        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No.040326103-4103-01;  I.D. 031504A]
        RIN 0648-AQ82
        Fisheries of the Northeastern United States; Recreational Measures for  the  Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing Year 2004

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS  proposes  recreational measures for the 2004 summer flounder, scup, and black sea bass fisheries. The implementing regulations for these fisheries require NMFS to publish recreational measures  for the upcoming fishing year and to provide an  opportunity  for public comment. The intent of these measures is to prevent overfishing of the summer flounder, scup, and black sea bass resources.

          DATES:
          Comments  must  be  received  on or before April 29, 2004.

          ADDRESSES:

           Comments   on  the  proposed   recreational measures  should  be  sent to Patricia A. Kurkul,  Regional  Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark  the  outside  of  the   envelope   “Comments   on  Recreational Specifications.”  Comments may also be submitted via facsimile  (fax) to  978-281-9135, and via e-mail to the following address: FSBREC04@noaa.gov.  Comments  may also submitted electronically  through the Federal e-Rulemaking portal: http://www.regulations.gov.

          Copies of supporting documents used by the Summer Flounder, Scup, and Black Sea Bass Monitoring Committees and of the Environmental Assessment, Regulatory Impact Review, 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 Street, Dover, DE  19901-6790, and are accessible via the Internet at http://www.nero.noaa.gov/ro/doc/com.htm.

          FOR FURTHER INFORMATION CONTACT:

          Sarah McLaughlin, Fishery  Policy  Analyst,  (978)  281-9279, fax (978) 281-9135, e-mail sarah.mclaughlin@noaa.gov.

        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 management units specified in the Fishery Management Plan (FMP)  for the  Summer Flounder, Scup, and Black Sea Bass Fisheries 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 FMP and its implementing regulations, which are found at 50 CFR part 648, subparts A, G  (summer  flounder),  H  (scup), and I (black sea bass), describe the process for specifying annual recreational measures that apply in the Exclusive Economic Zone (EEZ).  The states  manage  these  fisheries within  3  miles  of their coasts, under the Commission's Interstate Summer Flounder, Scup, and  Black  Sea  Bass  FMP.  The Federal regulations govern vessels  fishing  in  the  EEZ,  as well as vessels  possessing  a  Federal fisheries permit, regardless of where they fish.

