Fisheries of the Northeastern United States; Recreational Management Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing Year 2010, 22087-22094 [2010-9729]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0907211158-91159-01]
RIN 0648-AY04


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

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

ACTION: Proposed rule; request for comments.

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

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

ADDRESSES: You may submit comments, identified by 0648-AY04, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal https://www.regulations.gov
     Fax: (978) 281-9135, Attn: Comments on 2010 Summer 
Flounder, Scup, and Black Sea Bass Recreational Management Measures, 
0648-AY04
     Mail and hand delivery: Patricia A. Kurkul, Regional 
Administrator, NMFS, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope: 
``Comments on 2010 Summer Flounder, Scup, and Black Sea Bass 
Recreational Measures, 0648-AY04.''
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to https://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Copies of the recreational management measures document, including 
the Environmental Assessment, Regulatory Impact Review, and Initial 
Regulatory Flexibility Analysis (EA/RIR/IRFA) and other supporting 
documents for the recreational management measures are available from 
Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management 
Council, 800 N. State Street, Suite 201, Dover, DE 19901. These 
documents are also accessible via the Internet at https://www.nero.noaa.gov.

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

SUPPLEMENTARY INFORMATION:

Background

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

[[Page 22088]]

    The FMP established Monitoring Committees (Committees) for the 
three fisheries, consisting of representatives from the Commission, the 
Council, state marine fishery agency representatives from MA to NC, and 
NMFS. The FMP and its implementing regulations require the Committees 
to review scientific and other relevant information annually and to 
recommend management measures necessary to achieve the recreational 
harvest limits established for the summer flounder, scup, and black sea 
bass fisheries for the upcoming fishing year. The FMP limits these 
measures to minimum fish size, possession limit, and fishing season.
    The Council's Demersal Species Committee, and the Commission's 
Summer Flounder, Scup, and Black Sea Bass Management Board (Board) then 
consider the Committees' recommendations and any public comment in 
making their recommendations to the Council and the Commission, 
respectively. The Council then reviews the recommendations of the 
Demersal Species Committee, makes its own recommendations, and forwards 
them to NMFS for review. The Commission similarly adopts 
recommendations for the states. NMFS is required to review the 
Council's recommendations to ensure that they are consistent with the 
targets specified for each species in the FMP before ultimately 
implementing measures for Federal waters.
    Quota specifications for the 2010 summer flounder, scup, and black 
sea bass fisheries were published on December 22, 2009 (74 FR 67978), 
and became effective January 1, 2010. The black sea bass specifications 
(i.e., recreational harvest limit and commercial quota) were increased 
by emergency rule on February 10, 2010 (75 FR 6586). Based on the 
specifications, the 2010 coastwide recreational harvest limits are 
8,586,440 lb (3,896 mt) for summer flounder, 3,011,074 lb (1,366 mt) 
for scup, and 1,830,390 lb (830 mt) for black sea bass. The 
specification rules did not establish recreational measures, in large 
part because a substantial portion of 2009 recreational catch data was 
not yet available when the Council made its recreational harvest limit 
recommendation to NMFS.
    All minimum fish sizes discussed hereafter are total length 
measurements of the fish, i.e., the straight-line distance from the tip 
of the snout to the end of the tail while the fish is lying on its 
side. For black sea bass, total length measurement does not include the 
caudal fin tendril. All possession limits discussed below are per 
person. All landings projection data are based on data from the Marine 
Recreational Fisheries Statistics Survey (MRFSS) Waves 1-4 (January-
August) unless otherwise indicated.

