NMFS contends that there
are indeed measures that could be
undertaken that would ensure that New
York landings do not exceed their given
allocation in any given year: Closed
seasons during peak fishing seasons;
shortened overall seasons; consideration
of angler rates of noncompliance in
calculating effectiveness of proposed
measures; increases in enforcement
efforts; supplementation of MRFSS
collected data by state data–collection
programs; and use of a buffer to
sufficiently mitigate management
uncertainty when crafting recreational
management measures are all
approaches that have to date, gone
largely unused by NY DEC in
establishing recreational summer
flounder measures. NMFS contends that
New York must ensure responsible,
effective measures in 2009 to break the
cycle wherein landings targets are
consistently exceeded.
Comment 3: Comments by the NY
DEC on managing summer flounder as
a unit stock are similar to those
provided on the 2008 recreational
management. The comment suggests
that state–by–state conservation
equivalency violates National Standard
3 of the Magnuson–Stevens Act, which
requires individual fish stocks to be
managed as a unit throughout their
ranges, to the extent practicable. This
year, additional comments were added
regarding the scientific reasoning for
state–by–state management.
Response: NMFS disagrees with the
commenter, as the summer flounder
stock is managed as a single unit,
consistent with National Standard 3.
National Standard 3 does not require
that management measures within the
management unit be the same.
Management is cooperative among the
Commission, which represents
individual states in the management
unit, the Council, and NMFS. The stock
assessment conducted in support of
annual TAL setting is for the entire
Northeast Region management unit for
summer flounder, from Maine to North
Carolina. Catch limits for the
recreational and commercial fisheries
are established for the entire coast. The
overarching commercial TAL is
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managed on a state–by–state basis,
parsed by historic landings percentage
by each state. Conversely, the
recreational fishery may employ
coastwide measures, or regional or
state–by–state conservation equivalency
to achieve the coastwide recreational
harvest level. When state–by–state
conservation equivalency is utilized for
management, the individual state
management measures are structured to
achieve equivalency with the
overarching coastwide (i.e., single
management unit) recreational harvest
limit. Furthermore, the regulations
implementing National Standard 3 (50
CFR 600.320) clearly state that
management measures need not be
identical for each geographic area
within the management unit.
The comment that fish do not
recognize geopolitical boundaries is
often used as an argument against
management systems. The overarching
scientific approach for managing the
summer flounder stock has been
previously described. An annual catch
level is determined to ensure that
conservation objectives are met for the
year. From there, for summer flounder,
the overall catch level is parsed into
commercial and recreational sectors and
further subdivision to states. These
further subdivisions are not scientific in
nature, but are allocative, and there are
no requirements that the allocation be
inherently biologically based, provided
the sum of the allocations does not
exceed the annual science–based
conservation objective. As previously
described, the recreational state–by–
state allocation criteria utilized by the
Commission is based on the last year of
consistent coastwide measures (1998).
The Commission is free to revisit and
modify this allocation structure at any
time as the individual state recreational
harvest shares are not codified in
Federal regulation.
Comment 4: NY DEC has alleged that
state–by–state conservation equivalency
violates National Standard 6 of the
Magnuson–Stevens Act, which states
that conservation and management
measures shall take into account and
allow for variations among, and
contingencies in, fisheries, fishery
resources, and catches. The basis for the
commenter’s assertion is that
conservation equivalency does not
address a northward shift in summer
flounder stock distribution.
Response: NMFS disagrees and asserts
that the commenters have
misinterpreted the intent of National
Standard 6, which is to ensure that an
FMP management regime includes some
protection against uncertainties that
may arise. National Standard 6 directs
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30007
FMPs to have a suitable buffer, in favor
of conservation, to deal with
uncertainty, which may also be stated as
a conservative approach. Examples
provided in NMFS guidance on
National Standard 6 (50 CFR 600.336)
include reductions in optimum yield,
establishment of reserves, and
adjustable management techniques to
compensate for changes that occur
during a fishing year as suitable buffers
to mitigate uncertainty.
In regard to conservation equivalency,
a summer flounder stock assessment is
conducted annually, and fully accounts
for, among other things, stock
distribution, changes in stock size, and
fishery removals. The stock assessment
does fully account for changes in stock
dynamics and distribution in providing
the basis for setting the annual
coastwide TAL, which is then divided
among the recreational and commercial
fisheries.
Further, both the states and NMFS are
able to monitor recreational harvests
during the fishing season, and both can
take corrective or closure actions to
ensure that mortality objectives or
harvest targets are not exceeded. For
these reasons, NMFS finds that the use
of state–by–state conservation
equivalency complies with National
Standard 6 of the Magnuson–Stevens
Act.
Comment 5: NY DEC commented that
state–by–state conservation equivalency
does not appear to be conserving the
fishery and that coastwide measures
would make better use of the available
data and provide a new baseline year for
future landings reductions. NY DEC has
requested that NMFS implement
coastwide measures instead of the
Council and Commission’s preferred
alternative for state–by–state
conservation equivalency.
Response: NMFS has been continually
concerned with what was described by
NY DEC as the states’ practices of
adjusting recreational measures to
maximize harvest within the individual
state allocation or, more plainly stated,
conducting analysis that gets as close as
possible to the landings limit without
exceeding, on paper, said limit. Many of
NMFS’s concerns, raised in
correspondence from NMFS Northeast
Regional Administrator Patricia Kurkul
and former Assistant Administrator Dr.
William Hogarth, have been quoted
often in the NY DEC comments.
The conservation equivalency system
has not remained static since NMFS first
raised concerns that the system must be
improved to provide a higher likelihood
of constraining landings to the
established recreational harvest limit.
There have been positive advances in
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how the conservation equivalency
analysis is conducted and the
stipulations that the Commission has
required of member states, all of which
are designed to improve the
performance of the system and ensure
conservation objectives are met. NMFS
has given deference to the states through
the Commission process to continue to
explore measures that improve the
performance of conservation
equivalency, provided the requirements
of Framework Adjustment 2 to the FMP,
the overarching FMP regulations, the
Magnuson–Stevens Act, and other
applicable law are satisfied in so doing.
NMFS continues to encourage
individual states, though the
Commission, to conduct analyses that
provide a buffer between expected
landings and individual states landing
limits in the absence of more qualitative
means of improving conservation
equivalency.
As noted in the comment, the
Commission required a ‘‘performance–
based adjustment factor’’ for the 2008
fishery, as well as requiring the use of
a predicted average fish weight. This
system further reduced states’ 2008
targets by a factor that was derived by
taking the average of yearly harvest-totarget performance by state from 2001–
2007. As indicated in the comment by
NY DEC, this system did not ensure that
the 2008 recreational management
targets were not exceeded by a number
of states.
For 2009, the Commission is requiring
a new refinement to the conservation
equivalency system: States that have
required reductions to meet their 2009
landings targets must ensure that at least
half of the reduction is the result of
modification to fishing seasons. NMFS
contends that this is a continued
demonstration of the Commission’s
willingness to make substantive
improvements in the conservation
equivalency management system. Were
the ‘‘performance–based adjustment
factor’’ recommended for 2009 or no
modification of how states set minimum
fish size, possession limit, and fishing
season required by the Commission, the
approval of state–by–state conservation
equivalency would have been difficult
for NMFS to justify. This is because of
the past repetitive failures of the
unmodified conservation equivalency
program and NMFS’s need to rebuild
the summer flounder stock by 2013.
For NMFS to disapprove the Council’s
recommendation and substitute
alternative measures, in this case
coastwide management measures,
NMFS must reasonably demonstrate
that the recommended measures are
either inconsistent with applicable law
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or otherwise demonstrate that the
conservation objectives of the FMP will
not be achieved by implementing the
recommendation in question. NMFS
does not find the Council and
Commission’s recommendation are
legally suspect or incapable of achieving
the FMP’s conservation objectives in
light of the reduction in fishing season
mandated by the Commission for use in
2009.
However, NMFS remains concerned
that there is little margin for error in the
remaining 3 years of the summer
flounder rebuilding plan (2010–2012).
Therefore, recreational landings will be
monitored in season and, if necessary to
ensure the mortality objectives are not
compromised for 2009, an inseason
closure of the EEZ may occur. Any such
closure action would be announced
through multiple media outlets,
including publication of a notice in the
Federal Register.
Use of information on a coastwide
basis would improve the precision of
the MRFSS estimates and would, as
indicated by the commenters, provide a
new baseline year of landings for future
use. The level of precision provided
under state–by–state conservation
equivalency is not of insufficient
resolution for management (see
response to Comment 1) and, should
states have concerns about the precision
of landings estimates at a state level,
NMFS recommends establishing
recreational management measures that
provide a sufficient buffer to mitigate for
any loss of precision.
NMFS is implementing, through this
final rule, state–by–state conservation
equivalency as recommended by both
the Council and Commission for the
reasons previously outlined in the
preamble to this rule. Under
conservation equivalency, each state has
implemented a unique minimum fish
size, possession limit, and fishing
season tailored to ensure that these
measures result in recreational landings
equivalent to the coastwide recreational
harvest level.
Comment 6: NY DEC requested that
the 2008 landings estimate for New
York be adjusted from 600,000 fish to
565,000 fish. The change in number is
a result of the final 2008 MRFSS catch
data being available as opposed to the
estimated landings used during the
Council and Commission recreational
management measures development
discussion.
