14760 Federal Register / Vol. 74, No. 61 / Wednesday, April 1, 2009 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 090211163–9167–01] 

RIN 0648–AX69 

Fisheries of the Northeastern United 

States; Recreational Management 

Measures for the Summer Flounder, 

Scup, and Black Sea Bass Fisheries; 

Fishing Year 2009 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes management 

measures for the 2009 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 1, 2009. 

ADDRESSES: You may submit comments, 

identified by RIN 0648–AX69, by any 

one of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• 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 2009 Summer Flounder, 

Scup, and Black Sea Bass Recreational 

Measures.’’ 

• Fax: (978) 281–9135. Send the fax 

to the attention of the Sustainable 

Fisheries Division. Include ‘‘Comments 

on 2009 Summer Flounder, Scup, and 

Black Sea Bass Recreational Measures’’ 

prominently on the fax. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

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. Attachments to electronic 

comments will be accepted 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, Room 

2115, Federal Building, 300 South New 

Street, Dover, DE 19901–6790. These 

documents are also accessible via the 

Internet at http://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°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 the exclusive 

economic zone (EEZ), as well as vessels 

possessing a Federal fisheries permit, 

regardless of where they fish. 

The FMP established Monitoring 

Committees (Committees) for the three 

fisheries, consisting of representatives 

from the Commission, the Mid-Atlantic 

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. 

Quota specifications for the 2009 

summer flounder, scup, and black sea 

bass fisheries were published on 

January 2, 2009 (74 FR 29). Based on 

these specifications, the 2009 coastwide 

recreational harvest limits are 7,158,600 

lb (3,247 mt) for summer flounder, 

2,585,952 lb (1,173 mt) for scup, and 

1,137,810 lb (516 mt) for black sea bass. 

The specification rules did not establish 

recreational measures, since final 

recreational catch data for 2008 were 

not 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. 

Summer Flounder 

Recreational landings for 2008 were 

estimated to have been 8.14 million lb 

(3,692 mt). This exceeded, by 

approximately 31 percent, the 2008 

recreational harvest limit of 6.22 million 

lb (2,821 mt). All states except DE, VA, 

and NC are projected to have exceeded 

their state harvest limits established 

Federal Register / Vol. 74, No. 61 / Wednesday, April 1, 2009 / Proposed Rules 14761 

under the conservation equivalency 

system utilized to manage the 2008 

recreational summer flounder fishery. 

The magnitude of the overages ranged 

from a low of 9 percent for NJ to a high 

of 105 percent for MD. 

The 2009 coastwide harvest limit is 

7.16 million lb (3,247 mt), a 15.1– 

percent increase from the 2008 harvest 

limit of 6.22 million lb (2,821 mt). 

However, given the magnitude of the 

2008 overages, landings must be 

reduced by 12 percent coastwide from 

the 2008 levels to ensure that the 2009 

harvest limit is not exceeded. The 

Council is recommending conservation 

equivalency, described as follows, that 

would require individual states to 

reduce summer flounder landings 

(measured in number of fish) to achieve 

the necessary recreational harvest 

reductions for 2009. 

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, 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 

annually that either 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. 

If conservation equivalency is 

recommended, and following 

confirmation that the proposed state 

measures would achieve conservation 

equivalency, NMFS may waive the 

permit condition found at § 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. 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 are determined not to achieve the 

required level of reduction for that state. 

The precautionary default measures are 

defined as the set of measures that 

would achieve at least the highest 

percent reduction for any state on a 

coastwide basis. 

In December 2008, the Council and 

Board voted to recommend conservation 

equivalency to achieve the 2009 

recreational harvest limit. The 

Commission’s conservation equivalency 

guidelines require the states to 

determine and implement appropriate 

state-specific management measures 

(i.e., possession limits, fish size limits, 

and fishing seasons) to achieve statespecific harvest limits. States may also 

form voluntary regions wherein the 

member states’ measures must achieve 

the overall reduction required for the 

region in question. 

