30002 Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations 

the Edges seasonal-area closure 

consistent with the intent of 

Amendment 30B. The Edges seasonalarea closure prohibits fishing for any 

species under Council jurisdiction from 

January 1 through April 30 each year. 

This closure creates a larger contiguous 

area within which fishing activity and 

fishing mortality will be reduced. This 

will provide additional protection for 

spawning aggregations of various 

grouper species some of which are 

experiencing overfishing, benefit other 

reef fish undergoing overfishing, and 

facilitate more effective enforcement. 

Additional rationale for the measures 

contained in Amendment 30B was 

correctly stated in the preamble to the 

Amendment 30B proposed rule (73 FR 

68390, November 18, 2008) and in the 

amendment and is not repeated here. 

Comments and Responses 

NMFS received one comment on the 

proposed rule from a recreational 

fisherman that was beyond the scope of 

this rulemaking. Therefore no response 

has been provided. 

Change from the Proposed Rule 

In § 622.2, this rule corrects a 

typographical error in the spelling of the 

species name for Caribbean queen 

conch. This correction is unrelated to 

the actions taken via Amendment 30B. 

Classification 

The Administrator, Southeast Region, 

NMFS, determined that this final rule is 

necessary for the conservation and 

management of the Gulf reef fish fishery 

and is consistent with the MagnusonStevens Act and other applicable laws. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

NMFS prepared a Final 

Environmental Impact Statement (FEIS) 

for Amendment 30B. The FEIS was 

published on October 24, 2008 (73 FR 

63470). 

NMFS prepared a FRFA for 

Amendment 30B. The FRFA 

incorporates the initial regulatory 

flexibility analysis (FRFA), a summary 

of the significant issues raised by the 

public comments in response to the 

IRFA, NMFS’s responses to those 

comments, and a summary of the 

analyses completed to support the 

actions, including the action in this 

rule. A summary of the FRFA is 

provided in the final rule for 

Amendment 30B published on April 16, 

2008 (73 FR 68390), and is not repeated 

here. A copy of the full analysis is 

available from NMFS (see ADDRESSES). 

List of Subjects in 50 CFR Part 622 

Fisheries, Fishing, Puerto Rico, 

Reporting and recordkeeping 

requirements, Virgin Islands. 

Dated: June 18, 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 622 is amended 

as follows: 

PART 622—FISHERIES OF THE 

CARIBBEAN, GULF, AND SOUTH 

ATLANTIC 

■ 1. The authority citation for part 622 

continues to read as follows: 

Authority: 16 U.S.C. 1801 et seq. 

■ 2. In § 622.2, the definition of 

‘‘Caribbean queen conch or queen 

conch’’ is revised to read as follows: 

§ 622.2 Definitions and acronyms. 

* * * * * 

Caribbean queen conch or queen 

conch means the species, Strombus 

gigas, or a part thereof. 

* * * * * 

■ 3. In § 622.34, the introductory 

heading of paragraph (k), paragraphs 

(k)(2), (k)(3), and the first sentence of 

paragraph (k)(5) are revised and 

paragraph (k)(1)(iii) is added to read as 

follows: 

§ 622.34 Gulf EEZ seasonal and/or area 

closures. 

* * * * * 

(k) Closure provisions applicable to 

the Madison and Swanson sites, 

Steamboat Lumps, and the Edges. 

(1) * * * 

(iii) The Edges is bounded by rhumb 

lines connecting, in order, the following 

points: 

Point North lat. West long. 

A 28°51′ 85°16′ 

B 28°51′ 85°04′ 

C 28°14′ 84°42′ 

D 28°14′ 84°54′ 

A 28°51′ 85°16′ 

(2) Within the Madison and Swanson 

sites and Steamboat Lumps, possession 

of Gulf reef fish is prohibited, except for 

such possession aboard a vessel in 

transit with fishing gear stowed as 

specified in paragraph (k)(4) of this 

section. 

(3) Within the Madison and Swanson 

sites and Steamboat Lumps during 

November through April, and within the 

Edges during January through April, all 

fishing is prohibited, and possession of 

any fish species is prohibited, except for 

such possession aboard a vessel in 

transit with fishing gear stowed as 

specified in paragraph (k)(4) of this 

section. The provisions of this 

paragraph, (k)(3), do not apply to highly 

migratory species. 

* * * * * 

(5) Within the Madison and Swanson 

sites and Steamboat Lumps, during May 

through October, surface trolling is the 

only allowable fishing activity. * * * 

* * * * * 

[FR Doc. E9–14881 Filed 6–23–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 090211163–9795–02] 

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: Final rule. 

SUMMARY: NMFS implements 

recreational management measures for 

the 2009 summer flounder and black sea 

bass fisheries and notifies the public 

that the recreational management 

measures for the scup fishery remain the 

same as in 2008. These actions are 

necessary to comply with regulations 

implementing the Summer Flounder, 

Scup, and Black Sea Bass Fishery 

Management Plan (FMP) and to ensure 

compliance with the Magnuson–Stevens 

Fishery Conservation and Management 

Act (Magnuson–Stevens Act). The intent 

of these measures is to prevent 

overfishing of the summer flounder, 

scup, and black sea bass resources. 

DATES: Effective July 24, 2009. 

ADDRESSES: Copies of supporting 

documents used by the Summer 

Flounder, Scup, and Black Sea Bass 

Monitoring Committees and of the 

Environmental Assessment, Regulatory 

Impact Review, and Initial Regulatory 

Flexibility Analysis (EA/RIR/IRFA) are 

available from Daniel Furlong, 

Executive Director, Mid–Atlantic 

Fishery Management Council, Room 

2115, Federal Building, 300 South New 

Street, Dover, DE 19901–6790. The EA/ 

RIR/IRFA is also accessible via the 

Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations 30003 

Internet at http://www.nero.noaa.gov. 

The Final Regulatory Flexibility 

Analysis (FRFA) consists of the IRFA, 

public comments and responses 

contained in this final rule, and the 

summary of impacts and alternatives 

contained in this final rule. Copies of 

the small entity compliance guide and 

EA/RIR/IRFA document are available 

from Patricia A. Kurkul, Regional 

Administrator, Northeast Region, 

NMFS, 55 Great Republic Drive, 

Gloucester, MA 01930–2276. 

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 by the Atlantic States 

Marine Fisheries Commission 

(Commission) and the Mid–Atlantic 

Fishery Management Council (Council), 

in consultation with the New England 

and South Atlantic Fishery Management 

Councils. The FMP and its 

implementing regulations, which are 

found at 50 CFR part 648, subparts A 

(general provisions), G (summer 

flounder), H (scup), and I (black sea 

bass), describe the process for specifying 

annual recreational management 

measures that apply in the Exclusive 

Economic Zone (EEZ). The states 

manage these fisheries within 3 nautical 

miles of their coasts, under the 

Commission’s plan for summer 

flounder, scup, and black sea bass. The 

Federal regulations govern fishing 

activity in the EEZ, as well as vessels 

possessing a Federal fisheries permit, 

regardless of where they fish. 