Response: The individual state
landings limits, including the percent
reduction from the previous year
landings estimate and target number of
fish to be landed, are specified through
the Commission process. Estimated
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landings are often utilized as final prior
year landings estimates are not available
until the first quarter of the following
year. The Commission’s Summer
Flounder Management Board would
need to approve measures for New York
designed to achieve any modified 2009
landings target. NMFS recommends that
NY DEC pursue this discussion with the
Commission and Summer Flounder
Management Board.
Comment 7: One commenter stated
that the 2009 recreational management
measures are unfair to the financial
lower class, further stating that if one
has money and he/she can buy a permit,
they can presumably participate in the
recreational fisheries for summer
flounder, scup, or black sea bass.
Response: The Council conducted
analysis consistent with Executive
Order 12898, which directs each Federal
agency to achieve environmental justice
as part of its mission by identifying and
addressing, as appropriate,
disproportionately high and adverse
human health or environmental effects
of its programs, policies, and activities
on minority populations and low–
income populations. Council analysis
indicated that 28 percent of marine
recreational anglers fish for reasons
other than recreation and one–third rely
on catching marine resources as a cost–
saving food source or supplement to
income. The black sea bass and scup
possession limits are unchanged for
2009. Under conservation equivalency
for summer flounder, the management
measures should permit the fishery to
operate in a manner that dissipates, to
the extent practicable, adverse effects on
the angling population while ensuring
that conservation objectives are met.
The Council concluded that, based on
this analysis contained in the EA/RIR/
IRFA document (see ADDRESSES for
information on obtaining the source
document), the actions of the 2009
recreational management measures were
not expected to cause
disproportionately high adverse or
economic effects on low–income
populations.
Regarding the commenter’s second
point, there are currently no Federal
permit fees for private anglers or for
individuals to obtain a Federal party/
charter permit.
Classification
The Administrator, Northeast Region,
NMFS, determined that this final rule
implementing the 2009 summer
flounder, scup, and black sea bass
recreational management measures is
necessary for the conservation and
management of the summer flounder,
scup, and black sea bass fisheries, and
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that it is consistent with the Magnuson–
Stevens Act and other applicable laws.
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
Included in this final rule is the FRFA
prepared pursuant to 5 U.S.C. 604(a).
The FRFA incorporates the economic
impacts described in the IRFA, a
summary of the significant issues raised
by the public comments in response to
the IRFA, NMFS’s responses to those
comments, and a summary of the
analyses completed to support the
action. Copies of the EA/RIR/IRFA and
supplement are available from the
Council and NMFS (see ADDRESSES).
Final Regulatory Flexibility Analysis
Statement of Objective and Need
A description of the reasons why this
action is being taken, and the objectives
of and legal basis for this final rule are
explained in the preambles to the
proposed rule and this final rule, and
are not repeated here.
A Summary of the Significant Issues
Raised by the Public Comments in
Response to the IRFA, a Summary of the
Assessment of the Agency of Such
Issues, and a Statement of Any Changes
Made in the Proposed Rule as a Result
of Such Comments
A summary of the comments received
and NMFS’s responses thereto is
contained in the preamble of this rule.
None of those comments addressed
specific information contained in the
IRFA economic analysis. One comment
received stated that the 2009
recreational management measures were
unfair to the financial lower class. See
response to Comment 7 in the Comment
and Responses section. No changes have
been made from the proposed rule as a
result of the comments received.
Description and Estimate of Number of
Small Entities to Which This Rule Will
Apply
The Council estimated that the
proposed measures could affect any of
the 962 vessels possessing a Federal
charter/party permit for summer
flounder, scup, and/or black sea bass in
2007, the most recent year for which
complete permit data are available.
However, only 342 of these vessels
reported active participation in the
recreational summer flounder, scup,
and/or black sea bass fisheries in 2007.
Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
No additional reporting,
recordkeeping, or other compliance
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requirements are included in this final
rule.
Description of the Steps Taken to
Minimize Economic Impact on Small
Entities
No–action alternatives. The economic
analysis conducted in support of this
action assessed the impacts of the
various management alternatives. In the
EA, the no action alternative for each
species is defined as the continuation of
the management measures as codified
for the 2008 fishing season. The no–
action measures were analyzed in
Alternative 2 for each species in the
Council’s EA/RIR/IRFA.
For summer flounder, state–specific
implications of the no–action
(coastwide) alternative of a 20.0–inch
(50.80–cm) minimum fish size, a two–
fish possession limit, and a May 1
through September 30, 2009, fishing
season would not achieve the mortality
objectives required, and, therefore,
cannot be continued for the 2009 fishing
season. Similarly, the no–action
alternative for black sea bass (a 12.0–in
(30.48–cm) minimum fish size, a 25–
fish possession limit, and no closed
fishing season) would result in fishing
mortality that exceeds the level
established for 2009 and, therefore,
cannot be continued for the 2009 fishing
season. This rule implements the no–
action alternative for scup (i.e., status
quo). The implications of so doing are
not substantial; the management
measures remain the same as those in
place for 2008. Council analysis
indicates that minimal impact may
occur even with continuation of the
status quo scup measures. These
impacts would likely result from
changes in year-to-year costs associated
with fishing for scup.
Summer flounder alternatives. In
seeking to minimize the impact of
recreational management measures
(minimum fish size, possession limit,
and fishing season) on small entities
(i.e., Federal party/charter permit
holders), NMFS is constrained to
implementing measures that meet the
conservation objectives of the FMP and
Magnuson–Stevens Act rebuilding
program requirements. As previously
indicated, the no–action alternative for
summer flounder was considered but
rejected by the Council, and
subsequently NMFS, on the grounds
that analysis indicated it would not
ensure that the 2009 mortality objectives
would be met. The remaining
alternatives examined by the Council
and forwarded for consideration by
NMFS consisted of the preferred
alternative of state–by–state
conservation equivalency with a
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30009
precautionary default backstop, and the
non–preferred alternative of coastwide
measures. These were alternatives 1 and
2, respectively, in the Council’s EA/RIR/
IRFA. These two alternatives were
determined by the Council analyses to
satisfy the 2009 conservation objectives
for the recreational fishery, i.e., analysis
indicated that implementation of either
would constrain recreational landings
within the 2009 recreational harvest
limit. Therefore, either alternative
recreational management system could
be considered for implementation by
NMFS, as the critical metric of
satisfying the regulatory and statutory
requirements would be met by either.
Next, NMFS considered the
recommendation of both the Council
and Commission. Both groups
recommended implementation of state–
by–state conservation equivalency, with
a precautionary default backstop. The
recommendations of both groups were
not unanimous: New York
representatives dissented and voted
against conservation equivalency in the
Commission proceedings, and the
Council representatives from New York
likewise voted against continued
recommendation of conservation
equivalency in 2009.
The conservation equivalency
approach allows states some degree of
flexibility in the specification of
management measures, unlike the
application of one set of uniform
coastwide measures. The degree of
flexibility available to states under
conservation equivalency is constrained
to a combined suite of minimum fish
size, possession limit, and fishing
season that will achieve the required
percent reduction required for 2009 (i.e.,
achieve the conservation objectives).
This provides the opportunity for states
to construct measures that achieve the
conservation objectives while providing
a state–specific set of measures in lieu
of the one–size–fits–all coastwide
measure. States that fail to provide
measures, or whose measures do not
achieve the required reduction, are
assigned the more restrictive
precautionary default measures. For
2009, the Commission required that
states obligated to reduce their 2009
landings under the conservation
equivalency program do so by
manipulating the fishing season through
either periodic fishery closures or
shortened overall fishing seasons.
Specifically, the Commission required
that at least 50 percent of any required
reduction in landings was to occur as
the result of season manipulation, with
the remainder of any reduction achieved
through modification to minimum fish
size and/or possession limits. This
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recommendation follows advice
provided by the Commission’s
Technical Committee and Council’s
Summer Flounder Monitoring
Committee that modification to fishing
season is a more effective means of
ensuring landings reduction than are
either changes to minium fish size or
possession limit.
At this time, it is not possible to
determine the precise economic impact
on small entities under conservation
equivalency. The specific measures
adopted for each state were only made
available to NMFS from the Commission
on May 7, 2009, and were unavailable
for analysis during this rulemaking.
Because the recreational fisheries in
many states will have begun by the time
this rule is effective, NMFS has elected
to forego quantitative analysis of the
specific conservation equivalency
measures as implemented by the
individual states, as the need to have
measures in place in a timely fashion
outweighs the benefits of delaying
publication of this rule to complete
further analysis. However, economic
impact is likely to be proportional to the
level of landings reductions required for
each individual state. As such, the
greater the percent reduction required
for states in 2009 (Table 4), the greater
the potential for higher economic
impacts on small entities in comparison
to coastwide measures dependent on the
configuration of management measures
ultimately selected.
TABLE 4. 2009 STATE–BY–STATE PERCENT SUMMER FLOUNDER RECREATIONAL FISHERY LANDINGS REDUCTION
REQUIRED UNDER FRAMEWORK ADJUSTMENT 2 CONSERVATION EQUIVALENCY PROGRAM.1
State
Percent Required Reduction
1Based
MD
RI
CT
NY
NJ
DE
MD
VA
NC
24
42
35
39
7
0
51
0
0
on a 70.4–percent reduction from 1998 landings and a 12.0–percent reduction from 2008 landings.
