Fishery conservation and management: Summer flounder, scup, and black sea bass,

[Federal Register: July 30, 2001 (Volume 66, Number 146)]

[Rules and Regulations]

[Page 39288-39292]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr30jy01-9]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 010511122-1179-02; I.D. 031901C]

RIN 0648-AN70

Fisheries of the Northeastern United States; Fishery Management Plan for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Recreational Measures for the 2001 Fisheries

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

ACTION: Final rule; technical correction.

SUMMARY: NMFS issues this final rule to implement recreational measures for the 2001 summer flounder, scup, and black sea bass fisheries. The implementing regulations for these fisheries require NMFS to publish recreational measures for the upcoming 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: Effective July 30, 2001.

ADDRESSES: Copies of supporting documents used by the Summer Flounder, Scup, and Black Sea Bass Monitoring Committees, the Regulatory Impact Review (RIR), the Final Regulatory Flexibility Analysis (FRFA) contained within the RIR, and the Environmental Assessment (EA) are available from the Northeast Regional Office at the following address: National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-2298. The EA/RIR/FRFA is also accessible via the Internet at http://www.nero.nmfs.gov/ro/doc/nr.htm.

FOR FURTHER INFORMATION CONTACT: Rick Pearson, Fishery Policy Analyst, (978) 281-9279, fax (978) 281-9135, e-mail rick.a.pearson@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

The Fishery Management Plan for the Summer Flounder, Scup, and Black Sea Bass Fisheries (FMP) and its implementing regulations (50 CFR part 648, subparts G, H, and I) describe the process for specifying annual recreational measures. Final specifications for the 2001 scup and black sea bass fisheries were published at 66 FR 12902, March 1, 2001, and final

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specifications for the 2001 summer flounder fishery were published at 66 FR 16151, March 23, 2001. These specifications included a coastwide recreational harvest limit of 7.16 million lb (3.25 million kg) for summer flounder, 1.77 million lb (0.803 million kg) for scup, and 3.148 million lb (1.43 million kg) for black sea bass. A proposed rule to implement annual Federal recreational measures for the 2001 summer flounder, scup, and black sea bass fisheries was published at 66 FR 28879, May 25, 2001, and contained management measures (i.e., minimum fish size, possession limit, and season) intended to keep annual recreational harvest from exceeding the specified harvest limits. The recreational measures contained in this final rule are unchanged from those published in the proposed rule, and are listed below. A complete discussion of the development of the recreational measures appeared in the preamble of the proposed rule and is not repeated here.

Recreational Measures

Minimum Size (total length)

Possession Limit Open Season

Summer Flounder

15.5 inches (39.27 cm)

3 fish May 25 - Sep. 4 Scup

9 inches (22.86 cm)

50 fish Aug. 15 - Oct. 31 Black Sea Bass

11 inches (27.94 cm)

25 fish Jan.1 - Feb. 28 and May 10 - Dec. 31

Comments and Responses

Four comments were received on the proposed recreational measures for summer flounder, scup, and black sea bass. Three were from fishing industry participants, and one was from a Congressional representative. All comments received prior to the close of the comment period that were relevant to the measures in the proposed rule were considered in development of this final rule.

Classification

Comment 1: One commenter concerned with the economic impact of a May and June recreational scup closure on charter vessels operating out of Cape Cod, stated that the closed season would be devastating to this industry, since charter vessel operators have established a large clientele that comes to Cape Cod to catch the scup that traditionally appear off the Cape every spring. The commenter also stated that August is their season for striped bass, bluefish, summer flounder and tuna fishing. Therefore, an August opening to the scup season would not be especially beneficial to their fishing community.

Response: The recreational measures being implemented in this final rule are established to ensure that the coastwide harvest limit, established in the 2001 specifications for summer flounder, scup, and black sea bass, is not exceeded. Although the economic impact of these measures may vary among the states based on the seasonal availability of scup, these measures cannot be tailored to meet the economic needs of each individual state. The economic impact of the scup season was evaluated as part of the IRFA/FRFA in relation to the entire coast. The effect of the scup measures on angler effort (1.44-percent reduction) is not substantially greater than the effect projected under the other alternative that satisfied the FMP objective (1.40 percent reduction), which had an open season of July 1 through September 29, but a possession limit of only 15 fish. The measures being implemented through this final rule were selected because they included a season that met the coastwide requirements, and are consistent with the goals and objectives of the FMP. In addition, these measures maintained a higher possession limit, which industry members testified was critical to charter vessel operations.