The 2009 coastwide recreational 

harvest limits, after deduction of 

research set–aside (RSA), 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 2009 quota specifications, inclusive 

of the recreational harvest limits, were 

previously determined to be consistent 

with the 2009 target fishing mortality 

rate (F) for summer flounder and the 

target exploitation rates for scup and 

black sea bass. 

The proposed rule to implement 

annual Federal recreational measures 

for the 2009 summer flounder, scup, 

and black sea bass fisheries was 

published on April 1, 2009 (74 FR 

14760), and contained management 

measures (minimum fish sizes, 

possession limits, and fishing seasons) 

intended to keep annual recreational 

landings from exceeding the specified 

harvest limits. 

2009 Recreational Management 

Measures 

Additional discussion on the 

development of the recreational 

management measures appeared in the 

preamble of the proposed rule and is not 

repeated here. All minimum fish sizes 

discussed below 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 Management 

Measures 

Based on the recommendation of the 

Commission, the NMFS Northeast 

Regional Administrator finds that the 

recreational summer flounder fishing 

measures proposed to be implemented 

by the states of Massachusetts through 

North Carolina for 2009 are the 

conservation equivalent of the season, 

minimum size, and possession limit 

prescribed in §§ 648.102, 648.103, and 

648.105(a), respectively. According to 

§ 648.107(a)(1), vessels subject to the 

recreational fishing measures of this 

part and landing summer flounder in a 

state with an approved conservation 

equivalency program shall not be 

subject to the more restrictive Federal 

measures, and shall instead be subject to 

the recreational fishing measures 

implemented by the state in which they 

land. Section 648.107(a) has been 

amended accordingly. The management 

measures will vary according to the 

state of landing, as specified in the 

following table. 

TABLE 1 — 2009 STATE RECREATIONAL MANAGEMENT MEASURES FOR SUMMER FLOUNDER

State 

Minimum Fish Size Possession Limit 

(number of fish) Fishing Season 

inches cm 

MA 18.5 46.99 5 July 1 through August 13 

RI 21.0 53.34 6 June 17 through December 31 

CT 19.5 49.53 3 June 15 through August 19 

NY 21.0 53.34 2 May 15 through June 15 and 

July 3 through August 17 

NJ 18.0 45.72 6 May 23 through September 4 

DE 18.5 46.99 4 January 1 through December 31 

MD1 18.0 45.72 3 April 15 through September 13 

VA 19.0 48.26 5 January 1 through December 31 

NC2 15.0 38.10 8 January 1 through December 31 

1Chesapeake Bay, MD – a 16.5–in (41.91–cm) minimum fish size, a 1–fish possession limit, and a fishing season of April 15–September 13 

applies. 2Pamlico Sound , NC – No person may possess flounder less than 14.0 in (35.56 cm) total length (TL) taken from internal waters for recreational purposes west of a line beginning at a point on Point of Marsh in Carteret County at 35° 04.6166′ N lat.–76° 27.8000′ W long., then 

running northeasterly to a point at Bluff Point in Hyde County at 35° 19.7000′ N lat.–76° 09.8500′ W long. In Core and Clubfoot creeks, the Highway 101 Bridge constitutes the boundary north of which flounder must be at least 14.0 (35.56 cm) in TL. 2Pamlico Sound , NC – No person may possess flounder less than 14.0 in (35.56 cm) total length (TL) taken from internal waters for recreational purposes west of a line beginning at a point on Point of Marsh in Carteret County at 35° 04.6166′ N lat.–76° 27.8000′ W long., then 

running northeasterly to a point at Bluff Point in Hyde County at 35° 19.7000′ N lat.–76° 09.8500′ W long. In Core and Clubfoot creeks, the Highway 101 Bridge constitutes the boundary north of which flounder must be at least 14.0 (35.56 cm) in TL. 

30004 Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations 

1State of New York et al. v. Gutierrez et al. Civil 

Action No. 08–cv–02503–CPS 

Albemarle Sound, NC – No person may possess flounder less than 14.0 in (35.56 cm) TL taken from internal waters for recreational purposes 

west of a line beginning at a point 35° 57.3950′ N lat.– 76° 00.8166′ W long. on Long Shoal Point; running easterly to a point 35° 56.7316′ N 

lat.–75° 59.3000′ W long. near Marker ‘‘5’’ in Alligator River; running northeasterly along the Intracoastal Waterway to a point 36° 09.3033′ N 

lat.–75° 53.4916′ W long. near Marker ‘‘171’’ at the mouth of North River; running northwesterly to a point 36° 09.9093′ N lat.–75° 54.6601′ W 

long. on Camden Point. 

Browns Inlet South, NC – No person may possess flounder less than 14.0 in (35.56 cm) TL in internal and Atlantic Ocean fishing waters for 

recreational purposes west and south of a line beginning at a point 34° 37.0000′ N lat.–77° 15.000′ W long.; running southeasterly to a point 34° 

32.0000′ N lat.–77° 10.0000′ W long. 

Scup Management Measures 

Table 2 contains the coastwide 

Federal measures for scup in effect for 

2008 and codified. The 2009 measures 

are unchanged from those at 50 CFR 

part 648, subpart I, and are presented in 

Table 2. 

TABLE 2 — 2009 SCUP RECREATIONAL MANAGEMENT MEASURES

Fishery 

Minimum Fish Size 

Possession Limit Fishing Season 

inches cm 

Scup 10.5 26.67 15 fish January 1 through February 28, and 

October 1 through October 31 

The scup fishery in state waters will 

be managed under a regional 

conservation equivalency system 

developed through the Commission over 

the last 7 years. Because the Federal 

FMP does not contain provisions for 

conservation equivalency, and states 

may adopt their own unique measures, 

the Federal and state recreational scup 

management measures will differ for 

2009. 

Black Sea Bass Management Measures 

This rule implements the black sea 

bass measures contained in the April 1, 

2009, proposed rule: An increase in 

minimum fish size from 12.0 to 12.5 

inches (30.48 cm to 31.75 cm) and 

status quo measures for possession limit 

(25 fish per person) and fishing season 

(January 1–December 31, 2009). Table 3 

contains the 2009 coastwide Federal 

measures for black sea bass. 

TABLE 3 — 2009 BLACK SEA BASS RECREATIONAL MANAGEMENT MEASURES

Fishery 

Minimum Fish Size 

Possession Limit Fishing Season 

inches cm 

Black Sea Bass 12.5 31.75 25 fish January 1 through December 31 

Comments and Responses 

Four comment letters were received 

regarding the proposed recreational 

management measures (74 FR 14760, 

April 1, 2009). Comments were received 

from two organizations: One from the 

New York State Department of 

Environmental Conservation’s (NY DEC) 

Bureau of Marine Fisheries; and the 

other on behalf of a recreational fishing 

trade and advocacy organization, the 

United Boatmen of New York (UBNY). 

The other two comments were from 

private citizens. One private citizen 

commenter expressed general 

displeasure at how Total Allowable 

Landings (TALs) and other quotas are 

established but did not provide specific 

comment on the recreational 

management measures. No specific 

response is provided to this individual’s 

comments, as the relevance to the 

recreational management measures 

could not be ascertained. 