For NMFS to disapprove the Council’s
recommendation for conservation
equivalency and substitute coastwide
management measures, NMFS must
reasonably demonstrate that the
recommended measures are either
inconsistent with applicable law or
demonstrate that the conservation
objectives of the FMP will not be
achieved by implementing conservation
equivalency. NMFS does not find the
Council and Commission’s
recommendation to be inconsistent with
the implementing regulations of the
FMP found at § 648.100 or the
Magnuson–Stevens Act. Furthermore,
NMFS finds that the Commission
requirement to manipulate fishing
seasons for at least half of the state’s
2009 reductions is a novel, continued
demonstration to try and improve the
performance of conservation
equivalency. In 2008, the Commission
implemented an additional performance
based adjustment that further increased
several state’s required reductions for
the year. This performance–based
adjustment did not prevent the 2008
recreational harvest limit from being
exceeded. Accordingly, the Commission
has required a different approach for
2009, with the expectation that it will be
more effective than the system in place
for 2008.
The use of coastwide management
measures was considered by NMFS. In
fact, as commenters stated in response
to the proposed rule, NMFS had
previously advocated for a coastwide
approach in the early stages of past
years’ recreational fishery management
measures development. The economic
impacts on small entities under the
coastwide measures management
system would vary in comparison to the
conservation equivalency system
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dependent on the specific state wherein
the small entities operate. In the
Council’s provided analysis, closed
seasons typically result in a higher
economic impact to small entities than
do increases in minimum fish sizes or
reduction in possession limits. The
reason for this is that angler success
begins to decline at higher minimum
fish size and higher possession limits,
yielding lower return on the
effectiveness of implementing such
measures. Closed seasons, however, are
unmistakable in their effectiveness as
they permit no harvest irrespective of
fish size or possession limit, provided
there are no compliance issues. Closed
seasons also are typically more easily
enforceable. The interplay between the
three management measures and the
inability to quantitatively assess the
impacts of the state’s implemented
conservation equivalency measures
make definitive statements regarding
impacts difficult to provide. Both
fishery independent and dependent data
suggest that larger summer flounder are
less common in the southern portion of
the management range; therefore,
implementation of coastwide measures
may have a more profound economic
impact on small entities operating in the
southern portion of the management
area if the minimum fish size is set
larger than fish that are typically
available in southern states.
Conservation equivalency is generally
expected to mitigate the economic
impact in states with lower required
percent reductions for 2009 compared to
the 12–percent coastwide reduction that
would be necessary were coastwide
measures employed. In those states,
management measures can be tailored to
suit the expressed needs of both small
PO 00000
Frm 00078
Fmt 4700
Sfmt 4700
entities and other recreational fishery
participants while achieving the
required conservation equivalency
percent reduction. Conversely,
coastwide measures may yield lower
economic impacts for states with the
percent reductions greater than the total
coastwide level of reduction required
for 2009 by permitting smaller
minimum fish sizes paired with slightly
lower possession limits, and comparable
fishing seasons than would be required
to be implemented under conservation
equivalency.
NMFS is implementing the Council
and Commission’s recommended state–
by–state conservation equivalency
measures for the reasons previously
stated: (1) The state–by–state
conservation equivalency management
system has again been modified, by the
Commission, from the previously
utilized methodology that reduced the
magnitude of exceeding the recreational
harvest limit in 2008 but ultimately did
not ensure landings remained below the
desired level; and (2) NMFS finds no
compelling reason to disapprove the
Council and Commission’s
recommended 2009 management
system, as the analysis provided by the
Commission’s Technical Committee
demonstrates that the improved
conservation equivalency system will
provide a high likelihood that the 2009
recreational harvest limit will not be
exceeded. To further ensure that the
2009 recreational harvest limit is not
exceeded, NMFS is prepared to close
the EEZ during the fishing season if
harvest projections indicate that the
2009 recreational harvest limit may be
exceeded before the end of the calendar
year.
Black sea bass alternatives. Similar to
summer flounder, the options available
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Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations
for black sea bass recreational
management measures are constrained
to selecting a suite of minimum fish
size, possession limit, and fishing
season measures that achieves the
annual conservation objectives. In this
case, the conservation objective is a
level of recreational black sea bass
landings that is below the 2009
recreational harvest level. Therefore, the
selection of measures available to
mitigate the economic impact on small
entities is constrained to those measures
that will permit the maximum amount
of recreational landings while achieving
the specified conservation objectives for
the fishing season.
For 2009, a coastwide reduction in
black sea bass landings of 10.0 percent
is necessary to achieve the conservation
objective. The Council’s EA/RIR/IRFA
evaluated alternatives 1 and 3 for black
sea bass, which would achieve this
objective. The Council recommended,
and NMFS is implementing, Alternative
1, consisting of a half–inch increase in
minimum fish size from 12.0 to 12.5
inches (30.48 cm to 31.75 cm) and
maintenance of the status quo 25–fish
possession limit and year–round season
(January 1–December 31, 2009), because
it is projected to achieve a 12.0–percent
reduction in black sea bass recreational
landings in 2009. Alternative 3,
consisting of a 12.0–inch (30.48–cm)
minimum fish size, a 25–fish possession
limit, and fishing seasons January 1
through May 15 and June 15 through
December 31, 2009, is projected to
reduce landings by 13.3 percent from
2008 levels. The measures of this
alternative are more restrictive than
necessary to achieve the conservation
objectives for 2009 and were not
recommended by either the Council or
Commission. Therefore, this rule
implements the increased minimum fish
size contained in Alternative 1, as
recommended by both the Council and
Commission.
Small Entity Compliance Guide
Section 212 of the Small Business
Regulatory Enforcement Fairness Act of
1996 states that, for each rule or group
of related rules for which an agency is
required to prepare a FRFA, the agency
shall publish one or more guides to
assist small entities in complying with
the rule, and shall designate such
publications as ‘‘small entity
compliance guides.’’ The agency shall
explain the actions a small entity is
required to take to comply with a rule
or group of rules. As part of this
rulemaking process, a letter to permit
holders that also serves as the small
entity compliance guide was prepared
and will be sent to all holders of Federal
VerDate Nov<24>2008
15:46 Jun 23, 2009
Jkt 217001
party/charter permits issued for the
summer flounder, scup, and black sea
bass fisheries. In addition, copies of this
final rule and the small entity
compliance guide are available from
NMFS (see ADDRESSES) and at the
following website: https://
www.nero.noaa.gov.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and
recordkeeping requirements.
Dated: June 18, 2009.
Samuel D. Rauch III
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR part 648 is amended
as follows:
■
PART 648—FISHERIES OF THE
NORTHEASTERN UNITED STATES
1. The authority citation for part 648
continues to read as follows:
■
Authority: 16 U.S.C. 1801 et seq.
2. In § 648.102, the first sentence of
the introductory text is revised to read
as follows:
■
§ 648.102
Time restrictions.
Unless otherwise specified pursuant
to § 648.107, vessels that are not eligible
for a moratorium permit under
§ 648.4(a)(3) and fishermen subject to
the possession limit may fish for
summer flounder from May 1 through
September 30. * * *
■ 3. In § 648.103, paragraph (b) is
revised to read as follows:
§ 648.103
Minimum fish sizes.
*
*
*
*
*
(b) Unless otherwise specified
pursuant to § 648.107, the minimum
size for summer flounder is 20.0 inches
(50.80 cm) TL for all vessels that do not
qualify for a moratorium permit, and
charter boats holding a moratorium
permit if fishing with more than three
crew members, or party boats holding a
moratorium permit if fishing with
passengers for hire or carrying more
than five crew members.
*
*
*
*
*
■ 4. In § 648.105, the first sentence of
paragraph (a) is revised to read as
follows:
§ 648.105
Possession restrictions.
(a) Unless otherwise specified
pursuant to § 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
PO 00000
Frm 00079
Fmt 4700
Sfmt 4700
30011
issued a summer flounder dealer permit.
***
*
*
*
*
*
5. In § 648.107, paragraph (a)
introductory text and paragraph (b) are
revised to read as follows:
■
§ 648.107 Conservation equivalent
measures for the summer flounder fishery.
(a) The Regional Administrator has
determined that the recreational fishing
measures proposed to be implemented
by Massachusetts through North
Carolina for 2009 are the conservation
equivalent of the season, minimum fish
size, and possession limit prescribed in
§§ 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
§§ 648.102, 648.103(b) and 648.105(a),
respectively, due to the lack of, or the
reversal of, a conservation equivalent
recommendation from the Summer
Flounder Board of the Atlantic States
Marine Fisheries Commission, shall be
subject to the following precautionary
default measures: Season – July 4
through September 7; minimum size –
21.5 inches (54.61 cm); and possession
limit – one fish.
6. In § 648.143, paragraph (b) is
revised to read as follows:
■
§ 648.143
Minimum sizes.
*
*
*
*
*
(b) The minimum fish size for black
sea bass is 12.5 inches (31.75 cm) TL for
all vessels that do not qualify for a
moratorium permit, and for party boats
holding a moratorium permit, if fishing
with passengers for hire or carrying
more than five crew members, and for
charter boats holding a moratorium
permit, if fishing with more than three
crew members.
