[Federal Register Volume 64, Number 174 (Thursday, September 9, 1999)]
[Rules and Regulations]
[Pages 48965-48967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23444]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 990422103-9209-02; I.D. 031099B]
RIN 0648-AL75
Fisheries of the Northeastern United States; Fishery Management
Plan for the Summer Flounder, Scup, and Black Sea Bass Fisheries;
Recreational Measures for the 1999 Fisheries
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: SUMMARY: NMFS issues this final rule to implement annual
Federal recreational measures for the 1999 summer flounder, scup, and
black sea bass fisheries. The purpose of these measures is to prevent
overfishing of the summer flounder, scup, and black sea bass resources.
In addition, NMFS issues interim measures to allow states to implement
a conservation equivalency provision. This provision allows states to
implement measures for the summer flounder recreational fishery that
are alternatives to the annual Federal measures, yet achieve a
reduction in fishing mortality equivalent to that achieved by the
annual Federal measures.
DATES: Effective September 9, 1999, except for Sec. 648.107 which is
effective October 12, 1999.
ADDRESSES: Copies of the Environmental Assessment (EA), Regulatory
Impact Review (RIR), and Final Regulatory Flexibility Analysis (FRFA),
are available from: Jon C. Rittgers, Acting Regional Administrator,
National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA
01930-2298.
FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst,
(978) 281-9273.
SUPPLEMENTARY INFORMATION:
Background
The Fishery Management Plan for the Summer Flounder, Scup, and
Black Sea Bass Fisheries (FMP) outlines the process for specifying
annual recreational measures. The FMP has established Monitoring
Committees (Committees) for each of the three fisheries comprised of
representatives from the Atlantic States Marine Fisheries Commission
(Commission), the Mid-Atlantic Fishery Management Council (Council),
the New England and South Atlantic Fishery Management Councils, and
NMFS. The Committees are required to review annually scientific and
other relevant information and to recommend measures necessary to
achieve the recreational harvest limits for the summer flounder, scup,
and black sea bass fisheries. These recommended measures are limited to
minimum fish sizes, possession limits, and closed seasons. The
Council's Demersal Species Committee and the Commission's Summer
Flounder, Scup, and Black Sea Bass Board (Board) then consider the
Monitoring Committees' recommendations and any public comment in making
their recommendations. The Council reviews the Demersal Committee
recommendations, makes its own decision, in turn, and submits its
recommendation to NMFS.
Final specifications for the 1999 summer flounder, scup, and black
sea bass fisheries were published on December 31, 1998 (63 FR 72203),
and included a recreational harvest limit of 7.41 million lb (3.361
million kg) for summer flounder; 1.24 million lb (0.562 million kg) for
scup; and 3.14 million lb (1.42 million kg) for black sea bass. A
proposed rule to implement annual Federal recreational measures for the
1999 summer flounder, scup, and black sea bass recreational fisheries
was published on April 30, 1999 (64 FR 23256), and contained various
combinations of one or more management measures, such as minimum fish
size, possession limit, and a closed season. The recreational measures
contained in this final rule are unchanged from those that were
published in the proposed rule, and are listed below. A complete
discussion of the recreational measures appears in the proposed rule
and is not repeated here.
1999 Recreational Measures
----------------------------------------------------------------------------------------------------------------
Minimum Size Possession
(length) Limit Closed Season
----------------------------------------------------------------------------------------------------------------
Summer Flounder 15 inches (38 cm) 8-fish September 12 of each year,
through May 28 of each
following year
Scup 7 inches (18 cm) None None
Black Sea Bass 10 inches (25 cm) None None
----------------------------------------------------------------------------------------------------------------
Interim Measure on Summer Flounder Conservation Equivalency
The proposed rule for the annual recreational measures included an
interim measure that would allow the states to implement recreational
measures as alternatives to the annual Federal summer flounder measures
that would result in the 40-percent reduction in the summer flounder
catch in 1999 compared to 1998. A 40-percent reduction is necessary
because the recreational harvest limit for 1999 is the same as it was
in 1998, and there was about a 40-percent overage of that harvest limit
in 1998. The states may select a combination of minimum fish sizes,
possession limits, and closed seasons. States that wish to implement
equivalent measures are required to submit proposed management options
to the Commission for approval. In anticipation of implementation of
the conservation equivalency provision, states have already selected
alternative measures designed to achieve the
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required 40-percent reduction in the recreational summer flounder
harvest. The Commission has reviewed the states' proposed alternative
measures and has found through the procedure described in
Sec. 648.107(b) that they will achieve the summer flounder harvest
reduction. Once the Commission approves a state equivalency proposal,
the Commission is required to recommend to NMFS that a notice be
published to waive the application of the annual Federal summer
flounder measures specified in this rule within a given state, and
notify the public of the state's equivalent measures. That
recommendation is now being prepared by the Commission, and NMFS will
publish a notice shortly after this final rule.