The materials submitted by UBNY did 

not make specific comments about the 

proposed 2009 recreational management 

measures. The materials submitted 

reference the comments submitted by 

NY DEC and highlight many similar 

issues specifically commented on by NY 

DEC. Therefore, NMFS considers the 

response to the NY DEC comments as 

responsive to the UBNY concerns as 

well. Many of the issues raised by 

commenters for the 2009 recreational 

management measures are identical to 

those raised for the 2008 recreational 

management measures and are, in turn, 

the same as the arguments made by 

plaintiffs, which include the NY DEC 

and UBNY, in an ongoing lawsuit 

against the Secretary of Commerce 

(Secretary) for implementation of the 

2008 summer flounder measures.1

Comment 1: The NY DEC alleged that 

state–by–state conservation equivalency 

violates National Standard 2 of the 

Magnuson–Stevens Act, which requires 

conservation and management actions 

to be based upon the best available 

scientific information. 

Specifically, the commenter alleged 

the following ways that state–by–state 

conservation equivalency violates 

National Standard 2: (a) The use of 

Marine Recreational Fishery Statistical 

Survey (MRFSS) data to develop state– 

by–state conservation equivalency 

measures has inadequate resolution for 

state–level monitoring and management. 

The comment cites the 2006 NOAA– 

commissioned National Academy of 

Sciences independent review of MRFSS 

that stated monitoring fisheries at a state 

level is a finer stratification than 

originally intended for the data 

collected, and that the existing sampling 

strata may be too coarse a resolution to 

generate estimates that are adequate for 

management requirements; (b) the use of 

1998 as a landings baseline as the 

starting point for landings reductions is 

outdated, inadequate, and flawed; (c) 

state–by–state conservation equivalency 

is not responsive to changes that have 

occurred in stock status wherein the 

summer flounder stock has redistributed 

and is composed of larger, older fish, 

particularly adjacent to New York State; 

and (d) the level of angler effort and 

distribution has changed substantially 

since 1998, and MRFSS data would 

support increasing the percentage of 

Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations 30005 

summer flounder recreational landings 

allocated to New York. 

Response: NMFS disagrees that 

managing the summer flounder 

recreational fishery using state–by–state 

conservation equivalency is a violation 

of National Standard 2. The following 

responds to the specific points raised in 

the above comment: 

a. The information provided by 

MRFSS, along with additional 

information provided by individual 

states and fishery independent surveys, 

is sufficient and appropriate to manage 

the recreational summer flounder 

fishery on a state–by–state basis. 

The analytical process for 2009 was 

not dissimilar to that used in 2008: Both 

the Council and Commission considered 

the precision of MRFSS estimates at a 

state–by–state level; discussed the 

adequacy of, and equity issues related 

to, the 1998 landings baseline; evaluated 

the performance of conservation 

equivalency in the prior year, including 

the ‘‘performance–based adjustment 

factor’’ implemented for 2008; 

contemplated both coastwide and 

regional approaches to management; 

and, in conclusion, recommended the 

continued use of conservation 

equivalency with new modifications to 

NMFS for 2009. 

The Commission established a 

requirement for 2009 that at least 50 

percent of the necessary reductions for 

the fishing year be achieved by season 

closures rather than by imposing more 

stringent size or bag limits. This system 

modification was created by the 

Commission in response to the 2008 

required ‘‘performance–based 

adjustment factor’’ having poor success 

in constraining landings to the required 

levels. The Commission requirement to 

call for a substantive adjustment to 

fishing seasons to achieve the desired 

individual state landing reductions is 

consistent with recommendations from 

the Council’s Summer Flounder 

Monitoring Committee and 

Commission’s Summer Flounder 

Technical Committee, both scientific 

advisory bodies to the Council and 

Commission, respectively, and NMFS. 

The recommendation for season 

closures is based on the premise that 

modification to seasons, either through 

periodic in–season closures or 

shortened overall seasons, are better 

suited to ensure a reduction in landings 

than are either changes in minimum fish 

size or possession limits. Fishery 

closures are noted by the Monitoring 

Committee and Technical Committee as 

having more significant compliance 

rates and, thus, result in near–zero 

landings when applied. Modifications to 

minimum fish size and possession 

limits have demonstrated higher levels 

of non–compliance that minimize their 

effectiveness. Additionally, inter– 

annual fish growth may result in 

diminished effectiveness of minimum 

fish sizes if that growth keeps pace with 

increases in size. The requirement to 

adjust seasons to better ensure landing 

reductions represents further refinement 

by the Commission to ensure that state– 

by–state conservation equivalency 

functions as envisioned and achieves 

the required conservation objectives. 

Framework Adjustment 2 to the FMP 

(66 FR 36208, July 11, 2001) states that 

conservation equivalency may only be 

used by area (i.e., states) if the 

proportional standard error of the 

MRFSS landings estimate, by area, is 

less than 30 percent. On a state–by–state 

basis, the 2008 MRFSS estimates of 

landings utilized in establishing the 

2009 conservation equivalency program 

have proportional standard errors 

ranging from a high of 26.3 percent for 

Massachusetts to a low of 10.8 percent 

for New York. This is compared to 8.3 

percent for the Mid–Atlantic states 

(New York to Virginia), combined, and 

12.1 percent for the New England states 

(Maine to Connecticut) combined. 

While the proportional standard error is 

lower when dealing with larger data 

aggregations, the error levels associated 

with individual states are well within 

the acceptable error levels specified in 

Framework Adjustment 2 to the FMP, 

which implemented the regulatory 

structure to permit management of the 

summer flounder recreational fishery 

through conservation equivalency. 

As was outlined in the 2008 response 

to comments (May 23, 2008; 73 FR 

29990), NMFS has been aware of 

limitations in the MRFSS design and 

data for some time. It is, in fact, why 

NOAA commissioned the review by the 

National Academy of Sciences. While 

the review pointed out numerous areas 

for improvement of the MRFSS 

sampling design, nowhere in the 

assessment did the National Academy of 

Sciences’ reviewers indicate that use of 

the MRFSS data at smaller spatial scales 

(i.e., state–by–state) was an 

inappropriate use of the data. Clearly, 

the precision of the landings estimates 

are improved when at an aggregate, 

coastwide level, but the use of the data 

to establish catch at a state level is not 

a violation of National Standard 2. The 

proportional standard error remains 

acceptable at the state–by–state level of 

resolution. The Commission’s Technical 

Committee explored using the upper 

bound of the proportional standard error 

for each state’s landings estimate as a 

means to make conservation 

equivalency more robust in 2008. The 

Technical Committee found that such 

an approach was impracticable, as it 

would have required many states to 

make downward harvest adjustments in 

years when no such adjustment was 

necessary. These considerations of the 

accuracy and precision of MRFSS data 

continue to be true for the 2009 state– 

by–state conservation equivalency 

program. Moreover, the Commission has 

modified the conservation equivalency 

approach for 2009, attempting to further 

ensure that the system functions as 

envisioned. 

