03-19133. Fisheries of the Northeastern United States; Recreational Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing Year 2003

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement recreational measures for the 2003 summer flounder, scup, and black sea bass fisheries. The intent of these measures is to prevent overfishing of the summer flounder, scup, and black sea bass resources.

DATES:

Effective July 28, 2003.

ADDRESSES:

Copies of supporting documents used by the Summer Flounder, Scup, and Black Sea Bass Monitoring Committee and of the Environmental Assessment, Regulatory Impact Review, Initial Regulatory Flexibility Analysis (EA/RIR/IRFA), and Final Regulatory Flexibility Analysis (EA/RIR/FRFA) are available from Patricia A. Kurkul, Regional Administrator, Northeast Region, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-2298. The EA/RIR/IRFA is also accessible via the Internet at http:/www.nero.nmfs.gov.

FOR FURTHER INFORMATION CONTACT:

Sarah McLaughlin, Fishery Policy Analyst, [phone], fax [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Background

The Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) and its implementing regulations found at 50 CFR part 648, subparts A, G (summer flounder), H (scup), and I (black sea bass), describe the process for specifying annual recreational measures. Final quota specifications for the 2003 summer flounder, scup, and black sea bass fisheries were published on January 2, 2003 (68 FR 60); a correction notice was published on March 3, 2003 (68 FR 9905). These specifications were determined to be consistent with the 2003 target fishing mortality rate (F) for summer flounder and the target exploitation rates for scup and black sea bass. The 2003 coastwide recreational harvest limits are 9.28 million lb (4,209 mt) for summer flounder, 4.01 million lb (1,819 mt) for scup, and 3.43 million lb (1,557 mt) for black sea bass.

The proposed rule to implement annual Federal recreational measures for the 2003 summer flounder, scup, and black sea bass fisheries was published on May 21, 2003 (68 FR 27768), and contained management measures (minimum fish sizes, possession limits, and fishing seasons) intended to keep annual recreational landings from exceeding the specified harvest limits. A complete discussion of the development of the recreational measures appeared in the preamble of the proposed rule and is not repeated here.

The recreational measures for scup and black sea bass contained in this final rule are unchanged from those published in the proposed rule. Table 1 contains the coastwide Federal measures for scup and black sea bass that are being implemented. For summer flounder, this final rule implements conservation equivalency, as the process was described in the proposed rule. The management measures will vary according to the state of landing (see Table 2). All minimum fish sizes discussed below are total length (TL) 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.

Table 1 - 2003 Recreational Measures

Species	Minimum Size (total length)	Possession Limit	Open Season
Summer Flounder		Varies according to state of landing
Scup	10 inches (25.4 cm)	50 fish	January 1 through February 28, and July 1 through November 30
Black Sea Bass	12 inches (30.5 cm)	25 fish	January 1 through September 1, and September 16 through November 30

Table 2 - 2003 State Recreational Management Measures for Summer Flounder

State	Minimum Size (inches)	Minimum size (cm)	Possession Limit	Open Seasons
MA	16.5	41.9	7 fish	Year-Round
RI	17.5	44.5	5 fish	May 1 through September 20
CT	17	43.2	6 fish	Year-Round
NY	17	43.2	7 fish	Year-Round
NJ	16.5	41.9	8 fish	May 3 through October 13
DE	17.5	44.5	4 fish	Year-Round
MD	17	43.2	8 fish	Year-Round
VA	17.5	44.5	8 fish	March 29 through December 31
NC	15	38.1	8 fish	Year-Round

Changes from the Proposed Rule

Section 648.107(a) is corrected to clarify that the recreational measures proposed to be implemented by the states of Maine through North Carolina for 2003 are the conservation equivalent of the non-preferred (i.e., to be implemented in the Exclusive Economic Zone if conservation equivalency is not implemented) coastwide season, minimum size, and possession limit prescribed in §§ 648.102, 648.103, and 648.105(a), as identified in the proposed rule.

There were no public comments received on the proposed rule.