*
*
*
*
*
[FR Doc. E9–14877 Filed 6–23–09; 8:45 am]
BILLING CODE 3510–22–S
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]]>Agencies
[Federal Register Volume 74, Number 120 (Wednesday, June 24, 2009)]
[Rules and Regulations]
[Pages 30002-30011]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-14877]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 090211163-9795-02]
RIN 0648-AX69
Fisheries of the Northeastern United States; Recreational
Management Measures for the Summer Flounder, Scup, and Black Sea Bass
Fisheries; Fishing Year 2009
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS implements recreational management measures for the 2009
summer flounder and black sea bass fisheries and notifies the public
that the recreational management measures for the scup fishery remain
the same as in 2008. These actions are necessary to comply with
regulations implementing the Summer Flounder, Scup, and Black Sea Bass
Fishery Management Plan (FMP) and to ensure compliance with the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The intent of these measures is to prevent overfishing of
the summer flounder, scup, and black sea bass resources.
DATES: Effective July 24, 2009.
ADDRESSES: Copies of supporting documents used by the Summer Flounder,
Scup, and Black Sea Bass Monitoring Committees and of the Environmental
Assessment, Regulatory Impact Review, and Initial Regulatory
Flexibility Analysis (EA/RIR/IRFA) are available from Daniel Furlong,
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115,
Federal Building, 300 South New Street, Dover, DE 19901-6790. The EA/
RIR/IRFA is also accessible via the
[[Page 30003]]
Internet at https://www.nero.noaa.gov. The Final Regulatory Flexibility
Analysis (FRFA) consists of the IRFA, public comments and responses
contained in this final rule, and the summary of impacts and
alternatives contained in this final rule. Copies of the small entity
compliance guide and EA/RIR/IRFA document are available from Patricia
A. Kurkul, Regional Administrator, Northeast Region, NMFS, 55 Great
Republic Drive, Gloucester, MA 01930-2276.
FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy
Analyst, (978) 281-9104.
SUPPLEMENTARY INFORMATION:
Background
The summer flounder, scup, and black sea bass fisheries are managed
cooperatively by the Atlantic States Marine Fisheries Commission
(Commission) and the Mid-Atlantic Fishery Management Council (Council),
in consultation with the New England and South Atlantic Fishery
Management Councils. The FMP and its implementing regulations, which
are found at 50 CFR part 648, subparts A (general provisions), G
(summer flounder), H (scup), and I (black sea bass), describe the
process for specifying annual recreational management measures that
apply in the Exclusive Economic Zone (EEZ). The states manage these
fisheries within 3 nautical miles of their coasts, under the
Commission's plan for summer flounder, scup, and black sea bass. The
Federal regulations govern fishing activity in the EEZ, as well as
vessels possessing a Federal fisheries permit, regardless of where they
fish.
The 2009 coastwide recreational harvest limits, after deduction of
research set-aside (RSA), are 7,158,600 lb (3,247 mt) for summer
flounder; 2,585,952 lb (1,173 mt) for scup; and 1,137,810 lb (516 mt)
for black sea bass. The 2009 quota specifications, inclusive of the
recreational harvest limits, were previously determined to be
consistent with the 2009 target fishing mortality rate (F) for summer
flounder and the target exploitation rates for scup and black sea bass.
The proposed rule to implement annual Federal recreational measures
for the 2009 summer flounder, scup, and black sea bass fisheries was
published on April 1, 2009 (74 FR 14760), and contained management
measures (minimum fish sizes, possession limits, and fishing seasons)
intended to keep annual recreational landings from exceeding the
specified harvest limits.
2009 Recreational Management Measures
Additional discussion on the development of the recreational
management measures appeared in the preamble of the proposed rule and
is not repeated here. All minimum fish sizes discussed below are total
length measurements of the fish, i.e., the straight-line distance from
the tip of the snout to the end of the tail while the fish is lying on
its side. For black sea bass, total length measurement does not include
the caudal fin tendril. All possession limits discussed below are per
person.
Summer Flounder Management Measures
Based on the recommendation of the Commission, the NMFS Northeast
Regional Administrator finds that the recreational summer flounder
fishing measures proposed to be implemented by the states of
Massachusetts through North Carolina for 2009 are the conservation
equivalent of the season, minimum size, and possession limit prescribed
in Sec. Sec. 648.102, 648.103, and 648.105(a), respectively. According
to Sec. 648.107(a)(1), vessels subject to the recreational fishing
measures of this part and landing summer flounder in a state with an
approved conservation equivalency program shall not be subject to the
more restrictive Federal measures, and shall instead be subject to the
recreational fishing measures implemented by the state in which they
land. Section 648.107(a) has been amended accordingly. The management
measures will vary according to the state of landing, as specified in
the following table.
Table 1 -- 2009 State Recreational Management Measures for Summer
Flounder
------------------------------------------------------------------------
Minimum Fish Size Possession
-------------------- Limit Fishing
State (number of Season
inches cm fish)
------------------------------------------------------------------------
MA.......................... 18.5 46.99 5 July 1
through
August 13
------------------------------------------------------------------------
RI.......................... 21.0 53.34 6 June 17
through
December
31
------------------------------------------------------------------------
CT.......................... 19.5 49.53 3 June 15
through
August 19
------------------------------------------------------------------------
NY.......................... 21.0 53.34 2 May 15
through
June 15
and
July 3
through
August 17
------------------------------------------------------------------------
NJ.......................... 18.0 45.72 6 May 23
through
September
4
------------------------------------------------------------------------
DE.......................... 18.5 46.99 4 January 1
through
December
31
------------------------------------------------------------------------
MD\1\....................... 18.0 45.72 3 April 15
through
September
13
------------------------------------------------------------------------
VA.......................... 19.0 48.26 5 January 1
through
December
31
------------------------------------------------------------------------
NC\2\....................... 15.0 38.10 8 January 1
through
December
31
------------------------------------------------------------------------
\1\Chesapeake Bay, MD - a 16.5-in (41.91-cm) minimum fish size, a 1-fish
possession limit, and a fishing season of April 15-September 13
applies.
\2\Pamlico Sound , NC - No person may possess flounder less than 14.0 in
(35.56 cm) total length (TL) taken from internal waters for
recreational purposes west of a line beginning at a point on Point of
Marsh in Carteret County at 35[deg] 04.6166' N lat.-76[deg] 27.8000' W
long., then running northeasterly to a point at Bluff Point in Hyde
County at 35[deg] 19.7000' N lat.-76[deg] 09.8500' W long. In Core and
Clubfoot creeks, the Highway 101 Bridge constitutes the boundary north
of which flounder must be at least 14.0 (35.56 cm) in TL.
[[Page 30004]]
Albemarle Sound, NC - No person may possess flounder less than 14.0 in
(35.56 cm) TL taken from internal waters for recreational purposes
west of a line beginning at a point 35[deg] 57.3950' N lat.- 76[deg]
00.8166' W long. on Long Shoal Point; running easterly to a point
35[deg] 56.7316' N lat.-75[deg] 59.3000' W long. near Marker ``5'' in
Alligator River; running northeasterly along the Intracoastal Waterway
to a point 36[deg] 09.3033' N lat.-75[deg] 53.4916' W long. near
Marker ``171'' at the mouth of North River; running northwesterly to a
point 36[deg] 09.9093' N lat.-75[deg] 54.6601' W long. on Camden
Point.
Browns Inlet South, NC - No person may possess flounder less than 14.0
in (35.56 cm) TL in internal and Atlantic Ocean fishing waters for
recreational purposes west and south of a line beginning at a point
34[deg] 37.0000' N lat.-77[deg] 15.000' W long.; running southeasterly
to a point 34[deg] 32.0000' N lat.-77[deg] 10.0000' W long.
Scup Management Measures
Table 2 contains the coastwide Federal measures for scup in effect
for 2008 and codified. The 2009 measures are unchanged from those at 50
CFR part 648, subpart I, and are presented in Table 2.
Table 2 -- 2009 Scup Recreational Management Measures
----------------------------------------------------------------------------------------------------------------
Minimum Fish Size
Fishery ----------------------------------- Possession Limit Fishing Season
inches cm
----------------------------------------------------------------------------------------------------------------
Scup................................ 10.5 26.67 15 fish January 1 through
February 28, and
October 1 through
October 31
----------------------------------------------------------------------------------------------------------------
The scup fishery in state waters will be managed under a regional
conservation equivalency system developed through the Commission over
the last 7 years. Because the Federal FMP does not contain provisions
for conservation equivalency, and states may adopt their own unique
measures, the Federal and state recreational scup management measures
will differ for 2009.
Black Sea Bass Management Measures
This rule implements the black sea bass measures contained in the
April 1, 2009, proposed rule: An increase in minimum fish size from
12.0 to 12.5 inches (30.48 cm to 31.75 cm) and status quo measures for
possession limit (25 fish per person) and fishing season (January 1-
December 31, 2009). Table 3 contains the 2009 coastwide Federal
measures for black sea bass.
Table 3 -- 2009 Black Sea Bass Recreational Management Measures
----------------------------------------------------------------------------------------------------------------
Minimum Fish Size
Fishery ------------------------------------ Possession Limit Fishing Season
inches cm
----------------------------------------------------------------------------------------------------------------
Black Sea Bass...................... 12.5 31.75 25 fish January 1 through
December 31
----------------------------------------------------------------------------------------------------------------
Comments and Responses
Four comment letters were received regarding the proposed
recreational management measures (74 FR 14760, April 1, 2009). Comments
were received from two organizations: One from the New York State
Department of Environmental Conservation's (NY DEC) Bureau of Marine
Fisheries; and the other on behalf of a recreational fishing trade and
advocacy organization, the United Boatmen of New York (UBNY). The other
two comments were from private citizens. One private citizen commenter
expressed general displeasure at how Total Allowable Landings (TALs)
and other quotas are established but did not provide specific comment
on the recreational management measures. No specific response is
provided to this individual's comments, as the relevance to the
recreational management measures could not be ascertained.