For 2009, the Commission is requiring 

that states that must reduce landings to 

ensure that at least 50 percent of the 

percent reduction derive from a 

modification to the fishing season. The 

Monitoring Committee and the 

Technical Committee have both stated 

that modification of season length is 

typically more effective at reducing 

landings than are modifications to 

minimum fish size and possession 

limits. The Commission is not requiring 

the use of any other adjustments or 

reductions similar to the performancebased adjustment factor that was 

utilized in 2008. 

According to the conservation 

equivalency procedures established in 

Framework Adjustment 2, each state 

except DE, VA, and NC would be 

required to reduce 2009 landings by the 

percentages shown in Table 1. DE, VA, 

and NC may submit more liberal 

management measures, provided that 

they are sufficient to ensure their 2009 

state harvest limits are not exceeded. 

ME and NH have no recreational 

summer flounder harvest limit and are 

not required to submit management 

measures to the Commission. 

Under conservation equivalency, 

state-specific landings from 1998 are 

used as the baseline for individual 

state’s reductions, because 1998 was the 

last year that recreational summer 

regulations were consistent along the 

coast. Recreational landings in 1998 

were 6.978 million fish coastwide; the 

2009 recreational harvest limit 

translates into 2.069 million fish (i.e., 

7.16 million lb (3,247 mt) recreational 

harvest limit divided by predicted 2009 

average fish weight of 3.46 lb/fish (1.57 

kg/fish)). As such, landings must be 

reduced by 70.4 percent in 2009 to 

achieve the 1998 baseline level of 

landings. 

TABLE 1. 2009 CONSERVATION

EQUIVALENCY STATE-SPECIFIC HARVEST TARGETS (THOUSANDS OF

FISH): 1998 BASELINE; 2009 TARGET, 2008 PROJECTED LANDINGS, 

AND PERCENT REDUCTIONS. 

State 

1998 

Baseline 

Target (X 

’000 

fish) 

2009 

Target 

(X 

’000 

fish)A

2008 

Projected 

Landings(X 

’000 

fish) 

Required 

Percent 

Reduction 

for 

2009 

MA 383 114 150 24 

RI 395 117 200 42 

CT 261 77 118 35 

NY 1,230 365 600 39 

NJ 2,728 809 870 7 

DE 219 65 33 0 

MD 206 61 125 51 

VA 1,165 345 231 0 

NC 391 116 54 0 

A Based on a 70.4–percent reduction in 

1998 landings and an estimated 2009 mean 

fish weight of 3.46 lb (1.57 kg) 

The Board required that each state 

submit its conservation equivalency 

proposals to the Commission by late 

January 2009. The Technical Committee 

then evaluated the proposals and 

advised the Board of each proposal’s 

consistency with respect to achieving 

the coastwide recreational harvest limit. 

The Commission invited public 

participation in its review process by 

allowing public comment on the state 

proposals at the Technical Committee 

meeting held on January 28, 2009. The 

Board met on February 3, 2009, and 

approved a range of management 

proposals for each state designed to 

attain conservation equivalency. Once 

the states select and submit their final 

summer flounder management measures 

to the Commission, the Commission 

will notify NMFS as to which 

individual state proposals have been 

approved or disapproved. NMFS retains 

the final authority either to approve or 

to disapprove using conservation 

equivalency in place of the coastwide 

measures and will publish its 

14762 Federal Register / Vol. 74, No. 61 / Wednesday, April 1, 2009 / Proposed Rules 

determination as a final rule in the 

Federal Register to establish the 2009 

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 § 648.4(b). The suite of state 

proposals for 2009 has initially been 

approved by the Commission. 

Therefore, a state would only be 

required to implement precautionary 

default measures if the measures 

submitted for final Commission 

approval are different than those 

preliminarily approved by the 

Commission or for failing to finalize 

conservation equivalent measures for 

2009. 