Summer Flounder

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

[[Page 22089]]

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

Scup

    The 2010 scup recreational harvest limit is 3.01 million lb (1,366 
mt), a 16-percent increase from the 2009 recreational harvest limit of 
2.59 million lb (1,175 mt). Recreational landings in 2009 are estimated 
to have been 4.01 million lb (1,819 mt), exceeding the recreational 
harvest limit by 55 percent. Because of this overage, recreational 
landings must be reduced by 30 percent from 2009 levels for the 2010 
fishery to stay within the established recreational harvest limit.
    However, the Council initially recommended measures that would 
reduce 2010 landings by 35 percent to remain within the 2010 
recreational harvest limit based on a preliminary landings estimate 
that was slightly higher. The Council's recommendation was made in 
early December and, subsequent to the Council's recommendation, and 
subsequent additional analysis of the 2009 recreational landings has 
been conducted by a technical working group at the request of the 
Council, Commission, and NMFS. The working group was tasked to re-
examine a specific situation regarding anomalies from the MRFSS Wave 4 
Massachusetts party vessel sector estimate. The analysis conducted by 
this working group resulted in a revised Wave 4 estimate that changed 
the level of reduction from 2009 landing levels required for 2010 from 
35 to 30 percent. As a result, the Council's preferred alternative for 
an 11.0-inch (27.94-cm) minimum fish size, a 10-fish per person 
possession limit, and open fishing seasons of January 1-February 28 and 
June 12-September 26 is more restrictive than necessary to remain 
within the 2010 recreational harvest limit.
    The Council also considered an alternative that is projected to 
provide the revised 30-percent reduction from 2009 landings in 2010: A 
10.5-inch (26.67-cm) minimum fish size; a 10-fish per person possession 
limit; and an open season of June 6-September 26. Consistent with the 
revised catch analysis for 2009, NMFS proposes to implement the 
Council's non-preferred suite of measures that achieve the 30-precent 
reduction in 2010 landings from 2009 levels for Federal waters in the 
2010 scup recreational fishery: A 10.5-inch (26.67-cm) minimum fish 
size; a 10-fish per person possession limit; and an open season of June 
6-September 26. NMFS acknowledges that the Commission meeting has 
indicated its intent to continue managing the recreational scup fishery 
through a Commission-based conservation equivalency program that has no 
comparable measures in the Federal FMP. Preliminary information 
presented during the February 2010 Commission indicated that the 
Commission's 2010 scup recreational measures for state waters may 
differ from the measures of this proposed rule. Very little of the scup 
recreational harvest comes from the Federal waters of the EEZ. The 
total scup recreational harvest from Federal waters for 2008 was 
approximately 4 percent.

Black Sea Bass

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

[[Page 22090]]

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

Classification

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

[[Page 22091]]