The materials submitted by UBNY did not make specific comments
about the proposed 2009 recreational management measures. The materials
submitted reference the comments submitted by NY DEC and highlight many
similar issues specifically commented on by NY DEC. Therefore, NMFS
considers the response to the NY DEC comments as responsive to the UBNY
concerns as well. Many of the issues raised by commenters for the 2009
recreational management measures are identical to those raised for the
2008 recreational management measures and are, in turn, the same as the
arguments made by plaintiffs, which include the NY DEC and UBNY, in an
ongoing lawsuit against the Secretary of Commerce (Secretary) for
implementation of the 2008 summer flounder measures.\1\
---------------------------------------------------------------------------
\1\State of New York et al. v. Gutierrez et al. Civil Action No.
08-cv-02503-CPS
---------------------------------------------------------------------------
Comment 1: The NY DEC alleged that state-by-state conservation
equivalency violates National Standard 2 of the Magnuson-Stevens Act,
which requires conservation and management actions to be based upon the
best available scientific information.
Specifically, the commenter alleged the following ways that state-
by-state conservation equivalency violates National Standard 2: (a) The
use of Marine Recreational Fishery Statistical Survey (MRFSS) data to
develop state-by-state conservation equivalency measures has inadequate
resolution for state-level monitoring and management. The comment cites
the 2006 NOAA-commissioned National Academy of Sciences independent
review of MRFSS that stated monitoring fisheries at a state level is a
finer stratification than originally intended for the data collected,
and that the existing sampling strata may be too coarse a resolution to
generate estimates that are adequate for management requirements; (b)
the use of 1998 as a landings baseline as the starting point for
landings reductions is outdated, inadequate, and flawed; (c) state-by-
state conservation equivalency is not responsive to changes that have
occurred in stock status wherein the summer flounder stock has
redistributed and is composed of larger, older fish, particularly
adjacent to New York State; and (d) the level of angler effort and
distribution has changed substantially since 1998, and MRFSS data would
support increasing the percentage of
[[Page 30005]]
summer flounder recreational landings allocated to New York.
Response: NMFS disagrees that managing the summer flounder
recreational fishery using state-by-state conservation equivalency is a
violation of National Standard 2. The following responds to the
specific points raised in the above comment:
a. The information provided by MRFSS, along with additional
information provided by individual states and fishery independent
surveys, is sufficient and appropriate to manage the recreational
summer flounder fishery on a state-by-state basis.
The analytical process for 2009 was not dissimilar to that used in
2008: Both the Council and Commission considered the precision of MRFSS
estimates at a state-by-state level; discussed the adequacy of, and
equity issues related to, the 1998 landings baseline; evaluated the
performance of conservation equivalency in the prior year, including
the ``performance-based adjustment factor'' implemented for 2008;
contemplated both coastwide and regional approaches to management; and,
in conclusion, recommended the continued use of conservation
equivalency with new modifications to NMFS for 2009.
The Commission established a requirement for 2009 that at least 50
percent of the necessary reductions for the fishing year be achieved by
season closures rather than by imposing more stringent size or bag
limits. This system modification was created by the Commission in
response to the 2008 required ``performance-based adjustment factor''
having poor success in constraining landings to the required levels.
The Commission requirement to call for a substantive adjustment to
fishing seasons to achieve the desired individual state landing
reductions is consistent with recommendations from the Council's Summer
Flounder Monitoring Committee and Commission's Summer Flounder
Technical Committee, both scientific advisory bodies to the Council and
Commission, respectively, and NMFS. The recommendation for season
closures is based on the premise that modification to seasons, either
through periodic in-season closures or shortened overall seasons, are
better suited to ensure a reduction in landings than are either changes
in minimum fish size or possession limits. Fishery closures are noted
by the Monitoring Committee and Technical Committee as having more
significant compliance rates and, thus, result in near-zero landings
when applied. Modifications to minimum fish size and possession limits
have demonstrated higher levels of non-compliance that minimize their
effectiveness. Additionally, inter-annual fish growth may result in
diminished effectiveness of minimum fish sizes if that growth keeps
pace with increases in size. The requirement to adjust seasons to
better ensure landing reductions represents further refinement by the
Commission to ensure that state-by-state conservation equivalency
functions as envisioned and achieves the required conservation
objectives.
Framework Adjustment 2 to the FMP (66 FR 36208, July 11, 2001)
states that conservation equivalency may only be used by area (i.e.,
states) if the proportional standard error of the MRFSS landings
estimate, by area, is less than 30 percent. On a state-by-state basis,
the 2008 MRFSS estimates of landings utilized in establishing the 2009
conservation equivalency program have proportional standard errors
ranging from a high of 26.3 percent for Massachusetts to a low of 10.8
percent for New York. This is compared to 8.3 percent for the Mid-
Atlantic states (New York to Virginia), combined, and 12.1 percent for
the New England states (Maine to Connecticut) combined. While the
proportional standard error is lower when dealing with larger data
aggregations, the error levels associated with individual states are
well within the acceptable error levels specified in Framework
Adjustment 2 to the FMP, which implemented the regulatory structure to
permit management of the summer flounder recreational fishery through
conservation equivalency.
As was outlined in the 2008 response to comments (May 23, 2008; 73
FR 29990), NMFS has been aware of limitations in the MRFSS design and
data for some time. It is, in fact, why NOAA commissioned the review by
the National Academy of Sciences. While the review pointed out numerous
areas for improvement of the MRFSS sampling design, nowhere in the
assessment did the National Academy of Sciences' reviewers indicate
that use of the MRFSS data at smaller spatial scales (i.e., state-by-
state) was an inappropriate use of the data. Clearly, the precision of
the landings estimates are improved when at an aggregate, coastwide
level, but the use of the data to establish catch at a state level is
not a violation of National Standard 2. The proportional standard error
remains acceptable at the state-by-state level of resolution. The
Commission's Technical Committee explored using the upper bound of the
proportional standard error for each state's landings estimate as a
means to make conservation equivalency more robust in 2008. The
Technical Committee found that such an approach was impracticable, as
it would have required many states to make downward harvest adjustments
in years when no such adjustment was necessary. These considerations of
the accuracy and precision of MRFSS data continue to be true for the
2009 state-by-state conservation equivalency program. Moreover, the
Commission has modified the conservation equivalency approach for 2009,
attempting to further ensure that the system functions as envisioned.
NMFS does not disagree that the use of current MRFSS methodology
and data has moved well beyond their originally intended purpose.
However, as has often been stated in the past, MRFSS continues to be
the only source of data currently available to assess the effort,
harvest, and discards in recreational fisheries at any spatial scale.
NMFS understands the frustrations and disagreements that arise with the
MRFSS data set when it is used for certain management purposes and is
working to improve the quality and utility of data collected for
recreational fisheries management. Were MRFSS data not utilized, there
would be no alternative means to quantify recreational harvest,
participation levels, or to assess management measures on a coastwide
or state-by-state basis for all Atlantic states in the Northeast
Region. Clearly, this would present substantial complications to
effectively managing the summer flounder recreational fishery and the
Magnuson-Stevens Act required objective of rebuilding the summer
flounder stock. NMFS's development and implementation efforts for the
Marine Recreational Information Program (MRIP), designed to address the
National Academy of Sciences recommendations, fishery management needs,
and to be responsive to input from recreational anglers, are ongoing.
MRIP is the revised recreational survey methodology and data collection
designed to be responsive to the National Academy of Sciences peer-
review recommendations. Detailed information on the MRIP program can be
found on the NMFS Office of Science and Technology web site: https://www.st.nmfs.noaa.gov/mrip/. Some aspects of the MRIP program will
become effective in the 2009 fishing year. In addition, a national
saltwater angler registry, as required by the Magnuson-Stevens
Reauthorization Act of 2006, will become effective on January 1, 2010.
This registry will greatly assist recreational fishery data collection
efforts.
[[Page 30006]]
b. The conservation equivalency system was implemented in 2001 by
Framework Adjustment 2 to the Federal FMP (66 FR 36208, July 11, 2001)
and the Commission's companion action Addendum III to the Commission's
Summer Flounder, Scup, and Black Sea Bass FMP. Under this process,
states are allowed to design management measures to achieve their
specified recreational management targets which, in turn, ensures that
the coastwide recreational harvest limit will be achieved. NMFS has
implemented conservation equivalency, as recommended by the Council and
Commission, in each year since 2001. There are New York representatives
on both the Council and Commission.
The overarching process of conservation equivalency establishes a
set of guidelines for states to tailor management measures that meet
the conservation objectives of the FMP rather than being subject to a
one-size-fits-all coastwide approach. The conservation equivalency
framework is uniform and applied consistently for all states, without
differentiating among U.S. citizens, nationals, resident aliens, or
corporations on the basis of their state of residence. Individual
states are free to develop, based on the fishery practices in their
state, any combination of minimum fish size, possession limit, and
fishing season to ensure that, when paired with the remaining Atlantic
coastal states, the coastwide recreational harvest limit will not be
exceeded. Each state's circumstance with respect to landings and
overage is unique to that state and argues against the application of
the same measures for each state. The Commission's Technical Committee
evaluates the proposed state measures and, if sufficient, a
recommendation to adopt, as functionally equivalent, the reviewed and
approved measures is forwarded by the Commission to NMFS for
implementation. This ensures that the conservation objectives of the
FMP and the summer flounder rebuilding program are met.