The precautionary default measures 

recommended by the Council and Board 

during their joint December 2008 

meeting are for a 21.5–inch (54.61–cm) 

minimum fish size, a possession limit of 

one fish, and an open season of July 4 

through September 7, 2009. 

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 2009 are a 20–inch (50.80–cm) 

minimum fish size, a possession limit of 

two fish, and an open season from May 

1 to September 30, 2009. 

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 disapproved 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 2009 scup recreational harvest 

limit is 2,585,952 lb (1,173 mt), a 41– 

percent increase from the 2008 

recreational harvest limit of 1.83 million 

lb (830 mt). Recreational landings are 

estimated to have been 4.75 million lb 

(2,155 mt). 

Development of scup recreational 

management measures has been 

substantially complicated for 2009 

following the results of a Northeast 

Fisheries Science Center (Center) Data 

Poor Stocks Working Group (DPSWG). 

The peer-reviewed results of the 

DPSWG has resulted in the adoption of 

revised scup biological reference points, 

a new stock assessment modeling 

approach, and a more favorable overall 

status of the stock than was previously 

available. In fact, the scup stock is now 

considered rebuilt, not overfished, and 

not subject to overfishing in 2007, the 

year for which the most recent 

information was available during the 

DPSWG. 

The Council and Commission, at the 

time of their December 9–11, 2008, 

meeting, did not have the final DPSWG 

results; these were not available until 

January 20, 2009. As such, the Council 

and Commission adopted 

recommendations for scup measures 

based on the proposed 2009 scup TAL 

and recreational harvest limit as 

outlined in the October 28, 2008, 

proposed rule (73 FR 63934) issued by 

NMFS. This was a TAL of 7.34 million 

lb (3,329 mt) and a recreational harvest 

limit of 1.83 million lb (830 mt). This 

would have required a 63–percent 

reduction in scup landings for 2009. 

The DPSWG peer-review was 

concluded December 12, 2008. The 

peer-review panel recommended during 

the meeting proceedings that the new 

modeling approach, biological reference 

points, and revised stock status be 

accepted for management advice for 

scup, provided sufficient attention was 

paid to the many uncertainties 

remaining in the new assessment. On 

the strength of this recommendation, 

NMFS increased the scup TAL from the 

7.34 million lb (3,329 mt) proposed in 

October, to an 11.18–million-lb (4,170– 

mt) scup TAL in the final rule for the 

2009 specifications. This increased the 

recreational harvest limit from 1.83 

million lb (830 mt) to 2.59 million lb 

(1,173 mt). However, the Council was 

unable to revisit its recommendation, so 

the preferred measures proposed by the 

Council include a 12–inch (30.48–cm) 

minimum fish size, a January 1– 

February 28 and October 1–October 31, 

2009, fishing season, and a 25–fish 

possession limit. The non-preferred 

alternatives offered by the Council were 

to retain status quo measures from 2008 

or to close the Federal waters of the EEZ 

for 2009. 

On February 3, 2009, the 

Commission’s Scup Management Board 

(Board) elected to maintain status quo 

scup management measures from 2008 

for state waters in 2009. Under this 

system, the states from MA to NY, 

which typically account for 95 to 97 

percent of state water scup harvest, 

would have similar measures: Different 

minimum fish sizes; possession limits; 

and fishing seasons for private vessels/ 

shore based anglers and party/charter 

vessels. A minimum fish size of 10.5 

inches (26.7 cm), a common possession 

limit (10 fish), and a May 24 through 

September 26 fishing season for private 

vessels and shore-based anglers; party 

and charter vessels could take scup for 

up to 126 days under two distinct 

seasons with separate minimum fish 

sizes, possession limits, and seasons. 

One charter/party season, designated as 

‘‘bonus fishery,’’ has a minimum fish 

size of 11.0 inches (27.94 cm), a 45–fish 

possession limit, and is constrained to 

a 45-day period within May 15 through 

October 15. The second party/charter 

season designation is the ‘‘non-bonus 

fishery,’’ which carries an 11.0–inch 

(27.94–cm) minimum fish size, a 10– 

fish possession limit, and is 81 days in 

duration either prior to or following the 

dates of the open season. Due to low 

scup landings in NJ through NC, the 

Board approved the retention of status 

quo management measures for those 

states, i.e., a 10–inch (25.40–cm) 

minimum fish size, a 50–fish possession 

limit, and open seasons of January 1 

through February 29 and September 18 

through November 30. 