        The Council's FMP established Monitoring Committees (Committees) for the three fisheries, consisting of representatives  from  the  Commission,  the Mid-Atlantic,  New England, and South Atlantic Councils, 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.
        Final quota specifications for the 2004 summer flounder, scup, and black sea bass fisheries  were published on January 14, 2004 (69 FR 2074).  These specifications were determined  to  be  consistent  with  the  2004  target fishing  mortality  rate  (F) (for summer flounder) and target exploitation rates  (for scup and black sea  bass).   The  2004  coastwide  recreational harvest  limits  are  11.21 million lb (5,085 mt) for summer flounder, 3.99 million lb (1,810 mt) for  scup,  and  4.01 million lb (1,819 mt) for black sea  bass.   The  specifications did not establish  recreational  measures, since final recreational  catch  data  for 2003 were not available when the Council made its recreational harvest limit recommendation to NMFS.
        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.
        Summer Flounder
        Recreational landings for 2003 were estimated  to  be  11.565 million lb (5,246 mt), 25 percent greater than the 2003 recreational harvest limit (by weight).  However, all states are estimated to be below their  2003 targets when  their  allocations are converted to number of fish using the  average weight of summer  flounder  harvested  during  2002  and  2003.   The  only exceptions  are  NY  (110  percent  over),  NJ  (9 percent over), and CT (6 percent over).  The 2004 coastwide harvest limit is 11.21 million lb (5,085 mt), a 21-percent increase over the 2003 harvest limit, and 3 percent less than the estimated 2003 landings.  Assuming  the same level of fishing effort  in  2004  as  in  2003,  a  3-percent reduction  in  landings coastwide would be required for summer flounder.  As described below, under conservation equivalency, as recommended by the Council, NY and NJ would be required to reduce summer flounder landings  in  2004,  by 48.5 percent and 1.3 percent, respectively.
        NMFS implemented Framework Adjustment 2 to the FMP 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), 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 recreational  harvest limit, if implemented by all of the states.  Conservation equivalency  was  approved for the 2003 summer flounder recreational fishery.
        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.   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.  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 Council's Summer Flounder Technical  Committee, or that submits  measures  that  are determined by the Board not to achieve the required reduction.  The precautionary  default measures are defined as the measures that would achieve at least the  overall required reduction in landings for each state.
        In December 2003, the Council and Board voted  to recommend conservation equivalency   to  achieve  the  2004  recreational  harvest   limit.    The Commission's conservation  equivalency guidelines require each state, using state-specific  equivalency  tables,   to   determine   and   implement  an appropriate  possession  limit,  minimum  fish  size, and closed season  to achieve   the   landings   reduction   necessary  for  each   state.    The state-specific tables are adjusted to account for the past effectiveness of the regulations in each state.  Landings projections for 2003 indicate that NY and NJ will be the only states required  to  reduce  recreational summer flounder  landings in 2004, by 48.5 percent and 1.3 percent,  respectively. States other  than  NY  and  NJ  (from  ME  to  NC)  would  not require any reductions  in  recreational  summer  flounder  landings  if their  current regulations are maintained.
        The  Board required that each state submit its conservation  equivalency proposal  to  the Commission by February 17, 2004.  The Commission's Summer Flounder 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 has invited public participation in its review process by holding public meetings and offering the public the opportunity to comment on the state  proposals.   The  Board met  on March 11, 2004, and approved all of the state management proposals. For some  states,  the  Board  approved  multiple management options.  Once these  states  select  and submit their final  summer  flounder  management measures to the Commission,  the  Commission officially will notify NMFS as to which state proposals have been  approved  or disapproved.  NMFS retains the  final  authority  to either approve or disapprove  using  conservation equivalency  in place of  the  coastwide  measures  and  will  publish  its determination  in  the  final  rule,  establishing  the  2004  recreational measures for these fisheries.