NMFS does not disagree that the use 

of current MRFSS methodology and 

data has moved well beyond their 

originally intended purpose. However, 

as has often been stated in the past, 

MRFSS continues to be the only source 

of data currently available to assess the 

effort, harvest, and discards in 

recreational fisheries at any spatial 

scale. NMFS understands the 

frustrations and disagreements that arise 

with the MRFSS data set when it is used 

for certain management purposes and is 

working to improve the quality and 

utility of data collected for recreational 

fisheries management. Were MRFSS 

data not utilized, there would be no 

alternative means to quantify 

recreational harvest, participation 

levels, or to assess management 

measures on a coastwide or state–by– 

state basis for all Atlantic states in the 

Northeast Region. Clearly, this would 

present substantial complications to 

effectively managing the summer 

flounder recreational fishery and the 

Magnuson–Stevens Act required 

objective of rebuilding the summer 

flounder stock. NMFS’s development 

and implementation efforts for the 

Marine Recreational Information 

Program (MRIP), designed to address the 

National Academy of Sciences 

recommendations, fishery management 

needs, and to be responsive to input 

from recreational anglers, are ongoing. 

MRIP is the revised recreational survey 

methodology and data collection 

designed to be responsive to the 

National Academy of Sciences peer– 

review recommendations. Detailed 

information on the MRIP program can 

be found on the NMFS Office of Science 

and Technology web site: http:// 

www.st.nmfs.noaa.gov/mrip/. Some 

aspects of the MRIP program will 

become effective in the 2009 fishing 

year. In addition, a national saltwater 

angler registry, as required by the 

Magnuson–Stevens Reauthorization Act 

of 2006, will become effective on 

January 1, 2010. This registry will 

greatly assist recreational fishery data 

collection efforts. 

30006 Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations 

b. The conservation equivalency 

system was implemented in 2001 by 

Framework Adjustment 2 to the Federal 

FMP (66 FR 36208, July 11, 2001) and 

the Commission’s companion action 

Addendum III to the Commission’s 

Summer Flounder, Scup, and Black Sea 

Bass FMP. Under this process, states are 

allowed to design management 

measures to achieve their specified 

recreational management targets which, 

in turn, ensures that the coastwide 

recreational harvest limit will be 

achieved. NMFS has implemented 

conservation equivalency, as 

recommended by the Council and 

Commission, in each year since 2001. 

There are New York representatives on 

both the Council and Commission. 

The overarching process of 

conservation equivalency establishes a 

set of guidelines for states to tailor 

management measures that meet the 

conservation objectives of the FMP 

rather than being subject to a one–size– 

fits–all coastwide approach. The 

conservation equivalency framework is 

uniform and applied consistently for all 

states, without differentiating among 

U.S. citizens, nationals, resident aliens, 

or corporations on the basis of their 

state of residence. Individual states are 

free to develop, based on the fishery 

practices in their state, any combination 

of minimum fish size, possession limit, 

and fishing season to ensure that, when 

paired with the remaining Atlantic 

coastal states, the coastwide recreational 

harvest limit will not be exceeded. Each 

state’s circumstance with respect to 

landings and overage is unique to that 

state and argues against the application 

of the same measures for each state. The 

Commission’s Technical Committee 

evaluates the proposed state measures 

and, if sufficient, a recommendation to 

adopt, as functionally equivalent, the 

reviewed and approved measures is 

forwarded by the Commission to NMFS 

for implementation. This ensures that 

the conservation objectives of the FMP 

and the summer flounder rebuilding 

program are met. 

To achieve conservation equivalency, 

the Commission, not NMFS, establishes 

a base recreational allocation that each 

state receives from the coastwide 

recreational harvest limit and specifies 

the percent reduction or liberalization 

in landings each state’s measures must 

meet for each year. The conservation 

equivalency system does not result in a 

direct distribution of fishing privileges 

to individual states by NMFS. This 

allocation is not earmarked solely for 

the residents of an individual state; 

rather, any landing made in the state in 

question is counted against that state’s 

recreational allocation. Fishery 

participants are free to participate in 

multiple states, land in adjacent states, 

etc., and are not discriminated against 

based on their state of residence. 

c. NMFS agrees that the status of the 

summer flounder stock has changed 

since 1998, as the stock has experienced 

rebuilding toward the maximum 

sustainable yield level. The summer 

distribution of summer flounder is, as 

stated by the commenters, primarily in 

inshore areas from the Mid–Atlantic 

Bight to southern New England. There 

has been an increase in both fish ages 

and sizes in the past decade. NMFS 

reiterates what was stated in response to 

comments in 2008: That catch levels 

(i.e., quotas) are established annually 

and that increases in stock size, 

distribution, and increases in fish size 

and age are all captured within the stock 

assessment framework utilized to 

generate quota–related information. The 

issue raised by NY DEC is one of 

allocation that functions separately from 

stock status. (See response to Comment 

2 for additional information.) 

The Commission has continued to 

establish the basis for the state 

recreational harvest allocations as the 

percentage of 1998 coastwide 

recreational landings by state. However, 

the Commission is at liberty to revise or 

amend these allocation percentages 

independently of the Council and/or 

NMFS as specific state recreational 

fishery percent allocations are not 

codified in the Federal regulations that 

implement the conservation 

equivalency program. The Commission 

has had significant discussion in both 

2007 and 2008 about reevaluating 1998 

as the baseline year. In both years, the 

Commission has elected to continue 

using 1998 coastwide landings by state 

as the baseline. The continued use of 

1998 landings data by the Commission 

was not arbitrary; the intent of 1998 as 

the base allocation year was to establish 

a reference against which the effects of 

proposed regulations could be 

effectively evaluated. 

d. The Commission is at liberty to 

explore modifications to state 

allocations based on angler–related 

statistics, number of anglers, or angler 

effort. To date, the Commission has 

elected to use the last year (1998) in 

which consistent measures were applied 

coastwide as the starting point for 

annual allocations. NMFS has no 

grounds to disapprove the 

recommended 2009 conservation 

equivalency measures recommended by 

the Commission because one member 

state of the Commission disagrees with 

the allocation structure utilized to 

derive equivalent measures. The amount 

of fish provided each state from the 

overall recreational harvest limit is 

wholly a function of the Commission 

process. 

For these reasons, NMFS contends 

that implementing conservation 

equivalency, as recommended by the 

Council and Commission for 2009, does 

not violate National Standard 4 or 

National Standard 2 of the Magnuson– 

Stevens Act. 

Comment 2: The NY DEC also alleged 

that state–by–state conservation 

equivalency violates National Standard 

4 of the Magnuson–Stevens Act, which 

states that conservation and 

management actions implemented by 

NMFS shall not discriminate between 

residents of different states. The 

commenter raised concerns about 

disparities that arise between adjacent 

states’ management measures under the 

state–by–state conservation equivalency 

management system, specifically citing 

the differences between 2009 New York 

and adjacent New Jersey and 

Connecticut measures. The commenter 

asserts that such differences are highly 

inequitable, unfair, and have no linkage 

to conservation and recovery of summer 

flounder. The commenter also stated 

that the overages that have occurred in 

New York waters in recent years are not 

the result of cheating, but are a result of 

recovery of summer flounder and 

natural changes to the summer flounder 

population. Thus, the commenter states, 

New York is being punished unfairly for 

conditions beyond its control. 