Very little of the scup recreational 

harvest comes from the Federal waters 

of the EEZ. The average total scup 

recreational harvest from Federal waters 

for the years 1998–2007 is slightly over 

6 percent. In 2007, the percentage was 

slightly over 2 percent. NMFS is 

proposing to implement the Council’s 

non-preferred alternative of status quo 

for the 2009 fishing year: A 10.5–inch 

(26.67–cm) minimum fish size; a 15– 

fish per person possession limit; and 

open seasons of January 1 through 

February 28, and October 1 through 

October 31, 2009. While these measures 

may result in a minor increase in 2009 

scup recreational landings, the majority 

of landings will occur from state waters 

where NMFS has no jurisdiction. The 

state or Federal combined recreational 

landings are not likely to result in the 

scup stock being overfished or to result 

in overfishing. 

Black Sea Bass 

Recreational landings in 2008 were 

estimated to have been 1.27 million lb 

(576 mt)--40 percent below the 2008 

target of 2.11 million lb (957 mt) but 

10.5 percent above the 2009 target of 

1.137 million lb (516 mt). The 2009 

recreational harvest limit of 1.137 

million lb (516 mt) is a 46.1–percent 

Federal Register / Vol. 74, No. 61 / Wednesday, April 1, 2009 / Proposed Rules 14763 

decrease from the 2008 target. Based on 

2008 estimated landings, a 10–percent 

reduction in coastwide landings is 

necessary to achieve the 2009 target. 

For Federal waters, the Council and 

Board have recommended measures that 

would increase the 12.0–inch (30.48– 

cm) minimum fish size from 2008 to 

12.5 inches (31.75 cm) in 2009 and 

maintain the status quo 25–fish 

possession limit and open season of 

January 1 through December 31, 2009. 

NMFS proposes to implement the 

Council and Board recommended 

measures, which are expected to 

constrain recreational black sea bass 

landings to the 2009 target. 

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 at the 

beginning of this section of the 

preamble and in the SUMMARY. A 

summary of the analysis follows. A copy 

of the complete 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 IRFA focuses 

upon the impacts on party/charter 

vessels issued a Federal permit for 

summer flounder, scup, and/or black 

sea bass, because these vessels are 

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 individual 

recreational anglers are likely to be 

impacted, they are not considered small 

entities under the RFA. Also, there is no 

permit requirement to participate in 

these fisheries; thus, it would be 

difficult to quantify any impacts on 

recreational anglers in general. 

The Council estimated that the 

proposed measures could affect any of 

the 962 vessels possessing a Federal 

charter/party permit for summer 

flounder, scup, and/or black sea bass in 

2007, the most recent year for which 

complete permit data are available. 

However, only 342 of these vessels 

reported active participation in the 

recreational summer flounder, scup, 

and/or black sea bass fisheries in 2007. 

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, i.e., the 

Federal regulatory measure that would 

be implemented if conservation 

equivalency is not implemented in the 

final rule; (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 no-action alternative for scup is 

the same (status quo) set of measures 

being proposed for 2009. As such, since 

there is no regulatory change being 

proposed for scup, there is no further 

discussion of the economic impacts 

within this section. 