        States  that  do not submit conservation equivalency proposals,  or  for which proposals were  disapproved  by  the Commission, would 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 coastwide measures recommended by the Council and Board consist of a 17-inch (43.2-cm) minimum fish size, a possession limit of four fish  per  person,  and no closed season.  In this action, NMFS proposes to maintain the coastwide  measures  in the EEZ.  The coastwide measures would reduce recreational landings by 11  percent,  based  on 2001 data, assuming the  coastwide  regulations are implemented by all states.   State-specific reductions in landings  would  range  from 0 percent in MD to 63 percent in NC.   These  measures  would  be  waived  if  conservation  equivalency  is approved.
        The precautionary default measures specified  by  the  Council and Board are  the  same  as  specified  for  2003  and  consist  of an 18-inch (45.7-cm)  minimum  fish  size, a possession limit of  one  fish  per person, and no closed season.
        Scup
        For 2004, the Total Allowable  Landings  of  scup  was maintained at the 2003 level.  As a result of a slightly larger research set-aside amount for 2004  than  for  2003,  the 2004 scup recreational harvest  limit  is  3.99 million lb (1,812 mt), a  less  than 1-percent decrease from the 2003 harvest limit of 4.01 million lb (1,819 mt).  Recreational landings in 2003 were estimated to be 9.6 million  lb  (4,354  mt), more than twice the 2003 harvest limit.  To achieve the 2004 target, a 58-percent reduction in landings relative to landings in 2003 is necessary.
        The  2004  scup  recreational  fishery  will be managed  under  separate regulations for state and Federal waters; the  Federal measures would apply to party/charter boats with Federal permits and  other  vessels  subject to the  possession limit that fish in the EEZ.  In Federal waters, to  achieve the 2004 target, the Council recommended coastwide management measures of a 10-inch (25.4-cm) minimum fish size, a 50-fish possession limit,  and  open  seasons  of January 1 through February 29, and August 15 through November 30.  However,  additional  analysis  indicates  that these recommended  measures  would  achieve only a 48-percent reduction  in landings relative to landings in  2003.   In  order to achieve the required 58-percent reduction, NMFS proposes to implement coastwide management measures  of  a  10-inch  (25.4-cm)  minimum   fish   size,   a 50-fish  possession  limit, and open seasons of January 1 through the last day of February, and September 8 through November 30.  For comparative purposes, the current (status  quo)  scup  recreational measures in the EEZ are  a 10-inch (25.4-cm) minimum  fish  size,  a  50-fish possession  limit,  and  open seasons of January 1 through February 28, and July 1 through November 30.
        As in the past 2 years, the scup fishery in state waters will be managed under a regional conservation  equivalency  system  developed  through  the Commission.   Addendum  XI to the Interstate FMP (Addendum XI), approved by the Board at the January 2004 Council/Commission meeting, requires that the states of MA through NY each  develop state-specific management measures to reduce their landings by 57 percent  relative  to  their  landings in 2003, through a combination of minimum fish size, possession limits, and seasonal closures.  In February 2004, the Commission revised the required  reduction of landings for MA through NY to 53.2 percent, based on Marine Recreational Fisheries  Statistical  Survey  (MRFSS) landings estimates through December 2003.  At the March 11, 2004, meeting,  the  Board  approved the status quo measures  for  NJ, i.e., a 10-inch (25.4-cm)  minimum  size,  a 50-fish possession  limit,  and  an  open  season  of  July 1 through December 31.  Due to low scup landings in the southern states,  DE  through NC,  the  Board  approved  the retention of status quo management measures, i.e., an 8-inch (20.3-cm)  minimum  fish  size, a 50-fish possession limit, and no closed season.  The northern states  are  expected to  submit   management measures to the Commission for technical review  in the next few weeks.   Because  the  Federal FMP does not contain provisions for  conservation  equivalency,  and states  may  adopt  their  own  unique measures  under  Addendum  XI,  it  is   likely   that  state  and  Federal recreational scup measures will differ for the 2004 season.
        Black Sea Bass
        The 2004 black sea bass recreational harvest limit  is  4.01  million lb (1,819  mt),  a  17-percent  increase  from  the  2003 harvest limit. Recreational landings in 2003 were estimated to be 3.995  million lb (1,812 mt), 16 percent over the 2003 target.  Assuming the same level  of  fishing effort in 2004, no coastwide reduction in landings is required.
        Currently,  the  Federal  coastwide black sea bass recreational measures are:  a 25-fish per person  possession  limit;  a  minimum size of 12 inches  (30.5 cm); and open seasons of January 1 through September  1,  and September  16  through  November  30.  State regulations vary.  Although no reduction in landings is required relative  to  2003  landings, the Council and Board decided to take a precautionary approach to maintain  the  status quo  measures.  The Council recommended open seasons from January 1 through September  7,  and  September  22  through November 30.  These measures are expected to constrain recreational black  sea  bass  landings  to  the 2004 target.
        Classification
        This  proposed  rule  has  been  determined  to  be  not significant for purposes of Executive Order 12866.
        The  Council  prepared an IRFA that 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  in the preamble to this proposed rule. This proposed rule does not duplicate,  overlap,  or  conflict  with  other Federal  rules.   A copy of the complete IRFA is available from the Council (see ADDRESSES).  A summary of the analysis follows.
        The proposed action  could affect any recreational angler who fishes for summer flounder, scup, 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  business  entities  for  the  purposes of the Regulatory Flexibility Analysis (RFA), i.e., businesses with  receipts  (gross  revenues) of up to $3.5 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.