To achieve conservation equivalency, the Commission, not NMFS,
establishes a base recreational allocation that each state receives
from the coastwide recreational harvest limit and specifies the percent
reduction or liberalization in landings each state's measures must meet
for each year. The conservation equivalency system does not result in a
direct distribution of fishing privileges to individual states by NMFS.
This allocation is not earmarked solely for the residents of an
individual state; rather, any landing made in the state in question is
counted against that state's recreational allocation. Fishery
participants are free to participate in multiple states, land in
adjacent states, etc., and are not discriminated against based on their
state of residence.
c. NMFS agrees that the status of the summer flounder stock has
changed since 1998, as the stock has experienced rebuilding toward the
maximum sustainable yield level. The summer distribution of summer
flounder is, as stated by the commenters, primarily in inshore areas
from the Mid-Atlantic Bight to southern New England. There has been an
increase in both fish ages and sizes in the past decade. NMFS
reiterates what was stated in response to comments in 2008: That catch
levels (i.e., quotas) are established annually and that increases in
stock size, distribution, and increases in fish size and age are all
captured within the stock assessment framework utilized to generate
quota-related information. The issue raised by NY DEC is one of
allocation that functions separately from stock status. (See response
to Comment 2 for additional information.)
The Commission has continued to establish the basis for the state
recreational harvest allocations as the percentage of 1998 coastwide
recreational landings by state. However, the Commission is at liberty
to revise or amend these allocation percentages independently of the
Council and/or NMFS as specific state recreational fishery percent
allocations are not codified in the Federal regulations that implement
the conservation equivalency program. The Commission has had
significant discussion in both 2007 and 2008 about reevaluating 1998 as
the baseline year. In both years, the Commission has elected to
continue using 1998 coastwide landings by state as the baseline. The
continued use of 1998 landings data by the Commission was not
arbitrary; the intent of 1998 as the base allocation year was to
establish a reference against which the effects of proposed regulations
could be effectively evaluated.
d. The Commission is at liberty to explore modifications to state
allocations based on angler-related statistics, number of anglers, or
angler effort. To date, the Commission has elected to use the last year
(1998) in which consistent measures were applied coastwide as the
starting point for annual allocations. NMFS has no grounds to
disapprove the recommended 2009 conservation equivalency measures
recommended by the Commission because one member state of the
Commission disagrees with the allocation structure utilized to derive
equivalent measures. The amount of fish provided each state from the
overall recreational harvest limit is wholly a function of the
Commission process.
For these reasons, NMFS contends that implementing conservation
equivalency, as recommended by the Council and Commission for 2009,
does not violate National Standard 4 or National Standard 2 of the
Magnuson-Stevens Act.
Comment 2: The NY DEC also alleged that state-by-state conservation
equivalency violates National Standard 4 of the Magnuson-Stevens Act,
which states that conservation and management actions implemented by
NMFS shall not discriminate between residents of different states. The
commenter raised concerns about disparities that arise between adjacent
states' management measures under the state-by-state conservation
equivalency management system, specifically citing the differences
between 2009 New York and adjacent New Jersey and Connecticut measures.
The commenter asserts that such differences are highly inequitable,
unfair, and have no linkage to conservation and recovery of summer
flounder. The commenter also stated that the overages that have
occurred in New York waters in recent years are not the result of
cheating, but are a result of recovery of summer flounder and natural
changes to the summer flounder population. Thus, the commenter states,
New York is being punished unfairly for conditions beyond its control.
Response: NMFS disagrees that state-by-state conservation
equivalency is a violation of National Standard 4 for the reasons
outlined in response to comment 1c. The recreational quotas distributed
to the states under the Commission's Interstate Summer Flounder FMP are
based on the application of the same rule to each state; individual
state quotas are based on the state's share of the overall 1998
recreational catch of summer flounder. Understandably, since
recreational landings varied in each state, state recreation quotas
derived from the landings would vary as well. So too would the measures
in each state developed to achieve the state's conservation equivalency
with the Federal coastwide measures adopted by the Council and
Commission as a non-preferred alternative. In essence, differing state
measures are derived from the application of the same rule to each
state and designed to achieve the same result using varying quotas. The
application of the same rule to a number of states that yields
different results among those states due to disparate landing levels is
consistent with National Standard 4.
[[Page 30007]]
NY DEC asserts that there is nothing that can be done to control
excessive recreational harvest, given the large number of anglers
paired with availability of large summer flounder in New York waters,
and further insinuates that only a change in allocation will provide
relief to the continued annual overages. The angler noncompliance rate
with the minimum fish sizes established for New York has ranged from 5
to 13 percent during the years 1999 to 2008. NMFS contends that there
are indeed measures that could be undertaken that would ensure that New
York landings do not exceed their given allocation in any given year:
Closed seasons during peak fishing seasons; shortened overall seasons;
consideration of angler rates of noncompliance in calculating
effectiveness of proposed measures; increases in enforcement efforts;
supplementation of MRFSS collected data by state data-collection
programs; and use of a buffer to sufficiently mitigate management
uncertainty when crafting recreational management measures are all
approaches that have to date, gone largely unused by NY DEC in
establishing recreational summer flounder measures. NMFS contends that
New York must ensure responsible, effective measures in 2009 to break
the cycle wherein landings targets are consistently exceeded.
Comment 3: Comments by the NY DEC on managing summer flounder as a
unit stock are similar to those provided on the 2008 recreational
management. The comment suggests that state-by-state conservation
equivalency violates National Standard 3 of the Magnuson-Stevens Act,
which requires individual fish stocks to be managed as a unit
throughout their ranges, to the extent practicable. This year,
additional comments were added regarding the scientific reasoning for
state-by-state management.
Response: NMFS disagrees with the commenter, as the summer flounder
stock is managed as a single unit, consistent with National Standard 3.
National Standard 3 does not require that management measures within
the management unit be the same. Management is cooperative among the
Commission, which represents individual states in the management unit,
the Council, and NMFS. The stock assessment conducted in support of
annual TAL setting is for the entire Northeast Region management unit
for summer flounder, from Maine to North Carolina. Catch limits for the
recreational and commercial fisheries are established for the entire
coast. The overarching commercial TAL is managed on a state-by-state
basis, parsed by historic landings percentage by each state.
Conversely, the recreational fishery may employ coastwide measures, or
regional or state-by-state conservation equivalency to achieve the
coastwide recreational harvest level. When state-by-state conservation
equivalency is utilized for management, the individual state management
measures are structured to achieve equivalency with the overarching
coastwide (i.e., single management unit) recreational harvest limit.
Furthermore, the regulations implementing National Standard 3 (50 CFR
600.320) clearly state that management measures need not be identical
for each geographic area within the management unit.
The comment that fish do not recognize geopolitical boundaries is
often used as an argument against management systems. The overarching
scientific approach for managing the summer flounder stock has been
previously described. An annual catch level is determined to ensure
that conservation objectives are met for the year. From there, for
summer flounder, the overall catch level is parsed into commercial and
recreational sectors and further subdivision to states. These further
subdivisions are not scientific in nature, but are allocative, and
there are no requirements that the allocation be inherently
biologically based, provided the sum of the allocations does not exceed
the annual science-based conservation objective. As previously
described, the recreational state-by-state allocation criteria utilized
by the Commission is based on the last year of consistent coastwide
measures (1998). The Commission is free to revisit and modify this
allocation structure at any time as the individual state recreational
harvest shares are not codified in Federal regulation.
Comment 4: NY DEC has alleged that state-by-state conservation
equivalency violates National Standard 6 of the Magnuson-Stevens Act,
which states that conservation and management measures shall take into
account and allow for variations among, and contingencies in,
fisheries, fishery resources, and catches. The basis for the
commenter's assertion is that conservation equivalency does not address
a northward shift in summer flounder stock distribution.
Response: NMFS disagrees and asserts that the commenters have
misinterpreted the intent of National Standard 6, which is to ensure
that an FMP management regime includes some protection against
uncertainties that may arise. National Standard 6 directs FMPs to have
a suitable buffer, in favor of conservation, to deal with uncertainty,
which may also be stated as a conservative approach. Examples provided
in NMFS guidance on National Standard 6 (50 CFR 600.336) include
reductions in optimum yield, establishment of reserves, and adjustable
management techniques to compensate for changes that occur during a
fishing year as suitable buffers to mitigate uncertainty.
In regard to conservation equivalency, a summer flounder stock
assessment is conducted annually, and fully accounts for, among other
things, stock distribution, changes in stock size, and fishery
removals. The stock assessment does fully account for changes in stock
dynamics and distribution in providing the basis for setting the annual
coastwide TAL, which is then divided among the recreational and
commercial fisheries.
Further, both the states and NMFS are able to monitor recreational
harvests during the fishing season, and both can take corrective or
closure actions to ensure that mortality objectives or harvest targets
are not exceeded. For these reasons, NMFS finds that the use of state-
by-state conservation equivalency complies with National Standard 6 of
the Magnuson-Stevens Act.