The impacts of the proposed action on 

small entities (i.e., federally permitted 

party/charter vessels in each state in the 

Northeast region) was analyzed, 

assessing potential changes in gross 

revenues for all 18 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 2008 that would have been 

affected by the proposed 2009 

management measures. All 2008 party/ 

charter fishing trips that would have 

been constrained by the proposed 2009 

measures in each state were considered 

to be affected trips. MRFSS data 

indicate that anglers took 37.49 million 

fishing trips in 2008 in the Northeastern 

U.S., and that party/charter anglers 

accounted for 5 percent of the angler 

fishing trips, private/rental boat trips 

accounted for 51 percent of angler 

fishing trips, and shore trips accounted 

for 44 percent of recreational angler 

fishing trips. The number of party/ 

charter trips in each state ranged from 

36,566 in DE to 335,740 in NJ 

(excluding ME and NH). 

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 triptaking 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: 

14764 Federal Register / Vol. 74, No. 61 / Wednesday, April 1, 2009 / Proposed Rules 

1 2006 party/charter average expenditure estimate 

of $57.76 adjusted to 2008 equivalent using Bureau 

of Labor’s Consumer Price Index. 

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 2009. 

Total economic losses to party/charter 

vessels were then estimated by 

multiplying the number of potentially 

affected trips in each state in 2009, 

under the two hypothetical scenarios, 

by the estimated average access fee of 

$60.861 paid by party/charter anglers in 

the Northeast in 2007. Finally, total 

economic losses were divided by the 

number of federally permitted party/ 

charter vessels that participated in the 

summer flounder fisheries in 2007 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 2009. The 

analysis assumed that angler effort and 

catch rates in 2009 will be similar to 

2008. 

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 90 percent 

of summer flounder and 94 percent of 

scup landings in 2007, respectively), it 

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 2009. Reductions in fishing effort of 

this magnitude in 2009 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 

2009. 

Impacts of Summer Flounder 

Alternatives 

The proposed action for the summer 

flounder recreational fishery would 

limit coastwide catch to 7.16 million lb 

(3,247 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 § 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. 

The impact of the proposed summer 

flounder conservation equivalency 

alternative (in Summer Flounder 

Alternative 1) among states is likely to 

be similar to the level of landings 

reductions that are required of each 

state. As indicated above, each state 

except DE, VA, and NC would be 

required to reduce summer flounder 

landings in 2009, relative to state 2008 

landings, by the percentages shown in 

Table 1 of the preamble of this proposed 

rule. 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 adverse economic 

impacts, to the extent practicable, yet 

achieves the biological objectives of the 

FMP. Because states have a choice, it is 

expected that the states would adopt 

conservation equivalent measures that 

result in fewer adverse economic 

impacts than the more restrictive 

Commission adopted, NMFS proposed 

precautionary default measures (i.e., 

21.5–inch (54.61–cm) minimum fish 

size, a possession limit of one fish, and 

an open season of July 4 through 

September 7). Under the precautionary 

default measures, impacted trips are 

defined as trips taken in 2008 that 

landed at least one summer flounder 

smaller than 21.5 inches (54.61 cm) or 

landed summer flounder during closed 

seasons. The analysis concluded that 

implementation of precautionary default 

measures could affect 3.0 percent of the 

party/charter vessel trips in the 

Northeast, including those trips where 

no summer flounder were caught. 

The impacts of the NMFS proposed 

summer flounder coastwide alternative, 

i.e., a 20–inch (50.80–cm) minimum fish 

size, a two-fish possession limit, and a 

fishing season from May 1 through 

September 30, were evaluated using the 

quantitative method described above. 

Impacted trips were defined as 

individual angler trips taken aboard 

party/charter vessels in 2008 that 

landed at least one summer flounder 

smaller than 20 inches (50.80 cm), that 

landed more than two summer flounder, 

or landed summer flounder during 

closed seasons. The analysis concluded 

that the measures would affect 0.69 

percent of the party/charter vessel trips 

in the Northeast, including those trips 

where no summer flounder were caught. 

Continuation of the current regulatory 

summer flounder coastwide 

management measures (i.e., a 19–inch 

(48.26–cm) minimum fish size, two-fish 

possession limit, and a May 23 through 

September 1 fishing season) is not 

expected to constrain 2009 landings to 

the recreational harvest limit; therefore, 

continuation of those measures would 

be inconsistent with the summer 

flounder rebuilding program, the FMP, 

and the Magnuson-Stevens Act. 