        In the EA/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   17-inch (43.2-cm)  minimum fish size, a 4-fish possession limit, and no closed season, i.e.,  the measure that would be implemented if conservation equivalency  is  not implemented  in  the  final  rule;  (2)  for  scup,  a 10-inch (25.4-cm) minimum fish size, a 50-fish possession limit, and open seasons  of  January  1  through  February  28,  and July 1 through   November  30;  and  (3)  for  black  sea  bass,  a  12-inch (30.5-cm)  minimum size, a 25-fish per person possession limit, and an open season  of  January  1  through  September  1, and September 16 through November 30.
        The  implications  of  the  no-action alternative are substantial.   For summer flounder, reductions in landings would range from 0 percent in MD to 63 percent in NC.  The no-action  alternative  (i.e.,  maintenance  of  the regulations  as  codified)  would  not  be restrictive enough to effect the recommended 58-percent reduction in  scup  landings relative to 2003, but would constrain black sea bass landings to the  harvest limit for 2004. In  consideration  of the recreational harvest limits established  for  the 2004 fishing year, taking  no  action  in  the  summer  flounder  and  scup fisheries  would  be  inconsistent with the goals and objectives of the FMP and  its  implementing  regulations,   and,  because  it  could  result  in overfishing of the scup fishery, also would  be  inconsistent with National Standard  1  of  the  Magnuson-Stevens  Act.   Therefore,   the   no-action alternative  was  not  considered  to  be  an acceptable alternative to the preferred action.
        The Council estimated that the proposed measures could affect any of the 775 vessels possessing a Federal charter/party  permit for summer flounder, scup,  and/or  black  sea  bass  in 2002, the most recent  year  for  which complete permit data are available.   Only  327  of  these vessels reported active  participation  in  the recreational summer flounder,  scup,  and/or black sea bass fisheries in 2002.
        Effects of the various management  measures  were  analyzed by employing quantitative approaches, to the extent possible.  Where  quantitative  data were  not  available, the Council conducted qualitative analyses.  Although NMFS's Regulatory  Flexibility Act 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  data  are  not available for these fisheries.  Without  reliable cost 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.
        Assessments   of   potential  changes  in  gross  revenues  for  all  18 combinations of alternatives  proposed  in  this  action were conducted for federally permitted party/charter vessels in each state  in  the  Northeast Region  (NE).   Management  measures  proposed  under  the  summer flounder conservation  equivalency  alternative  have yet to be adopted;  therefore, potential  losses  under  this  alternative  could   not   be  analyzed  in conjunction with 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 were examined by first  estimating  the  number  of angler trips aboard  party/charter  vessels in each state in 2003 that would  have  been affected by the proposed  2004 management measures.  All 2003 party/charter fishing  trips  that would have  been  constrained  by  the  proposed  2004 measures in each state were considered to be affected trips.
        There is very  little  information available to estimate empirically how sensitive  the  affected party/charter  vessel  anglers  might  be  to  the proposed fishing  regulations,  with  the exception of states for which the contribution of summer flounder, scup,  and  black  sea  bass  to the total catch by party/charter vessels is negligible (ME and NH) and DE,  for which results  are  suppressed  for  confidentiality  purposes.   If the proposed measures  discourage  trip-taking  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:     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 NE (ME through NC) in 2004.
        Total economic losses  to  party/charter  vessels were then estimated by multiplying the number of potentially affected trips in each state in 2004, under the two hypothetical scenarios, by the estimated  average  access fee paid  by  party/charter anglers in the NE in 2003.  Finally, total economic losses were  divided  by  the  number  of federally permitted party/charter vessels that participated in the summer  flounder,  scup, and/or, black sea bass fisheries in 2002 in each state (according to homeport state in the NE database) to obtain an estimate of the average projected gross revenue loss per party/charter vessel in 2004.
        The MRFSS data indicate that anglers fished 34.66  million  days in 2003 in  the NE.  In the NE, party/charter anglers comprised about 5 percent  of the angler  fishing  days.   The  number of trips in each state ranged from approximately 14,000 in ME to approximately  457,000  in NJ.  The number of trips  that  targeted  summer  flounder, scup, and/or black  sea  bass  was identified, as appropriate, for  each measure, and the number of trips that would be impacted by the proposed  measures  was  estimated.   Finally, the revenue  impacts  were  estimated  by  calculating the average fee paid  by anglers on party/charter vessels in the NE in 2003 ($37.70 per angler), and the revenue impacts on individual vessels  were  estimated.   The  analysis assumed  that  angler  effort  and  catch  rates in 2004 will be similar to 2003.