Comment 5: NY DEC commented that state-by-state conservation
equivalency does not appear to be conserving the fishery and that
coastwide measures would make better use of the available data and
provide a new baseline year for future landings reductions. NY DEC has
requested that NMFS implement coastwide measures instead of the Council
and Commission's preferred alternative for state-by-state conservation
equivalency.
Response: NMFS has been continually concerned with what was
described by NY DEC as the states' practices of adjusting recreational
measures to maximize harvest within the individual state allocation or,
more plainly stated, conducting analysis that gets as close as possible
to the landings limit without exceeding, on paper, said limit. Many of
NMFS's concerns, raised in correspondence from NMFS Northeast Regional
Administrator Patricia Kurkul and former Assistant Administrator Dr.
William Hogarth, have been quoted often in the NY DEC comments.
The conservation equivalency system has not remained static since
NMFS first raised concerns that the system must be improved to provide
a higher likelihood of constraining landings to the established
recreational harvest limit. There have been positive advances in
[[Page 30008]]
how the conservation equivalency analysis is conducted and the
stipulations that the Commission has required of member states, all of
which are designed to improve the performance of the system and ensure
conservation objectives are met. NMFS has given deference to the states
through the Commission process to continue to explore measures that
improve the performance of conservation equivalency, provided the
requirements of Framework Adjustment 2 to the FMP, the overarching FMP
regulations, the Magnuson-Stevens Act, and other applicable law are
satisfied in so doing. NMFS continues to encourage individual states,
though the Commission, to conduct analyses that provide a buffer
between expected landings and individual states landing limits in the
absence of more qualitative means of improving conservation
equivalency.
As noted in the comment, the Commission required a ``performance-
based adjustment factor'' for the 2008 fishery, as well as requiring
the use of a predicted average fish weight. This system further reduced
states' 2008 targets by a factor that was derived by taking the average
of yearly harvest-to-target performance by state from 2001-2007. As
indicated in the comment by NY DEC, this system did not ensure that the
2008 recreational management targets were not exceeded by a number of
states.
For 2009, the Commission is requiring a new refinement to the
conservation equivalency system: States that have required reductions
to meet their 2009 landings targets must ensure that at least half of
the reduction is the result of modification to fishing seasons. NMFS
contends that this is a continued demonstration of the Commission's
willingness to make substantive improvements in the conservation
equivalency management system. Were the ``performance-based adjustment
factor'' recommended for 2009 or no modification of how states set
minimum fish size, possession limit, and fishing season required by the
Commission, the approval of state-by-state conservation equivalency
would have been difficult for NMFS to justify. This is because of the
past repetitive failures of the unmodified conservation equivalency
program and NMFS's need to rebuild the summer flounder stock by 2013.
For NMFS to disapprove the Council's recommendation and substitute
alternative measures, in this case coastwide management measures, NMFS
must reasonably demonstrate that the recommended measures are either
inconsistent with applicable law or otherwise demonstrate that the
conservation objectives of the FMP will not be achieved by implementing
the recommendation in question. NMFS does not find the Council and
Commission's recommendation are legally suspect or incapable of
achieving the FMP's conservation objectives in light of the reduction
in fishing season mandated by the Commission for use in 2009.
However, NMFS remains concerned that there is little margin for
error in the remaining 3 years of the summer flounder rebuilding plan
(2010-2012). Therefore, recreational landings will be monitored in
season and, if necessary to ensure the mortality objectives are not
compromised for 2009, an inseason closure of the EEZ may occur. Any
such closure action would be announced through multiple media outlets,
including publication of a notice in the Federal Register.
Use of information on a coastwide basis would improve the precision
of the MRFSS estimates and would, as indicated by the commenters,
provide a new baseline year of landings for future use. The level of
precision provided under state-by-state conservation equivalency is not
of insufficient resolution for management (see response to Comment 1)
and, should states have concerns about the precision of landings
estimates at a state level, NMFS recommends establishing recreational
management measures that provide a sufficient buffer to mitigate for
any loss of precision.
NMFS is implementing, through this final rule, state-by-state
conservation equivalency as recommended by both the Council and
Commission for the reasons previously outlined in the preamble to this
rule. Under conservation equivalency, each state has implemented a
unique minimum fish size, possession limit, and fishing season tailored
to ensure that these measures result in recreational landings
equivalent to the coastwide recreational harvest level.
Comment 6: NY DEC requested that the 2008 landings estimate for New
York be adjusted from 600,000 fish to 565,000 fish. The change in
number is a result of the final 2008 MRFSS catch data being available
as opposed to the estimated landings used during the Council and
Commission recreational management measures development discussion.
Response: The individual state landings limits, including the
percent reduction from the previous year landings estimate and target
number of fish to be landed, are specified through the Commission
process. Estimated landings are often utilized as final prior year
landings estimates are not available until the first quarter of the
following year. The Commission's Summer Flounder Management Board would
need to approve measures for New York designed to achieve any modified
2009 landings target. NMFS recommends that NY DEC pursue this
discussion with the Commission and Summer Flounder Management Board.
Comment 7: One commenter stated that the 2009 recreational
management measures are unfair to the financial lower class, further
stating that if one has money and he/she can buy a permit, they can
presumably participate in the recreational fisheries for summer
flounder, scup, or black sea bass.
Response: The Council conducted analysis consistent with Executive
Order 12898, which directs each Federal agency to achieve environmental
justice as part of its mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on
minority populations and low-income populations. Council analysis
indicated that 28 percent of marine recreational anglers fish for
reasons other than recreation and one-third rely on catching marine
resources as a cost-saving food source or supplement to income. The
black sea bass and scup possession limits are unchanged for 2009. Under
conservation equivalency for summer flounder, the management measures
should permit the fishery to operate in a manner that dissipates, to
the extent practicable, adverse effects on the angling population while
ensuring that conservation objectives are met. The Council concluded
that, based on this analysis contained in the EA/RIR/IRFA document (see
ADDRESSES for information on obtaining the source document), the
actions of the 2009 recreational management measures were not expected
to cause disproportionately high adverse or economic effects on low-
income populations.
Regarding the commenter's second point, there are currently no
Federal permit fees for private anglers or for individuals to obtain a
Federal party/charter permit.
Classification
The Administrator, Northeast Region, NMFS, determined that this
final rule implementing the 2009 summer flounder, scup, and black sea
bass recreational management measures is necessary for the conservation
and management of the summer flounder, scup, and black sea bass
fisheries, and
[[Page 30009]]
that it is consistent with the Magnuson-Stevens Act and other
applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Included in this final rule is the FRFA prepared pursuant to 5
U.S.C. 604(a). The FRFA incorporates the economic impacts described in
the IRFA, a summary of the significant issues raised by the public
comments in response to the IRFA, NMFS's responses to those comments,
and a summary of the analyses completed to support the action. Copies
of the EA/RIR/IRFA and supplement are available from the Council and
NMFS (see ADDRESSES).
Final Regulatory Flexibility Analysis
Statement of Objective and Need
A description of the reasons why this action is being taken, and
the objectives of and legal basis for this final rule are explained in
the preambles to the proposed rule and this final rule, and are not
repeated here.
A Summary of the Significant Issues Raised by the Public Comments in
Response to the IRFA, a Summary of the Assessment of the Agency of Such
Issues, and a Statement of Any Changes Made in the Proposed Rule as a
Result of Such Comments
A summary of the comments received and NMFS's responses thereto is
contained in the preamble of this rule. None of those comments
addressed specific information contained in the IRFA economic analysis.
One comment received stated that the 2009 recreational management
measures were unfair to the financial lower class. See response to
Comment 7 in the Comment and Responses section. No changes have been
made from the proposed rule as a result of the comments received.
Description and Estimate of Number of Small Entities to Which This Rule
Will Apply
The Council estimated that the proposed measures could affect any
of the 962 vessels possessing a Federal charter/party permit for summer
flounder, scup, and/or black sea bass in 2007, the most recent year for
which complete permit data are available. However, only 342 of these
vessels reported active participation in the recreational summer
flounder, scup, and/or black sea bass fisheries in 2007.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
No additional reporting, recordkeeping, or other compliance
requirements are included in this final rule.
Description of the Steps Taken to Minimize Economic Impact on Small
Entities
No-action alternatives. The economic analysis conducted in support
of this action assessed the impacts of the various management
alternatives. In the EA, the no action alternative for each species is
defined as the continuation of the management measures as codified for
the 2008 fishing season. The no-action measures were analyzed in
Alternative 2 for each species in the Council's EA/RIR/IRFA.
For summer flounder, state-specific implications of the no-action
(coastwide) alternative of a 20.0-inch (50.80-cm) minimum fish size, a
two-fish possession limit, and a May 1 through September 30, 2009,
fishing season would not achieve the mortality objectives required,
and, therefore, cannot be continued for the 2009 fishing season.
Similarly, the no-action alternative for black sea bass (a 12.0-in
(30.48-cm) minimum fish size, a 25-fish possession limit, and no closed
fishing season) would result in fishing mortality that exceeds the
level established for 2009 and, therefore, cannot be continued for the
2009 fishing season. This rule implements the no-action alternative for
scup (i.e., status quo). The implications of so doing are not
substantial; the management measures remain the same as those in place
for 2008. Council analysis indicates that minimal impact may occur even
with continuation of the status quo scup measures. These impacts would
likely result from changes in year-to-year costs associated with
fishing for scup.