Impacts of Black Sea Bass Alternatives 

The proposed action for the black sea 

bass recreational fishery would limit 

coastwide catch to 1.14 million lb (516 

mt) by imposing coastwide Federal 

measures throughout the EEZ. The 

impact of the Council and Commission 

preferred black sea bass alternative 

(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 January 1–December 

31, 2009) would reduce black sea bass 

landings by 12 percent in 2009 from 

2008 levels. Impacted trips were defined 

as trips taken in 2008 that landed at 

least one black sea bass smaller than 

12.5 inches (31.75 cm) or landed more 

than 25 black sea bass. Analysis 

concluded that 0.52 percent of federally 

permitted party/charter vessel trips 

could be impacted by this alternative. 

The impacts of the non-preferred 

black sea bass coastwide alternative for 

status quo (Black Sea Bass Alternative 2; 

12.0–inch (30.87–cm) minimum fish 

size, 25–fish per person possession 

limit, and no closed season) is not 

Federal Register / Vol. 74, No. 61 / Wednesday, April 1, 2009 / Proposed Rules 14765 

expected to constrain 2009 landings to 

the recreational harvest limit; therefore, 

continuation of those measures in 

Federal waters would be inconsistent 

with the FMP and the MagnusonStevens Act. 

Black Sea Bass Alternative 3, (a 12.0– 

inch (30.87–cm) minimum fish size, 25– 

fish per person possession limit, and 

closed fishing season from May 16–June 

14, 2009) would reduce landings by 13.3 

percent. This is the most restrictive 

alternative analyzed by the Council. 

Implementation of this alternative 

would result in a greater reduction than 

is required for the 2009 recreational 

black sea bass fishery. 

Regionally, projected federally 

permitted party/charter revenue losses 

in 2009 range from $1.20 million to 

$5.72 million in sales, $440,000 to $1.94 

million in income, and between 38 and 

192 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 2009 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 18 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 northeastern 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 18 

combinations of alternatives. For 

example, in MD, average losses are 

predicted to range from a high of $7,068 

per vessel to a low of $1,860 per vessel, 

assuming a 25–percent reduction in 

effort, as described above. Average gross 

revenue losses per vessel under each of 

the 18 combinations of alternatives were 

generally highest in NC followed by NY, 

MA, MD, NJ, RI, VA, CT, then DE. 

Summary 

The 2009 recreational harvest limits 

for summer flounder and scup are 15.3- 

and 41.5–percent higher, respectively, 

than the recreational harvest limits for 

year 2008. The 2009 black sea bass 

recreational harvest limit is 46 percent 

lower than the 2008 recreational harvest 

limit. 

The 2008 summer flounder 

recreational fishery exceeded the 

recreational harvest limit by 31 percent. 

As a result, the proposed recreational 

management measures for summer 

flounder are likely to be more restrictive 

for 2009 (i.e., either larger minimum 

fish size, lower possession limits, and/ 

or shorter fishing seasons) under the 

proposed conservation equivalency 

system (Summer Flounder Alternative 

1) than those in place in 2008, given the 

magnitude of exceeding the previous 

year recreational harvest limit. 

The scup recreational harvest limit 

was substantially increased for 2009. 

Action taken by the Commission to 

maintain status quo measures for state 

waters will result in landings that are 

similar to 2008. Only a very minor 

fraction of the recreational harvest limit 

is taken in the Federal waters of the 

EEZ. While retaining status quo 

measures for Federal waters may result 

in minor increases in scup recreational 

landings, over 95 percent of landings are 

expected to occur from state waters that 

are outside NMFS’s jurisdiction. Given 

the revised stock status for scup, 

maintenance of the status quo is not 

expected to result in overfishing or 

moving the stock towards an overfished 

condition. 

The proposed measures for black sea 

bass are more restrictive than the 

measures in place for 2008. 