Response: NMFS disagrees that state– 

by–state conservation equivalency is a 

violation of National Standard 4 for the 

reasons outlined in response to 

comment 1c. The recreational quotas 

distributed to the states under the 

Commission’s Interstate Summer 

Flounder FMP are based on the 

application of the same rule to each 

state; individual state quotas are based 

on the state’s share of the overall 1998 

recreational catch of summer flounder. 

Understandably, since recreational 

landings varied in each state, state 

recreation quotas derived from the 

landings would vary as well. So too 

would the measures in each state 

developed to achieve the state’s 

conservation equivalency with the 

Federal coastwide measures adopted by 

the Council and Commission as a non– 

preferred alternative. In essence, 

differing state measures are derived 

from the application of the same rule to 

each state and designed to achieve the 

same result using varying quotas. The 

application of the same rule to a number 

of states that yields different results 

among those states due to disparate 

landing levels is consistent with 

National Standard 4. 

Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations 30007 

NY DEC asserts that there is nothing 

that can be done to control excessive 

recreational harvest, given the large 

number of anglers paired with 

availability of large summer flounder in 

New York waters, and further insinuates 

that only a change in allocation will 

provide relief to the continued annual 

overages. The angler noncompliance 

rate with the minimum fish sizes 

established for New York has ranged 

from 5 to 13 percent during the years 

1999 to 2008. NMFS contends that there 

are indeed measures that could be 

undertaken that would ensure that New 

York landings do not exceed their given 

allocation in any given year: Closed 

seasons during peak fishing seasons; 

shortened overall seasons; consideration 

of angler rates of noncompliance in 

calculating effectiveness of proposed 

measures; increases in enforcement 

efforts; supplementation of MRFSS 

collected data by state data–collection 

programs; and use of a buffer to 

sufficiently mitigate management 

uncertainty when crafting recreational 

management measures are all 

approaches that have to date, gone 

largely unused by NY DEC in 

establishing recreational summer 

flounder measures. NMFS contends that 

New York must ensure responsible, 

effective measures in 2009 to break the 

cycle wherein landings targets are 

consistently exceeded. 

Comment 3: Comments by the NY 

DEC on managing summer flounder as 

a unit stock are similar to those 

provided on the 2008 recreational 

management. The comment suggests 

that state–by–state conservation 

equivalency violates National Standard 

3 of the Magnuson–Stevens Act, which 

requires individual fish stocks to be 

managed as a unit throughout their 

ranges, to the extent practicable. This 

year, additional comments were added 

regarding the scientific reasoning for 

state–by–state management. 

Response: NMFS disagrees with the 

commenter, as the summer flounder 

stock is managed as a single unit, 

consistent with National Standard 3. 

National Standard 3 does not require 

that management measures within the 

management unit be the same. 

Management is cooperative among the 

Commission, which represents 

individual states in the management 

unit, the Council, and NMFS. The stock 

assessment conducted in support of 

annual TAL setting is for the entire 

Northeast Region management unit for 

summer flounder, from Maine to North 

Carolina. Catch limits for the 

recreational and commercial fisheries 

are established for the entire coast. The 

overarching commercial TAL is 

managed on a state–by–state basis, 

parsed by historic landings percentage 

by each state. Conversely, the 

recreational fishery may employ 

coastwide measures, or regional or 

state–by–state conservation equivalency 

to achieve the coastwide recreational 

harvest level. When state–by–state 

conservation equivalency is utilized for 

management, the individual state 

management measures are structured to 

achieve equivalency with the 

overarching coastwide (i.e., single 

management unit) recreational harvest 

limit. Furthermore, the regulations 

implementing National Standard 3 (50 

CFR 600.320) clearly state that 

management measures need not be 

identical for each geographic area 

within the management unit. 

The comment that fish do not 

recognize geopolitical boundaries is 

often used as an argument against 

management systems. The overarching 

scientific approach for managing the 

summer flounder stock has been 

previously described. An annual catch 

level is determined to ensure that 

conservation objectives are met for the 

year. From there, for summer flounder, 

the overall catch level is parsed into 

commercial and recreational sectors and 

further subdivision to states. These 

further subdivisions are not scientific in 

nature, but are allocative, and there are 

no requirements that the allocation be 

inherently biologically based, provided 

the sum of the allocations does not 

exceed the annual science–based 

conservation objective. As previously 

described, the recreational state–by– 

state allocation criteria utilized by the 

Commission is based on the last year of 

consistent coastwide measures (1998). 

The Commission is free to revisit and 

modify this allocation structure at any 

time as the individual state recreational 

harvest shares are not codified in 

Federal regulation. 

Comment 4: NY DEC has alleged that 

state–by–state conservation equivalency 

violates National Standard 6 of the 

Magnuson–Stevens Act, which states 

that conservation and management 

measures shall take into account and 

allow for variations among, and 

contingencies in, fisheries, fishery 

resources, and catches. The basis for the 

commenter’s assertion is that 

conservation equivalency does not 

address a northward shift in summer 

flounder stock distribution. 

Response: NMFS disagrees and asserts 

that the commenters have 

misinterpreted the intent of National 

Standard 6, which is to ensure that an 

FMP management regime includes some 

protection against uncertainties that 

may arise. National Standard 6 directs 

FMPs to have a suitable buffer, in favor 

of conservation, to deal with 

uncertainty, which may also be stated as 

a conservative approach. Examples 

provided in NMFS guidance on 

National Standard 6 (50 CFR 600.336) 

include reductions in optimum yield, 

establishment of reserves, and 

adjustable management techniques to 

compensate for changes that occur 

during a fishing year as suitable buffers 

to mitigate uncertainty. 

In regard to conservation equivalency, 

a summer flounder stock assessment is 

conducted annually, and fully accounts 

for, among other things, stock 

distribution, changes in stock size, and 

fishery removals. The stock assessment 

does fully account for changes in stock 

dynamics and distribution in providing 

the basis for setting the annual 

coastwide TAL, which is then divided 

among the recreational and commercial 

fisheries. 

Further, both the states and NMFS are 

able to monitor recreational harvests 

during the fishing season, and both can 

take corrective or closure actions to 

ensure that mortality objectives or 

harvest targets are not exceeded. For 

these reasons, NMFS finds that the use 

of state–by–state conservation 

equivalency complies with National 

Standard 6 of the Magnuson–Stevens 

Act. 

Comment 5: NY DEC commented that 

state–by–state conservation equivalency 

does not appear to be conserving the 

fishery and that coastwide measures 

would make better use of the available 

data and provide a new baseline year for 

future landings reductions. NY DEC has 

requested that NMFS implement 

coastwide measures instead of the 

Council and Commission’s preferred 

alternative for state–by–state 

conservation equivalency. 