The conservation equivalency provision relies on annual Federal
summer flounder measures that are subject to public comment. The
conservation equivalency of alternative state measures will be
determined in comparison to the annual Federal summer flounder
measures. There is no change to the annual Federal summer flounder
measures identified in the proposed rule, so no further Commission
action is required. No comments were received during the comment period
on implementation of the conservation equivalency provision.
The issuance of interim measures is authorized by section 305(c) of
the Magnuson-Stevens Fishery Conservation and Management Act. The
conservation equivalency provision addresses concerns for some states
about the inappropriateness of annual Federal summer flounder measures
to achieve the 40-percent summer flounder harvest reduction. It
addresses overfishing by allowing states to implement conservation
equivalent measures for the recreational summer flounder fishery that
would result in the 40-percent reduction in catch required to achieve
the 1999 harvest limit while not exceeding it. NMFS reminded the
Council at its June 1999 meeting that the Council must include the
conservation equivalent provision in an FMP amendment or framework
action in order to establish it permanently.
Comments and Responses
One comment was received from the Council concerning the summer
flounder closed season.
Comment: Council staff stated their belief that the summer
flounder closed season proposed by NMFS differed from that adopted by
the Council and the Commission; specifically, Council staff stated that
the Council and Commission adopted a closed season only for the 1999
calendar year from January 1 through May 28, 1999, and September 12
through December 31, 1999.
Response: NMFS finds that the Council staff mistakenly thought the
Council intended to close the recreational summer flounder fishery for
only the 1999 calendar year. A review of the administrative record
concerning the actions discussed by the Council and Commission during
their joint December 1998 meeting shows the following language in the
final motion: ``a closure of September 12 through May 28.'' NMFS finds
the dates published in the proposed rule reflect the intent of the
Council/Commission. Further, if at a later date the Council and
Commission decide to recommend only a 1999 closed season, then they may
adjust the dates pursuant to the procedures in Sec. 648.100. Therefore,
the dates associated with the closed season for the summer flounder
recreational fishery will be from September 12 of each year, through
May 28 of each following year.
Changes in the Final Rule From the Proposed Rule
In Sec. 648.107, paragraph (b) is revised to improve clarity and by
inserting the words ``or greater'' in the second sentence to clarify
when conservation equivalent measures may be implemented without Summer
Flounder Technical Committee review.
Classification
This final rule is required by 50 CFR part 648.
A review of the administrative record indicates the Council
intended that the recreational fishery for summer flounder be closed
September 12 through May 28. Continued harvest of summer flounder in
the recreational fishery during a 30-day delay in the effective date
would reduce the likelihood of attaining the objective of this rule
(i.e., a 40-percent reduction in landings in 1999 compared to 1998).
Meeting this objective is necessary to comply with the FMP's maximum
fishing mortality rate for 1999, and to meet the rebuilding schedule.
For these reasons, under 5 U.S.C. 553(d)(3), the AA finds for good
cause that a 30-day delay in the effective date of this rule would be
contrary to the public interest. Fishermen will be notified of the
September 12 recreational fishery closure via NOAA weather radio, Coast
Guard announcements, and other available means of notification.
Because prior notice and an opportunity for public comment are not
required for the interim measure (i.e., the conservation equivalency
provision) by 5 U.S.C. 553, or any other law, the analytical
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
are inapplicable.
NMFS has completed a FRFA for the other provision of this rule
(i.e., the September 12 through May 28 closed season for summer
flounder), pursuant to 5 U.S.C. 604 of the Regulatory Flexibility Act.
The FRFA describes the impact this final rule will have on small
entities. A copy of the FRFA can be obtained from the Northeast
Regional Office of NMFS (see ADDRESSES). A summary of the FRFA follows.
The FRFA discusses (1) the need for, and objectives, of the rule;
(2) public comments on the IRFA; (3) the number of small entities to
which the rule will apply; (4) reporting and recordkeeping
requirements; (5) reasons for selecting the alternatives adopted in the
final rule and rejecting the alternatives; and (6) the measures that
minimize the economic impact of this action.
The need for, and objectives of, the final measures in the rule are
to prevent overfishing of the summer flounder, scup, and black sea bass
resources.
There were no public comments on the IRFA.
Data from the Northeast Region's permit application database
indicate that 710 vessels were permitted in 1997 to take part in the
summer flounder, scup, and/or black sea bass fisheries in the EEZ.
Analysis of NMFS Vessel Trip Report data indicates that 348 party/
charter vessels participated in the summer flounder, scup, or black sea
bass fisheries in 1997. The final recreational measures apply to these
entities.
This rule does not propose new reporting or recordkeeping measures.
There are no changes to existing reporting or recordkeeping
requirements.
Current summer flounder recreational measures are a 15-inch (38-cm)
minimum fish size and an 8-fish possession limit. This rule does not
change the current 15-inch (38-cm) minimum size and 8-fish possession
limit, but implements a closed season from September 12 through May 28.