Comment 2: Two commenters concerned with the black sea bass season and possession limit, stated that a 25-fish possession limit is not sufficient for charter vessels that make full-day trips. They stated that they often sail on full-day trips (8 hr) or on extended-hours trips (14 to 18 hr), with the expectation of catching more than 25 sea bass per passenger. These commenters also stated that this possession limit and the proposed closed season would provide little benefit to the black sea bass stocks. They felt that an increase in the minimum size to 11 inches would have more benefit to the stock.

Response: The measures being implemented in this final rule were selected because they met the coastwide requirements, and are consistent with the goals and objectives of the FMP. Furthermore, the negative economic impacts associated with these measures are minimal. These measures are estimated to impact only 0.09 percent of angler trips, with an estimated maximum gross annual revenue loss of only $219 per party/charter vessel. The negative economic impacts associated with the preferred black sea bass alternative are minimal. These measures are estimated to impact only 0.09 percent of angler trips, with an estimated maximum gross annual revenue loss of only $219 per party/ charter vessel.

Comment 3: One commenter opposed the black sea bass closed season (March 1 through May 9), suggesting instead a closure during August or September when alternative species are available to be caught by charter vessel operations.

Response: As stated in the response to Comment 2 above, the negative economic impacts associated with the preferred alternative are minimal. The analysis of the black sea bass measures in the EA/RIR shows that the season only contributes 4 percent to the total 26- percent reduction in recreational landings associated with these measures. To delay the closure to late August would result in less than a 3-percent reduction in recreational black sea bass landings, therefore not achieving the reduction necessary. While an early September closure would result in approximately an 11-percent reduction in landings, it would likely result in a greater economic loss. Therefore, the season established under the preferred alternative achieves the necessary reduction in recreational landings while keeping economic impacts to a minimum.

Changes from the Proposed Rule; Technical Correction

Changes to Secs. 648.102, 648.103, and 648.105 were made to incorporate regulatory language added as a result of the publication of the final rule implementing Framework 2 to the Summer Flounder, Scup, and Black Sea Bass FMP.

This final rule makes a technical correction to 50 CFR 648.120 (a), which specifies the annual exploitation targets for scup. In Amendment 8 to the FMP, the exploitation target specified for 2002 and thereafter was Fmax. The value of Fmaxestimated in Amendment 8 corresponded to an exploitation rate of

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19 percent, and thus Sec. 648.120(a) included that value. However, the Fmaxestimate has changed. Therefore, the 19-percent figure currently contained in the regulatory text is incorrect. The regulatory text is corrected to reflect the fact that the target exploitation rate is associated with Fmax, rather than a fixed percentage. This correction will allow annual measures to be set consistent with the most recent estimate of Fmax. There are no other changes made to the proposed rule.

Classification

This final rule has been determined to be not significant for purposes of Executive Order 12866.

This action establishes annual recreational management measures for the summer flounder, scup, and black sea bass fisheries. Action to restrict recreational landings must be taken immediately to conserve and manage these fishery resources; the fisheries are in progress. Failure to implement these provisions immediately could result in overfishing and prevent NMFS from carrying out its mandate to prevent overfishing of the resource. Therefore, because it would be impracticable and contrary to the public interest to delay implementation of these provisions, the Assistant Administrator for Fisheries, NOAA, for good cause under 5 U.S.C. 553 (d)(3) waives the 30-day delay in effectiveness of the 2001 summer flounder, scup, and black sea bass recreational measures.

NMFS determined that this final rule will be implemented in a manner that is consistent, to the maximum extent practicable, with the approved coastal management programs of Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, and North Carolina. This determination was submitted for review by the responsible state agencies on January 17, 2001, under section 307 of the Coastal Zone Management Act. The following states concurred with NMFS' determination: Rhode Island, Pennsylvania, New Jersey, Delaware, Virginia and North Carolina. The State of Connecticut agreed with the consistency determination regarding the black sea bass specifications, but disagreed with the determination regarding the summer flounder and scup specifications. The State of Connecticut objected to NMFS' determination for these two fisheries because the State believed NMFS set harvest levels that were unjustifiably low, and therefore detrimental to Connecticut fishermen. However, recreational harvest limits are not being established by this action; those measures were established as part of the 2001 summer flounder, scup, and black sea bass specifications, which were the subject of a separate rulemaking. NMFS responded to the concerns of the State of Connecticut by means of a letter sent on March 23, 2001. The remaining states (Maine, New Hampshire, Massachusetts, New York, and Maryland) did not respond; therefore, consistency is inferred.