Summer flounder alternatives. In seeking to minimize the impact of
recreational management measures (minimum fish size, possession limit,
and fishing season) on small entities (i.e., Federal party/charter
permit holders), NMFS is constrained to implementing measures that meet
the conservation objectives of the FMP and Magnuson-Stevens Act
rebuilding program requirements. As previously indicated, the no-action
alternative for summer flounder was considered but rejected by the
Council, and subsequently NMFS, on the grounds that analysis indicated
it would not ensure that the 2009 mortality objectives would be met.
The remaining alternatives examined by the Council and forwarded for
consideration by NMFS consisted of the preferred alternative of state-
by-state conservation equivalency with a precautionary default
backstop, and the non-preferred alternative of coastwide measures.
These were alternatives 1 and 2, respectively, in the Council's EA/RIR/
IRFA. These two alternatives were determined by the Council analyses to
satisfy the 2009 conservation objectives for the recreational fishery,
i.e., analysis indicated that implementation of either would constrain
recreational landings within the 2009 recreational harvest limit.
Therefore, either alternative recreational management system could be
considered for implementation by NMFS, as the critical metric of
satisfying the regulatory and statutory requirements would be met by
either.
Next, NMFS considered the recommendation of both the Council and
Commission. Both groups recommended implementation of state-by-state
conservation equivalency, with a precautionary default backstop. The
recommendations of both groups were not unanimous: New York
representatives dissented and voted against conservation equivalency in
the Commission proceedings, and the Council representatives from New
York likewise voted against continued recommendation of conservation
equivalency in 2009.
The conservation equivalency approach allows states some degree of
flexibility in the specification of management measures, unlike the
application of one set of uniform coastwide measures. The degree of
flexibility available to states under conservation equivalency is
constrained to a combined suite of minimum fish size, possession limit,
and fishing season that will achieve the required percent reduction
required for 2009 (i.e., achieve the conservation objectives). This
provides the opportunity for states to construct measures that achieve
the conservation objectives while providing a state-specific set of
measures in lieu of the one-size-fits-all coastwide measure. States
that fail to provide measures, or whose measures do not achieve the
required reduction, are assigned the more restrictive precautionary
default measures. For 2009, the Commission required that states
obligated to reduce their 2009 landings under the conservation
equivalency program do so by manipulating the fishing season through
either periodic fishery closures or shortened overall fishing seasons.
Specifically, the Commission required that at least 50 percent of any
required reduction in landings was to occur as the result of season
manipulation, with the remainder of any reduction achieved through
modification to minimum fish size and/or possession limits. This
[[Page 30010]]
recommendation follows advice provided by the Commission's Technical
Committee and Council's Summer Flounder Monitoring Committee that
modification to fishing season is a more effective means of ensuring
landings reduction than are either changes to minium fish size or
possession limit.
At this time, it is not possible to determine the precise economic
impact on small entities under conservation equivalency. The specific
measures adopted for each state were only made available to NMFS from
the Commission on May 7, 2009, and were unavailable for analysis during
this rulemaking. Because the recreational fisheries in many states will
have begun by the time this rule is effective, NMFS has elected to
forego quantitative analysis of the specific conservation equivalency
measures as implemented by the individual states, as the need to have
measures in place in a timely fashion outweighs the benefits of
delaying publication of this rule to complete further analysis.
However, economic impact is likely to be proportional to the level of
landings reductions required for each individual state. As such, the
greater the percent reduction required for states in 2009 (Table 4),
the greater the potential for higher economic impacts on small entities
in comparison to coastwide measures dependent on the configuration of
management measures ultimately selected.
Table 4. 2009 State-by-State Percent Summer Flounder Recreational Fishery Landings Reduction Required Under Framework Adjustment 2 Conservation
Equivalency Program.\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
State MD RI CT NY NJ DE MD VA NC
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent Required Reduction 24 42 35 39 7 0 51 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Based on a 70.4-percent reduction from 1998 landings and a 12.0-percent reduction from 2008 landings.
For NMFS to disapprove the Council's recommendation for
conservation equivalency and substitute coastwide management measures,
NMFS must reasonably demonstrate that the recommended measures are
either inconsistent with applicable law or demonstrate that the
conservation objectives of the FMP will not be achieved by implementing
conservation equivalency. NMFS does not find the Council and
Commission's recommendation to be inconsistent with the implementing
regulations of the FMP found at Sec. 648.100 or the Magnuson-Stevens
Act. Furthermore, NMFS finds that the Commission requirement to
manipulate fishing seasons for at least half of the state's 2009
reductions is a novel, continued demonstration to try and improve the
performance of conservation equivalency. In 2008, the Commission
implemented an additional performance based adjustment that further
increased several state's required reductions for the year. This
performance-based adjustment did not prevent the 2008 recreational
harvest limit from being exceeded. Accordingly, the Commission has
required a different approach for 2009, with the expectation that it
will be more effective than the system in place for 2008.
The use of coastwide management measures was considered by NMFS. In
fact, as commenters stated in response to the proposed rule, NMFS had
previously advocated for a coastwide approach in the early stages of
past years' recreational fishery management measures development. The
economic impacts on small entities under the coastwide measures
management system would vary in comparison to the conservation
equivalency system dependent on the specific state wherein the small
entities operate. In the Council's provided analysis, closed seasons
typically result in a higher economic impact to small entities than do
increases in minimum fish sizes or reduction in possession limits. The
reason for this is that angler success begins to decline at higher
minimum fish size and higher possession limits, yielding lower return
on the effectiveness of implementing such measures. Closed seasons,
however, are unmistakable in their effectiveness as they permit no
harvest irrespective of fish size or possession limit, provided there
are no compliance issues. Closed seasons also are typically more easily
enforceable. The interplay between the three management measures and
the inability to quantitatively assess the impacts of the state's
implemented conservation equivalency measures make definitive
statements regarding impacts difficult to provide. Both fishery
independent and dependent data suggest that larger summer flounder are
less common in the southern portion of the management range; therefore,
implementation of coastwide measures may have a more profound economic
impact on small entities operating in the southern portion of the
management area if the minimum fish size is set larger than fish that
are typically available in southern states. Conservation equivalency is
generally expected to mitigate the economic impact in states with lower
required percent reductions for 2009 compared to the 12-percent
coastwide reduction that would be necessary were coastwide measures
employed. In those states, management measures can be tailored to suit
the expressed needs of both small entities and other recreational
fishery participants while achieving the required conservation
equivalency percent reduction. Conversely, coastwide measures may yield
lower economic impacts for states with the percent reductions greater
than the total coastwide level of reduction required for 2009 by
permitting smaller minimum fish sizes paired with slightly lower
possession limits, and comparable fishing seasons than would be
required to be implemented under conservation equivalency.
NMFS is implementing the Council and Commission's recommended
state-by-state conservation equivalency measures for the reasons
previously stated: (1) The state-by-state conservation equivalency
management system has again been modified, by the Commission, from the
previously utilized methodology that reduced the magnitude of exceeding
the recreational harvest limit in 2008 but ultimately did not ensure
landings remained below the desired level; and (2) NMFS finds no
compelling reason to disapprove the Council and Commission's
recommended 2009 management system, as the analysis provided by the
Commission's Technical Committee demonstrates that the improved
conservation equivalency system will provide a high likelihood that the
2009 recreational harvest limit will not be exceeded. To further ensure
that the 2009 recreational harvest limit is not exceeded, NMFS is
prepared to close the EEZ during the fishing season if harvest
projections indicate that the 2009 recreational harvest limit may be
exceeded before the end of the calendar year.
Black sea bass alternatives. Similar to summer flounder, the
options available
[[Page 30011]]
for black sea bass recreational management measures are constrained to
selecting a suite of minimum fish size, possession limit, and fishing
season measures that achieves the annual conservation objectives. In
this case, the conservation objective is a level of recreational black
sea bass landings that is below the 2009 recreational harvest level.
Therefore, the selection of measures available to mitigate the economic
impact on small entities is constrained to those measures that will
permit the maximum amount of recreational landings while achieving the
specified conservation objectives for the fishing season.
For 2009, a coastwide reduction in black sea bass landings of 10.0
percent is necessary to achieve the conservation objective. The
Council's EA/RIR/IRFA evaluated alternatives 1 and 3 for black sea
bass, which would achieve this objective. The Council recommended, and
NMFS is implementing, Alternative 1, consisting of a half-inch increase
in minimum fish size from 12.0 to 12.5 inches (30.48 cm to 31.75 cm)
and maintenance of the status quo 25-fish possession limit and year-
round season (January 1-December 31, 2009), because it is projected to
achieve a 12.0-percent reduction in black sea bass recreational
landings in 2009. Alternative 3, consisting of a 12.0-inch (30.48-cm)
minimum fish size, a 25-fish possession limit, and fishing seasons
January 1 through May 15 and June 15 through December 31, 2009, is
projected to reduce landings by 13.3 percent from 2008 levels. The
measures of this alternative are more restrictive than necessary to
achieve the conservation objectives for 2009 and were not recommended
by either the Council or Commission. Therefore, this rule implements
the increased minimum fish size contained in Alternative 1, as
recommended by both the Council and Commission.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a letter to permit holders that also serves as
the small entity compliance guide was prepared and will be sent to all
holders of Federal party/charter permits issued for the summer
flounder, scup, and black sea bass fisheries. In addition, copies of
this final rule and