        The Council noted that this method is likely to result in overestimation of the potential revenue losses that would result  from  implementation  of the  proposed  coastwide  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 (approximately 90 percent of summer flounder  and  scup  landings  in  2002),  it  is probable that some party/charter  vessels  fish only in state waters and, thus,  do  not  hold Federal permits for these  fisheries.   Third, vessels that hold only state permits   likely  will  be  fishing  under  different,   potentially   less restrictive,  recreational  measures  for summer flounder and scup in state waters under the Commission's conservation equivalency programs.
        Impacts of Summer Flounder Alternatives
        The proposed action for the summer flounder  recreational  fishery would limit coastwide catch to 11.21 million lb (5,085 mt) by either  waiving the permit  condition  at  § 648.4(b)  and  requiring Federal permit holders to comply with management measures set by the  states (conservation equivalency) or imposing coastwide Federal measures throughout the EEZ.
        The  impact  of  the  proposed summer flounder conservation  equivalency alternative (in Alternative  1) among states is likely to be similar to the level of landings reductions that are required of each state.  As indicated above, only NY and NJ would be  required to reduce summer flounder landings in 2004, relative to their 2003 landings  (by 48.5 percent and 1.3 percent, respectively).  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 more rational for the states to  adopt conservation  equivalent  measures  that  result  in fewer adverse economic impacts  than  to  adopt  the  much more restrictive precautionary  default measures (i.e., only one fish measuring at least 18 inches (45.7 cm)).
        The impacts of the non-preferred  summer  flounder coastwide alternative (in  Alternative  2),  i.e., a 17-inch (43.2-cm)  minimum  fish size, a four-fish possession  limit,  and  no closed season, were evaluated using the quantitative method described above.  Impacted trips were defined as individual angler trips taken aboard party/charter  vessels in 2003 that landed at least one summer flounder smaller than 17 inches  (43.2  cm),  or that  landed  more  than four summer flounder.  The analysis concluded that the measures would affect  1.1 percent of the party/charter vessel trips in the NE.
        The state-specific landings reductions associated with the precautionary default measures, consisting  of  an  18-inch (45.7-cm) minimum fish size, a one-fish possession limit,  and no closed season, would reduce state specific landings by a range of 41 percent  (DE)  to 88 percent (NC), relative to landings in these states in 2003.  The state-specific  landings reductions   associated   with   the  precautionary  default  measures  are substantially higher than the reductions  that  would  be implemented using conservation equivalency.  As such, it is expected that  states  will avoid the  impacts of precautionary default measures by establishing conservation equivalent  management  measures.   Therefore,  the  precautionary  default provision that is included in the conservation equivalency proposal was not analyzed as a separate provision.
        Impacts of Scup Alternatives
        The  proposed  action  for  scup  would limit coastwide landings to 3.99 million lb (1,812 mt) and reduce landings  by  at least 58 percent compared to 2003.
        For the preferred scup alternative (in Alternative  1),  impacted  trips were  defined as individual angler trips taken aboard party/charter vessels in 2003  that landed at least 1 scup smaller than 10 inches (25.4 cm), that landed more  than  50  scup,  or  that  landed  at  least 1 scup during the proposed  closed  seasons  of  March 1 through August 14,  and  December  1 through December 31.  The analysis concluded that the measures would affect 2.4 percent of party/charter vessel trips in the NE.
        For the scup no action alternative  (in  Alternative  2), impacted trips were defined as individual angler trips taken aboard party/charter  vessels in 2003 that landed at least 1 scup smaller than 10 inches (25.4 cm),  that landed more than 50 scup, or that landed at least 1 scup during the periods of  March  1  through  June  30,  and  December 1 through December 31.  The analysis  concluded  that  the  measures  would   affect   1.2  percent  of party/charter vessel trips in the NE.
        For the scup measures considered in Alternative 3, impacted  trips  were defined  as  individual  angler trips taken aboard party/charter vessels in 2003 that landed at least  1  scup  smaller  than 10 inches (25.4 cm), that landed more than 50 scup, or that landed at least  1 scup during the period March  1  through  September 7, and December 1 through  December  31.   The analysis concluded that  the  measures in this alternative would affect 3.2 percent of party/charter vessel trips in the NE.
        Impacts of Black Sea Bass Alternatives
        The proposed action for black sea bass would limit coastwide landings to 4.01 million lb (1,819 mt).  For  the  preferred black sea bass alternative (in Alternative 1), impacted trips were  defined as individual angler trips taken aboard party/charter vessels in 2003 that landed at least 1 black sea bass smaller than 12 inches (30.5 cm), that  landed  more than 25 black sea bass, or that landed at least 1 black sea bass during  the  proposed closed seasons  of  September  8  through  September  21,  and  December 1 through December  31.  The analysis concluded that the measures would  affect  less than 1 percent of party/charter vessel trips in the NE.
        For the  non-preferred black sea bass measures considered in Alternative 2, impacted trips  were  defined  as  individual  angler trips taken aboard party/charter vessels in 2003 that landed at least 1 black sea bass smaller than 11.5 inches (29.2 cm), that landed more than 25  black  sea  bass,  or that  landed  at  least  1  black sea bass during the period of September 2 through September 15, and December  1  through  December  31.  The analysis concluded that the proposed alternative would affect less than 1 percent of party/charter vessel trips in the NE.
        For the non-preferred black sea bass measures considered  in Alternative 3,  impacted  trips  were  defined as individual angler trips taken  aboard party/charter vessels in 2003 that landed at least 1 black sea bass smaller than 12 inches (30.5 cm) or  that  landed more than 20 black sea bass.  The analysis  concluded  that  the  measures   would   affect  1.4  percent  of party/charter trips.
        Combined  Impacts  of  Summer  Flounder,  Scup,  and  Black  Sea  Bass Alternatives
        Since the management measures under summer flounder Alternative 1 (i.e., conservation  equivalency)  have yet to be adopted, the effort  effects  of this alternative could not be analyzed in conjunction with the alternatives proposed for scup and black sea  bass.   The percent of total party/charter vessel trips in the NE that were estimated  to  be  affected  by  the other alternatives ranged from a low of 3 percent for the combination of measures proposed under summer flounder Alternative 2, scup Alternative 2, and black sea  bass  Alternative  2  to  10.5  percent  for the precautionary default measures for summer flounder combined with the measures proposed under scup Alternative 3 and black sea bass Alternative 3.