Classification

This final rule has been determined to be not significant for purposes of E.O. 12866.

This action establishes recreational management measures for federally permitted vessels participating in the recreational fishery, specifically party/charter vessels. The recreational summer flounder, scup, and black sea bass fisheries are fully underway. In 2002, recreational black sea bass landings exceeded the recreational harvest limit by approximately 30 percent. This information was not available until development of this rule was begun. Immediate action to impose a more stringent minimum fish size in the black sea bass fishery must be taken to slow the recreational harvest of black sea bass and enhance the probability that the black sea bass harvest limit will not be exceeded in 2003. For summer flounder, this action is necessary to achieve consistency between state and Federal measures. Recreational summer flounder landings have exceeded the recreational harvest limits by an average of 50 percent over the 1996-2002 period. Failure to implement these provisions immediately could result in similar overharvest in 2003. Furthermore, because the Federal fishery is currently operating under status quo measures and the states have already implemented measures for state waters, inconsistencies between state and Federal regulations also can lead to confusion for operators of federally-permitted vessels. The Assistant Administrator for Fisheries, NOAA (AA), therefore finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness of the 2003 summer flounder and black sea bass recreational measures.

For the scup fishery, the recreational sector is currently fishing under the Federal EEZ measures, which allow for a possession limit of only 20 fish. This final rule will increase the possession limit to 50 fish, thereby relieving the possession limit restriction. This increase is being implemented to allow the recreational fishing sector to achieve the recreational harvest limit. The improving status of these fisheries has allowed NOAA Fisheries to implement these regulations, which provide some relief to the recreational sector from the current, more restrictive, measures. Implementation of the revised possession limit as soon as possible is important to allow for the increased scup fishing opportunities intended by the Council in amending this regulation. Because the increase to the possession limit relieves a restriction on the recreational fishing industry, the AA finds that the 30-day delayed effectiveness period of the scup regulations contained within this final rule does not apply, pursuant to 5 U.S.C. 553(d)(1).

Included in this final rule is the Final Regulatory Flexibility Analysis prepared pursuant to 5 U.S.C. 604(a). The FRFA is composed of the IRFA, the comments (and responses) on the proposed rule, and the analyses completed in support of this action.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

A description of the reasons why action by the agency is being taken and the objectives of this final rule are explained in the preambles to the proposed rule and this final rule and are not repeated here.

Summary of Significant Issues Raised in Public Comments

No comments were received on the economic impacts of the measures contained in the proposed rule.

Description and Estimate of Number of Small Entities to which Rule Will Apply

The Mid-Atlantic Fishery Management Council (Council) estimated that the proposed action could affect any of the 760 vessels possessing a Federal party/charter permit for summer flounder, scup, and/or black sea bass in 2001, the most recent year for which complete permit data are available. Only 368 of these vessels reported active participation in the recreational summer flounder, scup, and/or black sea bass fisheries in 2001.

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

It is not possible to further mitigate economic impacts on small entities because the Council selected the alternative with least significant impacts relative to the other alternatives determined to achieve the biological objectives. Specifications of recreational fish size limits, possession limits, and open fishing seasons is constrained by the conservation objectives of the FMP, and implemented at 50 CFR part 648 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

The economic analysis 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 implemented for the 2002 fishing season. The Council did not analyze an alternative combining the status quo measures in place for all three species. In consideration of the Council-recommended recreational harvest limits established for the 2003 fishing year, implementation of the same recreational measures established for the 2002 fishing year would be inconsistent with the goals and objectives of the FMP and its implementing regulations, and, because it could result in overfishing of the black sea bass fishery, it also would be inconsistent with National Standard 1 of the Magnuson-Stevens Act. Therefore, the no action alternative was not considered to be a reasonable alternative to the preferred action and its collective impacts were not analyzed in the EA/RIR/IRFA. The no action measure for summer flounder was analyzed in Alternative 1, in combination with preferred measures for scup and black sea bass. The no action measures for scup and black sea bass were considered as part of Alternative 2, in combination with the non-preferred coastwide measures for summer flounder, i.e., the measures that would be implemented if conservation equivalency were not implemented in the final rule. A summary of the economic impacts of the measures to be implemented follow.