As such, the difference between the summer flounder recreational
measures and the status quo is the implementation of a closed season
starting September 12, 1999. The three annual Federal measures are
intended to reduce landings in 1999 by over 40 percent compared to
1998. States are required to implement the annual Federal recreational
management measures or other measures that will achieve a 40-percent
reduction in landings. This would allow states to
[[Page 48967]]
deal with burden issues associated with the implementation of any
component (e.g., seasonal closures) of this measure.
For summer flounder, two alternatives other than the selected
alternative were considered. These alternatives were: a) a 15-inch (38-
cm) minimum fish size, a 6-fish possession limit, and a closed season
from August 1 to August 31; and b) a 15-inch (38-cm) minimum fish size,
a 4-fish possession limit, and a closed season from January to June of
each year. These alternatives could potentially reduce landings by 45
percent. These restrictive limits (i.e., lower possession limits,
greater minimum size limits, and/or shorter seasons) would prevent
anglers from exceeding the recreational harvest limit in 1999. However,
given the popularity of summer flounder among anglers as the most
frequently sought after species in the Mid-Atlantic in 1997, the more
limiting time frame proposed in the non-selected alternatives may
affect angler satisfaction and/or demand for party/charter trips;
therefore, they were rejected.
This rule maintains the status quo for scup for 1999. Therefore,
the current recreational management measure remains in effect (7-inch
(18-cm) minimum size, no possession limit, and no closed season). The
minimum size currently in effect could potentially reduce recreational
landings by less than two percent.
For scup, two alternatives other than the selected alternative were
considered. These alternatives were: a) an 8-inch (20-cm) minimum fish
size, a 25-fish possession limit, and no closed season; and b) an 8-
inch (20-cm) minimum fish size, a 35-fish possession limit, and no
closed season. Both of these alternatives could potentially decrease
landings by 5 percent over the selected alternative. Those alternatives
were rejected based on concerns that cancellation of party/charter
trips would result and cause adverse economic impacts.
For black sea bass, this rule maintains the current management
measures (10-inch (25-cm) minimum size, no possession limit, and no
closed season for 1999). This no-change alternative was selected to
potentially reduce recreational landings by approximately 14 percent.
Two alternatives other than the selected alternative were considered.
These alternatives were: a) a 10-inch (25-cm) minimum fish size, no
possession limit, and a closed season from August 1 to August 15; and
b) a 10-inch (25-cm) minimum fish size, a 20-fish possession limit, and
no closed season. These alternatives could decrease landings by 15
percent and 18 percent, respectively. These alternatives could result
in a greater reduction in landings of approximately 1 percent and 4
percent, respectively, than the selected alternative. Those
alternatives were rejected because of concerns that the additional
catch restrictions would result in cancellation of party/charter trips,
and cause adverse economic impacts.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: September 2, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, 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. Section 648.102 is revised to read as follows:
Sec. 648.102 Time restrictions.
Vessels that are not eligible for a moratorium permit under
Sec. 648.4(a)(3) and any person subject to the possession limit may
fish for summer flounder only from May 29 through September 11. This
time period may be adjusted pursuant to the procedures in Sec. 648.100.
3. Section 648.107 is added to subpart G to read as follows:
Sec. 648.107 Conservation equivalent measures for the recreational
summer flounder fishery.
(a) Through March 9, 2000, states may implement on an annual basis
conservation equivalent measures that reduce the recreational catch to
the same extent as the annual Federal summer flounder measures
specified under Sec. 648.100(c) to achieve the recreational harvest
limit in any year. These measures would be a different combination of
minimum fish sizes, possession limits, and closed seasons that are the
conservation equivalent of those Federal summer flounder measures
specified on an annual basis.
(b) A determination of equivalency would be made annually for any
state proposing alternative recreational measures by the Summer
Flounder Technical Committee of the Commission. Conservation equivalent
measures may be implemented by any state without a determination of
equivalency by the Summer Flounder Technical Committee review, but only
if states use the state-specific tables provided by the Commission and
maintain a 15-inch (38-cm) or greater minimum fish size.
(1) Once a state receives a determination of equivalency from the
Summer Flounder Technical Committee or a state implements conservation
equivalent measures contained in the state-specific table provided by
the Commission, the Commission will recommend to the Regional
Administrator that a notification be published in the Federal Register
to waive the annual Federal summer flounder measures specified under
Sec. 648.100(c) and to notify vessel permit holders of the equivalent
measures approved by the Summer Flounder Technical Committee for
landing summer flounder in that state.
(2) States electing not to implement conservation equivalent
measures or states that did not receive a determination of equivalency
from the Summer Flounder Technical Committee and not implementing
conservation equivalent measures contained in the state-specific table
provided by the Commission would be required to implement the annual
Federal summer flounder measures specified under Sec. 648.100(c) in
accordance with the provisions of the Fishery Management Plan for the
Summer Flounder, Scup, and Black Sea Bass Fisheries.
[FR Doc. 99-23444 Filed 9-3-99; 3:44 pm]
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