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 maintenance of scup status 

quo was selected because it will allow 

for a modest fishery in Federal waters 

while ensuring that overfishing does not 

occur in 2009. The majority of scup 

recreational harvest occurs within state 

waters, beyond the jurisdiction of 

NMFS. The black sea bass management 

measures were selected as they are 

projected to permit the maximum 

amount of landings under the 2009 

recreational harvest limit. 

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: March 26, 2009 

Samuel D. Rauch III, 

Deputy Assistant Administrator For 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 648 is 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. In § 648.102, the first sentence is 

revised to read as follows: 

§ 648.102 Time restrictions. 

Unless otherwise specified pursuant 

to § 648.107, vessels that are not eligible 

for a moratorium permit under 

§ 648.4(a)(3) and fishermen subject to 

the possession limit may fish for 

summer flounder from May 1 through 

September 30. * * * 

* * * * * 

3. In § 648.103, paragraph (b) is 

revised to read as follows: 

§ 648.103 Minimum fish sizes. 

* * * * * 

(b) Unless otherwise specified 

pursuant to § 648.107, the minimum 

size for summer flounder is 20.0 inch 

(50.80 cm) TL for all vessels that do not 

qualify for a moratorium permit, and 

charter boats holding a moratorium 

permit if fishing with more than three 

crew members, or party boats holding a 

moratorium permit if fishing with 

passengers for hire or carrying more 

than five crew members. 

* * * * * 

4. In § 648.105, the first sentence of 

paragraph (a) is revised to read as 

follows: 

§ 648.105 Possession restrictions. 

(a) Unless otherwise specified 

pursuant to § 648.107, no person shall 

possess more than two summer flounder 

in, or harvested from, the EEZ, unless 

that person is the owner or operator of 

a fishing vessel issued a summer 

flounder moratorium permit, or is 

issued a summer flounder dealer permit. 

* * * 

* * * * * 

5. In § 648.107, paragraph (a) 

introductory text and paragraph (b) are 

revised to read as follows: 

§ 648.107 Conservation equivalent 

measures for the summer flounder fishery. 

(a) The Regional Administrator has 

determined that the recreational fishing 

measures proposed to be implemented 

by Massachusetts through North 

14766 Federal Register / Vol. 74, No. 61 / Wednesday, April 1, 2009 / Proposed Rules 

Carolina for 2009 are the conservation 

equivalent of the season, minimum fish 

size, and possession limit prescribed in 

§§ 648.102, 648.103, and 648.105(a), 

respectively. This determination is 

based on a recommendation from the 

Summer Flounder Board of the Atlantic 

States Marine Fisheries Commission. 

* * * * * 

(b) Federally permitted vessels subject 

to the recreational fishing measures of 

this part, and other recreational fishing 

vessels subject to the recreational 

fishing measures of this part and 

registered in states whose fishery 

management measures are not 

determined by the Regional 

Administrator to be the conservation 

equivalent of the season, minimum size, 

and possession limit prescribed in 

§§ 648.102, 648.103(b) and 648.105(a), 

respectively, due to the lack of, or the 

reversal of, a conservation equivalent 

recommendation from the Summer 

Flounder Board of the Atlantic States 

Marine Fisheries Commission, shall be 

subject to the following precautionary 

default measures: Season - July 4 

through September 7; minimum size - 

21.5 inches (54.61 cm); and possession 

limit - one fish. 

6. In § 648.143,paragraph (b) is 

revised to read as follows: 

§ 648.143 Minimum sizes. 

* * * * * 

(b) The minimum fish size for black 

sea bass is 12.5 inches (31.75 cm) TL for 

all vessels that do not qualify for a 

moratorium permit, and for party boats 

holding a moratorium permit, if fishing 

with passengers for hire or carrying 

more than five crew members, and for 

charter boats holding a moratorium 

permit, if fishing with more than three 

crew members. 

* * * * * 

[FR Doc. E9–7323 Filed 3–31–09; 8:45 am] 

BILLING CODE 3510–22–S