Impacts of Summer Flounder Alternatives

Landings projections for 2002 indicate that Virginia (VA) is the only state required to reduce summer flounder landings (by 11 percent) in 2003. States other than VA do not require any reductions in recreational summer flounder landings, if their current regulations are maintained. At this time, it is not possible to determine the economic impact of conservation equivalency for Virginia. However, it may be proportional to the level of landings reductions required. If the preferred conservation equivalency alternative is effective at achieving the recreational harvest limit, then it is likely to be the only alternative that minimizes economic impacts, to the extent practicable, yet achieves the biological objectives of the FMP. Because states have a choice of specific measures to implement, it is more rational for the states to adopt conservation equivalent measures that result in fewer adverse economic impacts than to adopt the much more restrictive measures contained in the precautionary default alternative.

The impacts of the non-preferred summer flounder coastwide alternative (in Alternative 2), which proposes a 17-inch (43.2-cm) minimum fish size, a possession limit of four fish per person, and no closed season, were evaluated. Impacted trips were defined as individual angler trips taken aboard party/charter vessels in 2002 that landed at least one summer flounder smaller than 17 inches (43.2 cm), or that landed more than four summer flounder. The analysis concluded that the measures would affect 1 percent or less of the party/charter trips in most states, with state revenue losses identified for Massachusetts (MA) ($927), Rhode Island (RI) ($15,850), New York (NY) ($155,636), New Jersey (NJ) ($22,208), Delaware (DE) ($570), Maryland (MD) ($570), VA ($7,362), and North Carolina (NC) ($161). (These figures are for all vessels operating in each state, rather than for each vessel). No state revenue losses were identified for Maine (ME), New Hampshire (NH), or Connecticut (CT).

The average maximum gross revenue loss per party/charter vessel was estimated to be $9 in MA, $634 in RI, $2,993 in NY, $347 in NJ, $285 in DE, $190 in MD, $409 in VA, and $23 in NC. As discussed in the proposed rule, it is very likely that the Council's analysis of economic impacts overestimates potential revenue impacts of the proposed measures, since some anglers would continue to take party/charter vessel trips, even if the restrictions limit their landings, because they participate in catch and release fishing or target other species.

Precautionary default measures are defined as measures that would achieve at least the overall required reduction in landings for each state. The precautionary default measures specified by the Council and the Council's Demersal Species Committee and the Commission's Summer Flounder, Scup, and Black Sea Bass Management Board (in Alternative 3) consists of an 18-inch (45.7-cm) minimum fish size, a possession limit of one fish per person, and no closed season.

The precautionary default measures would reduce state specific landings by a range of 41 percent (DE) to 88 percent (NC). As specified by Framework 2 to the FMP, states that fail to implement conservation equivalent measures would be required to implement precautionary default measures. The state-specific landings reductions associated with the precautionary default measures are substantially higher than the reductions that would be implemented using conservation equivalency. As such, it is expected that states will avoid the impacts of precautionary approach measures by establishing conservation equivalent management measures. Therefore, the precautionary default provision that is included in the conservation equivalency proposal was not analyzed as a separate provision.

Impacts of Scup Alternatives

The proposed action for scup would limit coastwide landings to 4.01 million lb (1,819 mt) and reduce landings by at least 27 percent compared to 2001. The overall estimated economic impacts of the proposed action are less than the impacts that would result from implementation of either of the other scup alternatives analyzed.

For the preferred scup alternative (in Alternative 1), impacted trips were defined as individual angler trips taken aboard party/charter vessels in 2002 that landed at least one scup smaller than 10 inches (25.4 cm), that landed more than 50 scup, or that landed at least one scup during the proposed closed seasons of March 1 through June 30, and December 1 through December 31. The analysis concluded that the measures would affect 10 percent of the party/charter trips in MA and 1 percent or less of the party/charter trips in five states, with statewide revenue losses identified for MA ($421,057), RI ($2,324), NY ($1,829), NJ ($6,475), MD ($25,450), and NC ($8,064).