The Council and NMFS prepared a final regulatory flexibility analysis (FRFA) for this action. A copy of this analysis is available from the Regional Administrator (see ADDRESSES). The preamble to the proposed rule contained a detailed summary of the analyses contained in the initial regulatory flexibility analysis (IRFA), and that discussion is not repeated in its entirety here. A summary of the FRFA follows.

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. This action does not contain any collection-of-information, reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules.

Public Comments

Four comments were received on the recreational measures contained in the proposed rule. Comments were not specifically on the IRFA, but were related to the economic impacts on small entities (see response to comments 1, 2, and 3 in the preamble of this final rule).

Number of Small Entities

The measures established by this action potentially affect a total of 694 party/charter vessels that held Federal party/charter permits for the summer flounder, scup, and/or black sea bass fisheries in 1999.

Minimizing Significant Economic Impact on Small Entities

The FRFA contains an analysis of the measures being implemented in comparison to other alternatives that were considered. The measures being implemented in this final rule consist of the measures recommended by the Council for these fisheries. The other alternative that satisfied the FMP objective (other alternative) consisted of measures recommended by the Monitoring Committees for summer flounder and scup, and of a restrictive set of alternative black sea bass measures. The final alternative maintained existing measures for all three fisheries (status quo alternative).

The category of small entities likely to be affected by this action are party/charter vessels harvesting summer flounder, scup, and/or black sea bass. This action could affect any party/charter vessel holding a Federal permit for summer flounder, scup, and/or black sea bass, regardless of whether it is fishing in Federal or in state waters. The measures implemented through this final rule could affect 694 vessels with a Federal charter/party permit for summer flounder, scup and/or black sea bass, but only 364 of these actively participated in the recreational summer flounder, scup, and/or black sea bass fisheries in 1999.

The Council's analysis assessed various management measures and their impacts on revenues of party/charter vessels. Projected Marine Recreational Fisheries Statistics Survey (MRFSS) data indicate that 1.626 million trips were taken by anglers aboard party/charter vessels in 2000 in the Northeast Region. The final 2001 summer flounder recreational measures are expected to affect about 2.64 percent of party/charter trips. Total potential revenue loss could be up to $1,677,586 (42,916 x $39.09), with an average potential revenue loss of up to $5,275 per vessel.

Under the other summer flounder alternative (16-inch (40.64-cm) TL minimum fish size, three-fish possession limit, and an open season), about 2.72 percent of trips aboard party/charter vessels would be affected, assuming angler effort and catch rates in 2001 are similar to 2000. Under this alternative, the average potential revenue loss per vessel would have been up to $5,435. This alternative was not selected because it has a greater negative economic impact than the selected alternative, and therefore does not minimize the economic impacts on small entities.

Losses of these magnitudes are unlikely to occur, however, given that anglers will continue to have the ability to engage in catch-and- release fishing for summer flounder and that other target species are available. Little information is available to estimate how sensitive the affected party/charter boat anglers might be to the proposed regulations. In addition, only 7.3 percent of recreational summer flounder landings come from the Exclusive Economic Zone (EEZ). Federal measures apply to federally permitted vessels wherever they fish. The states, through the Atlantic States Marine Fisheries Commission (Commission), have implemented different measures for summer flounder because the

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Commission has adopted a reduction strategy (34-percent reduction in landings) different than that adopted by the Council (54-percent reduction in landings). Therefore, the demand for recreational party/ charter trips targeting summer flounder should not be significantly affected by these final measures, or the measures under the rejected alternative, and the economic impacts per vessel should be considerably less than estimated above.

The status quo summer flounder alternative would have maintained a 15.5-inch (39.37-cm) TL minimum fish size, an eight-fish possession limit, and an open season from May 10 to October 2. Although NMFS did not publish a final rule implementing these measures in the EEZ, most of the coastal states from Maine to North Carolina adopted these measures in 2000. Assuming that angler effort in 2001 is similar to that in 2000 and that catch rates remain constant, the status quo alternative would not affect any additional recreational fishing trips for summer flounder in 2001. This alternative was not selected because it does not achieve the recreational harvest limit that was consistent with the total allowable landings (TAL) established to comply with a Court Order.