IRFA is available from the Council (see ADDRESSES).
    This proposed rule does not duplicate, overlap, or conflict with 
other Federal rules. The proposed action could affect any recreational 
angler who fishes for summer flounder, scup, or black sea bass in the 
EEZ or on a party/charter vessel issued a Federal permit for summer 
flounder, scup, and/or black sea bass. However, the only regulated 
entities affected by this action are party/charter vessels issued a 
Federal permit for summer flounder, scup, and/or black sea bass, and so 
the IRFA focuses upon the expected impacts on this segment of the 
affected public. These vessels are all considered small entities for 
the purposes of the RFA, i.e., businesses in the recreational fishery 
with gross revenues of up to $6.5 million. These small entities can be 
specifically identified in the Federal vessel permit database and would 
be impacted by the recreational measures, regardless of whether they 
fish in Federal or state waters. Although fishing opportunities by 
individual recreational anglers may be impacted by this action, they 
are not considered small entities under the RFA.
    The Council estimated that the proposed measures could affect any 
of the 948 vessels possessing a Federal charter/party permit for summer 
flounder, scup, and/or black sea bass in 2009, the most recent year for 
which complete permit data are available. However, only 328 vessels 
reported active participation in the recreational summer flounder, 
scup, and/or black sea bass fisheries in 2008, the most recent year for 
which complete fishing vessel trip reports (i.e., logbooks) are 
available.
    In the IRFA, the no-action alternative (i.e., maintenance of the 
regulations as codified) is defined as implementation of the following: 
(1) For summer flounder, coastwide measures of a 20-inch (50.8-cm) 
minimum fish size, a 2-fish possession limit, and a season from May 1 
through September 30; (2) for scup, a 10.5-inch (26.67-cm) minimum fish 
size, a 15-fish possession limit, and open seasons of January 1 through 
February 28, and October 1 through October 31; and (3) for black sea 
bass, a 12-inch (30.48-cm) minimum size, a 25-fish possession limit, 
and an open season of January 1 through December 31.
    The impacts of the proposed action on small entities (i.e., 
federally permitted party/charter vessels in each state in the 
Northeast region) were analyzed, assessing potential changes in gross 
revenues for all 24 combinations of alternatives proposed. Although 
NMFS's RFA guidance recommends assessing changes in profitability as a 
result of proposed measures, the quantitative impacts were instead 
evaluated using changes in party/charter vessel revenues as a proxy for 
profitability. This is because reliable cost and revenue information is 
not available for charter/party vessels at this time. Without reliable 
cost and revenue data, profits cannot be discriminated from gross 
revenues. As reliable cost data become available, impacts to 
profitability can be more accurately forecast. Similarly, changes to 
long-term solvency were not assessed, due both to the absence of cost 
data and because the recreational management measures change annually 
according to the specification-setting process. Effects of the various 
management measures were analyzed by employing quantitative approaches, 
to the extent possible. Where quantitative data were not available, 
qualitative analyses were utilized. Management measures proposed under 
the summer flounder conservation equivalency alternative (Summer 
Flounder Alternative 1) have yet to be adopted; therefore, potential 
losses under this alternative could not be analyzed in conjunction with 
various alternatives proposed for scup and black sea bass. Since 
conservation equivalency allows each state to tailor specific 
recreational fishing measures to the needs of that state, while still 
achieving conservation goals, it is likely that the measures developed 
under this alternative, when considered in combination with the 
measures proposed for scup and black sea bass, would have fewer overall 
adverse effects than any of the other combinations that were analyzed.
    Impacts for other combinations of alternatives were examined by 
first estimating the number of angler trips aboard party/charter 
vessels in each state in 2009 that would have been affected by the 
proposed 2010 management measures. All 2009 party/charter fishing trips 
that would have been constrained by the proposed 2010 measures in each 
state were considered to be affected trips. MRFSS data indicate that 
anglers took 34.66 million fishing trips in 2009 in the Northeastern 
U.S., and that party/charter anglers accounted for 1.41 million of the 
angler fishing trips, private/rental boat trips accounted for 17.34 
million angler fishing trips, and shore trips accounted for 15.91 
million recreational angler fishing trips.
    There is very little empirical evidence available to estimate how 
the party/charter vessel anglers might be affected by the proposed 
fishing regulations. If the proposed measures discourage trip-taking 
behavior among some of the affected anglers, economic losses may accrue 
to the party/charter vessel industry in the form of reduced access 
fees. On the other hand, if the proposed measures do not have a 
negative impact on the value or satisfaction the affected anglers 
derive from their fishing trips, party/charter revenues would remain 
unaffected by this action. In an attempt to estimate the potential 
changes in gross revenues to the party/charter vessel industry in each 
state, two hypothetical scenarios were considered: A 25-percent 
reduction and a 50-percent reduction in the number of fishing trips 
that are predicted to be affected by implementation of the management 
measures in the Northeast (ME through NC) in 2010.
    Total economic losses to party/charter vessels were then estimated 
by multiplying the number of potentially affected trips in each state 
in 2010, under the two hypothetical scenarios, by the estimated average 
access fee of $62.38 paid by party/charter anglers in the Northeast in 
2009. Finally, total economic losses were divided by the number of 
federally permitted party/charter vessels that participated in the 
summer flounder fisheries in 2009 in each state (according to homeport 
state in the Northeast Region Permit Database) to obtain an estimate of 
the average projected gross revenue loss per party/charter vessel in 
2010. The analysis assumed that angler effort and catch rates in 2010 
will be similar to 2009.
    The Council noted that this method is likely to overestimate the 
potential revenue losses that would result from implementation of the 
proposed measures in these three fisheries for several reasons. First, 
the analysis likely overestimates the potential revenue impacts of 
these measures because some anglers would continue to take party/
charter vessel trips, even if the restrictions limit their landings. 
Also, some anglers may engage in catch and release fishing and/or 
target other species. It was not possible to estimate the sensitivity 
of anglers to specific management measures. Second, the universe of 
party/charter vessels that participate in the fisheries is likely to be 
even larger than presented in these analyses, as party/charter vessels 
that do not possess a Federal summer flounder, scup, or black sea bass 
permit because they fish only in state waters are not represented in 
the analyses. Considering the large proportion of landings from state 
waters (e.g., more than 97 percent of summer flounder and 96 percent of 
scup landings in 2008, respectively), it