The average maximum gross revenue loss per party/charter vessel associated with the preferred scup alternative was estimated to be $8,593 in MA, $166 in RI, $59 in NY, $185 in NJ, $25,450 in MD, and $2,688 in NC.

For the scup no action alternative (in Alternative 2), impacted trips were defined as individual angler trips taken aboard party/charter vessels in 2002 that landed at least one scup smaller than 10 inches (25.4 cm), that landed more than 20 scup, or that landed at least one scup during the periods of March 1 through June 30, and October 3 through December 31. The analysis concluded that the measures would affect 11 percent of angler trips taken aboard party/charter boats in MA, 4 percent in RI, 5 percent in NY, and less than 1 percent in NJ, DE, MD, and NC, with statewide revenue losses identified for MA ($486,423), RI ($55,664), NY ($702,429), NJ ($67,060), MD ($25,450), and NC ($8,064). No state revenue losses were identified for ME, NH, CT, DE, or VA.

The average maximum gross revenue loss per party/charter vessel associated with this alternative was estimated to be $9,927 in MA, $3,976 in RI, $22,659 in NY, $1,916 in NJ, $25,450 in MD, and $2,688 in NC.

For the scup measures considered in Alternative 3, impacted trips were defined as individual angler trips taken aboard party/charter vessels in 2002 that landed at least one scup smaller than 10 inches (25.4 cm), that landed more than 50 scup, or that landed at least one scup during the period March 1 through July 13. The analysis concluded that the measures in this alternative would affect 11 percent of the party/charter trips in MA and 1 percent or less of the party/charter trips in most states, with statewide revenue losses identified for MA ($469,518), RI ($9,576), NY ($81,902), NJ ($19,880), MD ($25,450), and NC ($8,064). No state revenue losses were identified for ME, NH, CT, DE, or VA.

The average maximum gross revenue loss per party/charter vessel associated with this alternative was estimated to be $9,582 in MA, $684 in RI, $2,642 in NY, $568 in NJ, $25,450 in MD, and $2,688 in NC.

Impacts of Black Sea Bass Alternatives

The proposed action for black sea bass would limit coastwide landings to 3.43 million lb (1,557 mt) and reduce landings by at least 27 percent compared to 2002. Although the economic impacts of the preferred alternative (in Alternative 1) are greater than for the status quo measures (in Alternative 2), Alternative 1 was selected for implementation because it is expected to achieve the necessary reduction in landings relative to 2002, consistent with the goals and objectives of the FMP, while resulting in less economic impact than would the measures in Alternative 3.

For the preferred black sea bass alternative, impacted trips were defined as individual angler trips taken aboard party/charter vessels in 2002 that landed at least one black sea bass smaller than 12 inches (30.5 cm), that landed more than 25 black sea bass, or that landed at least one black sea bass during the proposed closed seasons of September 2 through September 15, and December 1 through December 31. The analysis concluded that the measures would affect 3 percent of the party/charter trips in NJ, 4 percent in DE, and 1 percent or less in most states, with statewide revenue losses identified for MA ($1,805), RI ($5,404), CT ($368), NY ($20,332), NJ ($441,702), DE ($89,544), MD ($41,331), VA ($19,418), and NC ($364). No state revenue losses were identified for ME or NH.

The average maximum gross revenue loss per party/charter vessel associated with the proposed black sea bass alternative was estimated to be $19 in MA, $193 in RI, $46 in CT, $442 in NY, $8,334 in NJ, $44,772 in DE, $13,777 in MD, $1,022 in VA, and $52 in NC.