For scup, the final 2001 recreational measures will affect approximately 1.44 percent of the total angler trips taken aboard party/charter vessels in 2001, assuming catch rates and angler effort in 2001 are similar to those in 2000. Party/charter vessels could lose total revenues up to $915,058 as a result of these final measures, with an average potential revenue loss per vessel of up to $7,262.

Measures proposed under the other scup alternative (a nine-inch (22.86-cm) TL minimum fish size, a 15-fish possession limit, and an open season from July 1 through September 29) would affect approximately 1.4 percent of the total angler trips taken aboard party/ charter boats in 2001. Under this alternative, the average potential revenue loss per vessel could be up to $7,104. This alternative was not selected because it did not maintain a higher possession limit, which industry testified was critical to charter vessel operations.

Losses of these magnitudes are unlikely to occur, however, for the same reasons noted above for summer flounder. Furthermore, the states, through the Commission, have implemented alternative measures for scup. The Commission has required the states to reduce scup landings by only 33 percent. While a larger portion of the recreational scup fishery occurs in the EEZ than in the case of summer flounder, only about 13.4 percent of recreational scup landings come from the EEZ. Therefore, the demand for recreational party/charter trips targeting scup should not be significantly affected by these final measures, or the measures under the rejected alternative. Furthermore, the economic impacts per vessel should be considerably less than estimated above.

The status quo alternative for scup would have maintained a 50-fish possession limit, a 7-inch (17.78-cm) TL minimum fish size, and no closed season. Although NMFS did not publish a final rule implementing these measures in the EEZ, most of the coastal states from Maine to North Carolina adopted these measures in 2000. Assuming that angler effort in 2001 is similar to that in 2000 and that catch rates remain constant, the status quo alternative would not affect any additional recreational fishing trips for scup in 2001. This alternative was not selected because it does not meet the goals and objectives of the FMP.

For black sea bass, about 0.09 percent of the trips aboard party/ charter vessels in 2000 (1.626 million trips) will be affected by the final 2001 recreational measures, assuming catch rates and angler effort in 2001 are similar to those in 2000. These final measures could reduce total party/charter vessel revenues by up to $57,189, with an average potential revenue loss per vessel of up to $219.

Under the other black sea bass alternative (a 10-inch (25.40-cm) TL, a 15-fish possession limit, and an open season from June 1 through November 25) about 0.83 percent of the trips aboard party/charter vessels would have been affected. Under this alternative, the average potential revenue loss per vessel could be up to $2,021. However, losses of these magnitudes are unlikely to occur for the same reasons noted earlier for summer flounder and scup. This alternative was not selected because it has a greater negative economic impact than the selected alternative, and therefore does not minimize the economic impacts on small entities.

The status quo alternative for black sea bass would have maintained a 10-inch (25.4-cm) TL minimum fish, size with no size or possession limits. Although NMFS did not publish a final rule implementing these measures in the EEZ, most coastal states from Maine to North Carolina adopted these measures in 2000. Assuming angler effort in 2001 is similar to that in 2000 and catch rates remain constant, the status quo alternative would not affect any additional recreational fishing trips for black sea bass in 2001. This alternative was not selected because it did not meet the goals and objectives of the FMP.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: July 24, 2001. William T. Hogarth, Acting 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. In Sec. 648.14, paragraphs (a)(80) and (u)(2) are revised to read as follows:

   Sec. 648.14 Prohibitions.

   (a) * * *

   (80) Possess scup in or harvested from the EEZ north of 35 deg.15.3' N. lat. in an area closed, or before or after a season established pursuant to Sec. 648.122, or in excess of the possession limit established pursuant to Sec. 648.125. * * * * *

   (u) * * *

   (2) Possess black sea bass in other than a box specified in Sec. 648.145(d) if fishing with nets having mesh that does not meet the minimum mesh-size requirement specified in Sec. 648.144 (a). * * * * *

3. Section 648.102 is revised to read as follows:

   Sec. 648.102 Time restrictions.

   Unless otherwise specified in 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 25 through September 4. This time period may be adjusted pursuant to the procedures in Sec. 648.100.