Response: NMFS has been continually 

concerned with what was described by 

NY DEC as the states’ practices of 

adjusting recreational measures to 

maximize harvest within the individual 

state allocation or, more plainly stated, 

conducting analysis that gets as close as 

possible to the landings limit without 

exceeding, on paper, said limit. Many of 

NMFS’s concerns, raised in 

correspondence from NMFS Northeast 

Regional Administrator Patricia Kurkul 

and former Assistant Administrator Dr. 

William Hogarth, have been quoted 

often in the NY DEC comments. 

The conservation equivalency system 

has not remained static since NMFS first 

raised concerns that the system must be 

improved to provide a higher likelihood 

of constraining landings to the 

established recreational harvest limit. 

There have been positive advances in 

30008 Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations 

how the conservation equivalency 

analysis is conducted and the 

stipulations that the Commission has 

required of member states, all of which 

are designed to improve the 

performance of the system and ensure 

conservation objectives are met. NMFS 

has given deference to the states through 

the Commission process to continue to 

explore measures that improve the 

performance of conservation 

equivalency, provided the requirements 

of Framework Adjustment 2 to the FMP, 

the overarching FMP regulations, the 

Magnuson–Stevens Act, and other 

applicable law are satisfied in so doing. 

NMFS continues to encourage 

individual states, though the 

Commission, to conduct analyses that 

provide a buffer between expected 

landings and individual states landing 

limits in the absence of more qualitative 

means of improving conservation 

equivalency. 

As noted in the comment, the 

Commission required a ‘‘performance– 

based adjustment factor’’ for the 2008 

fishery, as well as requiring the use of 

a predicted average fish weight. This 

system further reduced states’ 2008 

targets by a factor that was derived by 

taking the average of yearly harvest-totarget performance by state from 2001– 

2007. As indicated in the comment by 

NY DEC, this system did not ensure that 

the 2008 recreational management 

targets were not exceeded by a number 

of states. 

For 2009, the Commission is requiring 

a new refinement to the conservation 

equivalency system: States that have 

required reductions to meet their 2009 

landings targets must ensure that at least 

half of the reduction is the result of 

modification to fishing seasons. NMFS 

contends that this is a continued 

demonstration of the Commission’s 

willingness to make substantive 

improvements in the conservation 

equivalency management system. Were 

the ‘‘performance–based adjustment 

factor’’ recommended for 2009 or no 

modification of how states set minimum 

fish size, possession limit, and fishing 

season required by the Commission, the 

approval of state–by–state conservation 

equivalency would have been difficult 

for NMFS to justify. This is because of 

the past repetitive failures of the 

unmodified conservation equivalency 

program and NMFS’s need to rebuild 

the summer flounder stock by 2013. 

For NMFS to disapprove the Council’s 

recommendation and substitute 

alternative measures, in this case 

coastwide management measures, 

NMFS must reasonably demonstrate 

that the recommended measures are 

either inconsistent with applicable law 

or otherwise demonstrate that the 

conservation objectives of the FMP will 

not be achieved by implementing the 

recommendation in question. NMFS 

does not find the Council and 

Commission’s recommendation are 

legally suspect or incapable of achieving 

the FMP’s conservation objectives in 

light of the reduction in fishing season 

mandated by the Commission for use in 

2009. 

However, NMFS remains concerned 

that there is little margin for error in the 

remaining 3 years of the summer 

flounder rebuilding plan (2010–2012). 

Therefore, recreational landings will be 

monitored in season and, if necessary to 

ensure the mortality objectives are not 

compromised for 2009, an inseason 

closure of the EEZ may occur. Any such 

closure action would be announced 

through multiple media outlets, 

including publication of a notice in the 

Federal Register. 

Use of information on a coastwide 

basis would improve the precision of 

the MRFSS estimates and would, as 

indicated by the commenters, provide a 

new baseline year of landings for future 

use. The level of precision provided 

under state–by–state conservation 

equivalency is not of insufficient 

resolution for management (see 

response to Comment 1) and, should 

states have concerns about the precision 

of landings estimates at a state level, 

NMFS recommends establishing 

recreational management measures that 

provide a sufficient buffer to mitigate for 

any loss of precision. 

NMFS is implementing, through this 

final rule, state–by–state conservation 

equivalency as recommended by both 

the Council and Commission for the 

reasons previously outlined in the 

preamble to this rule. Under 

conservation equivalency, each state has 

implemented a unique minimum fish 

size, possession limit, and fishing 

season tailored to ensure that these 

measures result in recreational landings 

equivalent to the coastwide recreational 

harvest level. 

Comment 6: NY DEC requested that 

the 2008 landings estimate for New 

York be adjusted from 600,000 fish to 

565,000 fish. The change in number is 

a result of the final 2008 MRFSS catch 

data being available as opposed to the 

estimated landings used during the 

Council and Commission recreational 

management measures development 

discussion. 

Response: The individual state 

landings limits, including the percent 

reduction from the previous year 

landings estimate and target number of 

fish to be landed, are specified through 

the Commission process. Estimated 

landings are often utilized as final prior 

year landings estimates are not available 

until the first quarter of the following 

year. The Commission’s Summer 

Flounder Management Board would 

need to approve measures for New York 

designed to achieve any modified 2009 

landings target. NMFS recommends that 

NY DEC pursue this discussion with the 

Commission and Summer Flounder 

Management Board. 

Comment 7: One commenter stated 

that the 2009 recreational management 

measures are unfair to the financial 

lower class, further stating that if one 

has money and he/she can buy a permit, 

they can presumably participate in the 

recreational fisheries for summer 

flounder, scup, or black sea bass. 

Response: The Council conducted 

analysis consistent with Executive 

Order 12898, which directs each Federal 

agency to achieve environmental justice 

as part of its mission by identifying and 

addressing, as appropriate, 

disproportionately high and adverse 

human health or environmental effects 

of its programs, policies, and activities 

on minority populations and low– 

income populations. Council analysis 

indicated that 28 percent of marine 

recreational anglers fish for reasons 

other than recreation and one–third rely 

on catching marine resources as a cost– 

saving food source or supplement to 

income. The black sea bass and scup 

possession limits are unchanged for 

2009. Under conservation equivalency 

for summer flounder, the management 

measures should permit the fishery to 

operate in a manner that dissipates, to 

the extent practicable, adverse effects on 

the angling population while ensuring 

that conservation objectives are met. 

The Council concluded that, based on 

this analysis contained in the EA/RIR/ 

IRFA document (see ADDRESSES for 

information on obtaining the source 

document), the actions of the 2009 

recreational management measures were 

not expected to cause 

disproportionately high adverse or 

economic effects on low–income 

populations. 

Regarding the commenter’s second 

point, there are currently no Federal 

permit fees for private anglers or for 

individuals to obtain a Federal party/ 

charter permit. 

Classification 

The Administrator, Northeast Region, 

NMFS, determined that this final rule 

implementing the 2009 summer 

flounder, scup, and black sea bass 

recreational management measures is 

necessary for the conservation and 

management of the summer flounder, 

scup, and black sea bass fisheries, and 

Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations 30009 

that it is consistent with the Magnuson– 

Stevens Act and other applicable laws. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

Included in this final rule is the FRFA 

prepared pursuant to 5 U.S.C. 604(a). 