For the non-preferred black sea bass measures considered in Alternative 2, impacted trips were defined as individual angler trips taken aboard party/charter vessels in 2002 that landed at least one black sea bass smaller than 11.5 inches (29.2 cm), or that landed more than 25 black sea bass. The analysis concluded that the measures would affect 3 percent of the party/charter trips in DE, 2 percent in NJ, and 1 percent or less in most states, with statewide revenue losses identified for RI ($1,960), CT ($368), NJ ($248,570), DE ($82,988), MD ($16,329), VA ($21,261), and NC ($119). No state revenue losses were identified for ME, NH, MA, or NY.

The average maximum gross revenue loss per party/charter vessel associated with this alternative was estimated to be $70 in RI, $46 in CT, $4,690 in NJ, $41,494 in DE, $5,443 in MD, $1,119 in VA, and $17 in NC.

For the non-preferred black sea bass measures considered in Alternative 3, impacted trips were defined as individual angler trips taken aboard party/charter vessels in 2002 that landed at least one black sea bass smaller than 12.5 inches (31.8 cm) or that landed more than 25 black sea bass. The analysis concluded that the measures would affect approximately 5 percent of the party/charter trips in DE, 3 percent in NJ, and 1 percent or less in most states, with statewide revenue losses identified for RI ($1,960), CT ($368), NY ($3,220), NJ ($483,095), DE ($125,132), MD ($40,395), VA ($29,602), and NC ($364). No state revenue losses were identified for ME, NH, or MA.

The average maximum gross revenue loss per party/charter vessel associated with this alternative was estimated to be $70 in RI, $46 in CT, $70 in NY, $9,115 in NJ, $62,566 in DE, $13,465 in MD, $1,558 in VA, and $52 in NC.

Combined Impacts of Summer Flounder, Scup, and Black Sea Bass Alternatives

Potential revenue losses in 2003 could differ for 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. In RI, for example, revenue losses could reach $993 for vessels that land all three species in 2003, compared to expected revenues for 2002. However, in MD, where the contribution of black sea bass to the total catch by party/charter vessels is nearly twice as high as it is for other states, a vessel that lands all three species could potentially lose up to a maximum of $39,417 in 2003. On average, the largest potential losses were projected for party/charter vessels operating out of MA, NJ, DE, and MD in 2003.

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) 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 small entity compliance guide (the guide) was prepared. Copies of the guide will be sent to all holders of Federal party/charter permits issued for the summer flounder, scup, and black sea bass fisheries. The guide will be available on the Internet at http://www.nero.noaa.gov. Copies of the guide can also be obtained from the Regional Administrator (see ADDRESSES).

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

Dated: July 22, 2003.

John Oliver,

Deputy Assistant Administrator for Operations, 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 § 648.105, 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 four 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. * * *

* * * * *

3. In § 648.107, the first sentence of the introductory text is 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 the states of Maine through North Carolina for 2003 are the conservation equivalent of the season, minimum size and possession limit prescribed in §§ 648.102, 648.103 and 648.105(a), respectively.* * *

* * * * *

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

§ 648.122

Time and area restrictions.

* * * * *

(g) Time restrictions. Vessels that are not eligible for a moratorium permit under § 648.4(a)(6), and fishermen subject to the possession limit, may not possess scup, except from January 1 through February 28 and from July 1 through November 30. This time period may be adjusted pursuant to the procedures in § 648.120.

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

§ 648.125

Possession limit.

(a) No person shall possess more than 50 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.* * *

* * * * *

6. Section 648.142 is revised to read as follows:

§ 648.142

Time restrictions.

Vessels that are not eligible for a moratorium permit under § 648.4(a)(7), and fishermen subject to the possession limit, may not possess black sea bass, except from January 1 through September 1 and September 16 through November 30. This time period may be adjusted pursuant to the procedures in § 648.140.

7. In § 648.143, paragraph (b) is revised to read as follows:

§ 648.143

Minimum sizes.

* * * * *

(b) The minimum size for black sea bass is 12 inches (30.5 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. The minimum size may be adjusted for recreational vessels pursuant to the procedures in § 648.140.

* * * * *