4. In Sec. 648.103, paragraph (b) is revised to read as follows:

   Sec. 648.103 Minimum fish sizes.

   * * * * *

   (b) Unless otherwise specified in Sec. 648.107, the minimum size for summer flounder is 15.5 inches (39.37 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

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   passengers for hire or carrying more than five crew members. * * * * *

5. In Sec. 648.105, paragraph (a) is revised to read as follows:

   Sec. 648.105 Possession restrictions.

   (a) Unless otherwise specified in Sec. 648.107, no person shall possess more than three 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. Persons aboard a commercial vessel that is not eligible for a summer flounder moratorium permit are subject to this possession limit. The owner, operator, and crew of a charter or party boat issued a summer flounder moratorium permit are subject to the possession limit when carrying passengers for hire or when carrying more than five crew members for a party boat, or more than three crew members for a charter boat. This possession limit may be adjusted pursuant to the procedures in Sec. 648.100. * * * * *

6. In Sec. 648.120, paragraph (a) is revised to read as follows:

   Sec. 648.120 Catch quotas and other restrictions.

   (a) Annual review. The Scup Monitoring Committee shall review the following data, subject to availability, on or before August 15 of each year: Commercial and recreational catch data; current estimates of fishing mortality; stock status; recent estimates of recruitment; virtual population analysis results; levels of noncompliance by fishermen or individual states; impact of size/mesh regulations; impact of gear on the mortality of scup; and any other relevant information. This review will be conducted to determine the allowable levels of fishing and other restrictions necessary to achieve the F that produces the maximum yield per recruit (Fmax). * * * * *

7. In Sec. 648.122, the section heading is revised and paragraph (g) is added to read as follows:

   Sec. 648.122 Time 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 may fish for scup from August 15 through October 31. This time period may be adjusted pursuant to the procedures in Sec. 648.120.

8. In Sec. 648.124, paragraph (b) is revised to read as follows:

   Sec. 648.124 Minimum fish sizes.

   * * * * *

   (b) The minimum size for scup is 9 inches (22.9 cm) TL for all vessels that do not have a moratorium permit, or for party and charter vessels that are issued a moratorium permit but are fishing with passengers for hire, or carrying more than three crew members if a charter boat, or more than five crew members if a party boat. * * * * *

9. In Sec. 648.125, paragraph (a) is revised to read as follows:

   Sec. 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. Persons aboard a commercial vessel that is not eligible for a scup moratorium permit are subject to this possession limit. The owner, operator, and crew of a charter or party boat issued a scup moratorium permit are subject to the possession limit when carrying passengers for hire or when carrying more than five crew members for a party boat, or more than three crew members for a charter boat. This possession limit may be adjusted pursuant to the procedures in Sec. 648.120. * * * * *

10. 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 may not fish for black sea bass from March 1 through May 9. This time period may be adjusted pursuant to the procedures in Sec. 648.140.

11. In Sec. 648.143, the first sentence of paragraph (b) is revised to read as follows:

    Sec. 648.143 Minimum sizes.

    * * * * *

    (b) The minimum size for black sea bass is 11 inches (27.94 cm) TL for all vessels that do not qualify for a moratorium permit, and party boats holding a moratorium permit if fishing with passengers for hire or carrying more than five crew members, or charter boats holding a moratorium permit if fishing with more than three crew members. * * * * * * * *

12. In Sec. 648.145, the introductory paragraph is removed; existing paragraphs (a), (b) and (c) are redesignated as paragraphs (b),(c), and (d), respectively; and a new paragraph (a) is added to read as follows:

    Sec. 648.145 Possession limit.

    (a) No person shall possess more than 25 black sea bass in, or harvested from the EEZ unless that person is the owner or operator of a fishing vessel issued a black sea bass moratorium permit, or is issued a black sea bass dealer permit. Persons aboard a commercial vessel that is not eligible for a black sea bass moratorium permit are subject to this possession limit. The owner, operator, and crew of a charter or party boat issued a black sea bass moratorium permit are subject to the possession limit when carrying passengers for hire or when carrying more than five crew members for a party boat, or more than three crew members for a charter boat. This possession limit may be adjusted pursuant to the procedures in Sec. 648.140. * * * * *

    [FR Doc. 01-18919Filed7-27-01; 8:45 am]

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