The FRFA incorporates the economic 

impacts described in the IRFA, a 

summary of the significant issues raised 

by the public comments in response to 

the IRFA, NMFS’s responses to those 

comments, and a summary of the 

analyses completed to support the 

action. Copies of the EA/RIR/IRFA and 

supplement are available from the 

Council and NMFS (see ADDRESSES). 

Final Regulatory Flexibility Analysis 

Statement of Objective and Need 

A description of the reasons why this 

action is being taken, and the objectives 

of and legal basis for this final rule are 

explained in the preambles to the 

proposed rule and this final rule, and 

are not repeated here. 

A Summary of the Significant Issues 

Raised by the Public Comments in 

Response to the IRFA, a Summary of the 

Assessment of the Agency of Such 

Issues, and a Statement of Any Changes 

Made in the Proposed Rule as a Result 

of Such Comments 

A summary of the comments received 

and NMFS’s responses thereto is 

contained in the preamble of this rule. 

None of those comments addressed 

specific information contained in the 

IRFA economic analysis. One comment 

received stated that the 2009 

recreational management measures were 

unfair to the financial lower class. See 

response to Comment 7 in the Comment 

and Responses section. No changes have 

been made from the proposed rule as a 

result of the comments received. 

Description and Estimate of Number of 

Small Entities to Which This Rule Will 

Apply 

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. 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

No additional reporting, 

recordkeeping, or other compliance 

requirements are included in this final 

rule. 

Description of the Steps Taken to 

Minimize Economic Impact on Small 

Entities 

No–action alternatives. The economic 

analysis conducted in support of this 

action assessed the impacts of the 

various management alternatives. In the 

EA, the no action alternative for each 

species is defined as the continuation of 

the management measures as codified 

for the 2008 fishing season. The no– 

action measures were analyzed in 

Alternative 2 for each species in the 

Council’s EA/RIR/IRFA. 

For summer flounder, state–specific 

implications of the no–action 

(coastwide) alternative of a 20.0–inch 

(50.80–cm) minimum fish size, a two– 

fish possession limit, and a May 1 

through September 30, 2009, fishing 

season would not achieve the mortality 

objectives required, and, therefore, 

cannot be continued for the 2009 fishing 

season. Similarly, the no–action 

alternative for black sea bass (a 12.0–in 

(30.48–cm) minimum fish size, a 25– 

fish possession limit, and no closed 

fishing season) would result in fishing 

mortality that exceeds the level 

established for 2009 and, therefore, 

cannot be continued for the 2009 fishing 

season. This rule implements the no– 

action alternative for scup (i.e., status 

quo). The implications of so doing are 

not substantial; the management 

measures remain the same as those in 

place for 2008. Council analysis 

indicates that minimal impact may 

occur even with continuation of the 

status quo scup measures. These 

impacts would likely result from 

changes in year-to-year costs associated 

with fishing for scup. 

Summer flounder alternatives. In 

seeking to minimize the impact of 

recreational management measures 

(minimum fish size, possession limit, 

and fishing season) on small entities 

(i.e., Federal party/charter permit 

holders), NMFS is constrained to 

implementing measures that meet the 

conservation objectives of the FMP and 

Magnuson–Stevens Act rebuilding 

program requirements. As previously 

indicated, the no–action alternative for 

summer flounder was considered but 

rejected by the Council, and 

subsequently NMFS, on the grounds 

that analysis indicated it would not 

ensure that the 2009 mortality objectives 

would be met. The remaining 

alternatives examined by the Council 

and forwarded for consideration by 

NMFS consisted of the preferred 

alternative of state–by–state 

conservation equivalency with a 

precautionary default backstop, and the 

non–preferred alternative of coastwide 

measures. These were alternatives 1 and 

2, respectively, in the Council’s EA/RIR/ 

IRFA. These two alternatives were 

determined by the Council analyses to 

satisfy the 2009 conservation objectives 

for the recreational fishery, i.e., analysis 

indicated that implementation of either 

would constrain recreational landings 

within the 2009 recreational harvest 

limit. Therefore, either alternative 

recreational management system could 

be considered for implementation by 

NMFS, as the critical metric of 

satisfying the regulatory and statutory 

requirements would be met by either. 

Next, NMFS considered the 

recommendation of both the Council 

and Commission. Both groups 

recommended implementation of state– 

by–state conservation equivalency, with 

a precautionary default backstop. The 

recommendations of both groups were 

not unanimous: New York 

representatives dissented and voted 

against conservation equivalency in the 

Commission proceedings, and the 

Council representatives from New York 

likewise voted against continued 

recommendation of conservation 

equivalency in 2009. 

The conservation equivalency 

approach allows states some degree of 

flexibility in the specification of 

management measures, unlike the 

application of one set of uniform 

coastwide measures. The degree of 

flexibility available to states under 

conservation equivalency is constrained 

to a combined suite of minimum fish 

size, possession limit, and fishing 

season that will achieve the required 

percent reduction required for 2009 (i.e., 

achieve the conservation objectives). 

This provides the opportunity for states 

to construct measures that achieve the 

conservation objectives while providing 

a state–specific set of measures in lieu 

of the one–size–fits–all coastwide 

measure. States that fail to provide 

measures, or whose measures do not 

achieve the required reduction, are 

assigned the more restrictive 

precautionary default measures. For 

2009, the Commission required that 

states obligated to reduce their 2009 

landings under the conservation 

equivalency program do so by 

manipulating the fishing season through 

either periodic fishery closures or 

shortened overall fishing seasons. 

Specifically, the Commission required 

that at least 50 percent of any required 

reduction in landings was to occur as 

the result of season manipulation, with 

the remainder of any reduction achieved 

through modification to minimum fish 

size and/or possession limits. This 

30010 Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations 

recommendation follows advice 

provided by the Commission’s 

Technical Committee and Council’s 

Summer Flounder Monitoring 

Committee that modification to fishing 

season is a more effective means of 

ensuring landings reduction than are 

either changes to minium fish size or 

possession limit. 

At this time, it is not possible to 

determine the precise economic impact 

on small entities under conservation 

equivalency. The specific measures 

adopted for each state were only made 

available to NMFS from the Commission 

on May 7, 2009, and were unavailable 

for analysis during this rulemaking. 

Because the recreational fisheries in 

many states will have begun by the time 

this rule is effective, NMFS has elected 

to forego quantitative analysis of the 

specific conservation equivalency 

measures as implemented by the 

individual states, as the need to have 

measures in place in a timely fashion 

outweighs the benefits of delaying 

publication of this rule to complete 

further analysis. However, economic 

impact is likely to be proportional to the 

level of landings reductions required for 

each individual state. As such, the 

greater the percent reduction required 

for states in 2009 (Table 4), the greater 

the potential for higher economic 

impacts on small entities in comparison 

to coastwide measures dependent on the 

configuration of management measures 

ultimately selected. 