[[Page 22092]]

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

Impacts of Summer Flounder Alternatives

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

Impacts of Scup Alternatives

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

[[Page 22093]]

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

Impacts of Black Sea Bass Alternatives

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

Potential 2010 Regional Economic Impact Analysis Summary

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

Summary

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

[[Page 22094]]

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

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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


Sec.  648.102  Time restrictions.

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


Sec.  648.103  Minimum fish sizes.

* * * * *
    (b) Unless otherwise specified pursuant to Sec.  648.107, the 
minimum size for summer flounder is 19.5 inch (49.53 cm) TL for all 
vessels that do not qualify for a moratorium permit, and charter boats 
holding a moratorium permit if fishing with more than three crew 
members, or party boats holding a moratorium permit if fishing with 
passengers for hire or carrying more than five crew members.
* * * * *
    4. In Sec.  648.105, the first sentence of paragraph (a) is revised 
to read as follows:


Sec.  648.105  Possession restrictions.

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


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

    (a) The Regional Administrator has determined that the recreational 
fishing measures proposed to be implemented by Massachusetts through 
North Carolina for 2010 are the conservation equivalent of the season, 
minimum fish size, and possession limit prescribed in Sec. Sec.  
648.102, 648.103, and 648.105(a), respectively. This determination is 
based on a recommendation from the Summer Flounder Board of the 
Atlantic States Marine Fisheries Commission.
* * * * *
    (b) Federally permitted vessels subject to the recreational fishing 
measures of this part, and other recreational fishing vessels subject 
to the recreational fishing measures of this part and registered in 
states whose fishery management measures are not determined by the 
Regional Administrator to be the conservation equivalent of the season, 
minimum size, and possession limit prescribed in Sec. Sec.  648.102, 
648.103(b) and 648.105(a), respectively, due to the lack of, or the 
reversal of, a conservation equivalent recommendation from the Summer 
Flounder Board of the Atlantic States Marine Fisheries Commission, 
shall be subject to the following precautionary default measures: 
Season -- May 1 through September 30; minimum size- 21.5 inches (54.61 
cm); and possession limit-two fish.
    6. In Sec.  648.122, paragraph (g) is revised to read as follows:


Sec.  648.122  Season and area restrictions.

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


Sec.  648.122  Possession limit.

    (a) No person shall possess more than 10 scup in, or harvested 
from, the EEZ unless that person is the owner or operator of a fishing 
vessel issued a scup moratorium permit, or is issued a scup dealer 
permit.***
* * * * *
    8. Section 648.142 is revised to read as follows:


Sec.  648.142  Time restrictions.

    Vessels that are not eligible for a moratorium permit under Sec.  
648.4(a)(7), and fishermen subject to the possession limit specified in 
Sec.  648.145(a), may possess black sea bass from May 22 through August 
8 and September 4 through October 4, unless this time period is 
adjusted pursuant to the procedures in Sec.  648.140.

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