TABLE 4. 2009 STATE–BY–STATE PERCENT SUMMER FLOUNDER RECREATIONAL FISHERY LANDINGS REDUCTION

REQUIRED UNDER FRAMEWORK ADJUSTMENT 2 CONSERVATION EQUIVALENCY PROGRAM.1

State MD RI CT NY NJ DE MD VA NC 

Percent Required Reduction 24 42 35 39 7 0 51 0 0 

1Based on a 70.4–percent reduction from 1998 landings and a 12.0–percent reduction from 2008 landings. 

For NMFS to disapprove the Council’s 

recommendation for conservation 

equivalency and substitute coastwide 

management measures, NMFS must 

reasonably demonstrate that the 

recommended measures are either 

inconsistent with applicable law or 

demonstrate that the conservation 

objectives of the FMP will not be 

achieved by implementing conservation 

equivalency. NMFS does not find the 

Council and Commission’s 

recommendation to be inconsistent with 

the implementing regulations of the 

FMP found at § 648.100 or the 

Magnuson–Stevens Act. Furthermore, 

NMFS finds that the Commission 

requirement to manipulate fishing 

seasons for at least half of the state’s 

2009 reductions is a novel, continued 

demonstration to try and improve the 

performance of conservation 

equivalency. In 2008, the Commission 

implemented an additional performance 

based adjustment that further increased 

several state’s required reductions for 

the year. This performance–based 

adjustment did not prevent the 2008 

recreational harvest limit from being 

exceeded. Accordingly, the Commission 

has required a different approach for 

2009, with the expectation that it will be 

more effective than the system in place 

for 2008. 

The use of coastwide management 

measures was considered by NMFS. In 

fact, as commenters stated in response 

to the proposed rule, NMFS had 

previously advocated for a coastwide 

approach in the early stages of past 

years’ recreational fishery management 

measures development. The economic 

impacts on small entities under the 

coastwide measures management 

system would vary in comparison to the 

conservation equivalency system 

dependent on the specific state wherein 

the small entities operate. In the 

Council’s provided analysis, closed 

seasons typically result in a higher 

economic impact to small entities than 

do increases in minimum fish sizes or 

reduction in possession limits. The 

reason for this is that angler success 

begins to decline at higher minimum 

fish size and higher possession limits, 

yielding lower return on the 

effectiveness of implementing such 

measures. Closed seasons, however, are 

unmistakable in their effectiveness as 

they permit no harvest irrespective of 

fish size or possession limit, provided 

there are no compliance issues. Closed 

seasons also are typically more easily 

enforceable. The interplay between the 

three management measures and the 

inability to quantitatively assess the 

impacts of the state’s implemented 

conservation equivalency measures 

make definitive statements regarding 

impacts difficult to provide. Both 

fishery independent and dependent data 

suggest that larger summer flounder are 

less common in the southern portion of 

the management range; therefore, 

implementation of coastwide measures 

may have a more profound economic 

impact on small entities operating in the 

southern portion of the management 

area if the minimum fish size is set 

larger than fish that are typically 

available in southern states. 

Conservation equivalency is generally 

expected to mitigate the economic 

impact in states with lower required 

percent reductions for 2009 compared to 

the 12–percent coastwide reduction that 

would be necessary were coastwide 

measures employed. In those states, 

management measures can be tailored to 

suit the expressed needs of both small 

entities and other recreational fishery 

participants while achieving the 

required conservation equivalency 

percent reduction. Conversely, 

coastwide measures may yield lower 

economic impacts for states with the 

percent reductions greater than the total 

coastwide level of reduction required 

for 2009 by permitting smaller 

minimum fish sizes paired with slightly 

lower possession limits, and comparable 

fishing seasons than would be required 

to be implemented under conservation 

equivalency. 

NMFS is implementing the Council 

and Commission’s recommended state– 

by–state conservation equivalency 

measures for the reasons previously 

stated: (1) The state–by–state 

conservation equivalency management 

system has again been modified, by the 

Commission, from the previously 

utilized methodology that reduced the 

magnitude of exceeding the recreational 

harvest limit in 2008 but ultimately did 

not ensure landings remained below the 

desired level; and (2) NMFS finds no 

compelling reason to disapprove the 

Council and Commission’s 

recommended 2009 management 

system, as the analysis provided by the 

Commission’s Technical Committee 

demonstrates that the improved 

conservation equivalency system will 

provide a high likelihood that the 2009 

recreational harvest limit will not be 

exceeded. To further ensure that the 

2009 recreational harvest limit is not 

exceeded, NMFS is prepared to close 

the EEZ during the fishing season if 

harvest projections indicate that the 

2009 recreational harvest limit may be 

exceeded before the end of the calendar 

year. 

Black sea bass alternatives. Similar to 

summer flounder, the options available 

Federal Register / Vol. 74, No. 120 / Wednesday, June 24, 2009 / Rules and Regulations 30011 

for black sea bass recreational 

management measures are constrained 

to selecting a suite of minimum fish 

size, possession limit, and fishing 

season measures that achieves the 

annual conservation objectives. In this 

case, the conservation objective is a 

level of recreational black sea bass 

landings that is below the 2009 

recreational harvest level. Therefore, the 

selection of measures available to 

mitigate the economic impact on small 

entities is constrained to those measures 

that will permit the maximum amount 

of recreational landings while achieving 

the specified conservation objectives for 

the fishing season. 

For 2009, a coastwide reduction in 

black sea bass landings of 10.0 percent 

is necessary to achieve the conservation 

objective. The Council’s EA/RIR/IRFA 

evaluated alternatives 1 and 3 for black 

sea bass, which would achieve this 

objective. The Council recommended, 

and NMFS is implementing, Alternative 

1, consisting of a half–inch increase in 

minimum fish size from 12.0 to 12.5 

inches (30.48 cm to 31.75 cm) and 

maintenance of the status quo 25–fish 

possession limit and year–round season 

(January 1–December 31, 2009), because 

it is projected to achieve a 12.0–percent 

reduction in black sea bass recreational 

landings in 2009. Alternative 3, 

consisting of a 12.0–inch (30.48–cm) 

minimum fish size, a 25–fish possession 

limit, and fishing seasons January 1 

through May 15 and June 15 through 

December 31, 2009, is projected to 

reduce landings by 13.3 percent from 

2008 levels. The measures of this 

alternative are more restrictive than 

necessary to achieve the conservation 

objectives for 2009 and were not 

recommended by either the Council or 

Commission. Therefore, this rule 

implements the increased minimum fish 

size contained in Alternative 1, as 

recommended by both the Council and 

Commission. 

Small Entity Compliance Guide 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. As part of this 

rulemaking process, a letter to permit 

holders that also serves as the small 

entity compliance guide was prepared 

and will be sent to all holders of Federal 

party/charter permits issued for the 

summer flounder, scup, and black sea 

bass fisheries. In addition, copies of this 

final rule and the small entity 

compliance guide are available from 

NMFS (see ADDRESSES) and at the 

following website: http:// 

www.nero.noaa.gov. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: June 18, 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 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 of 

the introductory text 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 inches 

(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 

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. E9–14877 Filed 6–23–09; 8:45 am] 

BILLING CODE 3510–22–S