        Potential revenue losses in 2004 could differ  for party/charter vessels that land more than one of the regulated species.   The  cumulative maximum gross revenue loss per vessel varies by the combination of permits held and by  state.   All  18  potential  combinations  of  management  alternatives proposed  for  summer  flounder, scup, and black sea bass are predicted  to affect party/charter vessel  revenues  to  some  extent  in  9 of the 11 NE coastal states.  Angler effort aboard party/charter vessels in  2004  in ME and  NH  is not predicted to be constrained (i.e, affected) by the proposed measures, thus party/charter revenues for vessels operating in these states are not estimated  to  be impacted.  In addition, although potential losses were estimated for party/charter vessels operating out of DE, these results are suppressed for confidentiality  purposes.  Average party/charter losses for  federally permitted vessels operating  in  the  remaining  states  are estimated  to vary considerably across the 18 combinations of alternatives. For instance,  in  CT,  average losses are predicted to range from only $13 per vessel under the combined  effects  of  summer  flounder Alternative 2, scup Alternative 1, and black sea bass Alternative 1,  to  $6,456  for  the combination  of  alternatives  proposed  for summer flounder Alternative 2, scup  Alternative  3,  and  black  sea  bass  Alternative   1  (assuming  a 25-percent reduction in affected effort).
        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:      April     8,     2004.
          William      T. Hogarth,
          Assistant   Administrator   for  Fisheries,  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  § 648.122, paragraph (g) is revised to read as follows:

            § 648.122
            Time   and   area restrictions.

            (g) Time   restrictions.Vessels   that   are   not   eligible   for  a  moratorium   permit   under § 648.4(a)(6), and fishermen subject  to  the  possession limit, may  not  possess  scup,  except  from  January 1 through the last  day  of February, and from September 8 through November  30.   This time period may be       adjusted       pursuant       to       the      procedures      in § 648.120.

          3.  Section  648.142  is  revised to read as follows:

            § 648.142
            Time restrictions.
            Vessels that are not eligible for a moratorium  permit  under § 648.4(a)(7), and fishermen subject  to  the possession limit, may not possess black sea bass, except from January 1 through  September 7, and  September  22  through  November 30. This time period may be adjusted pursuant to the procedures in § 648.140.

      [FR Doc. 04-8488 Filed 4-13-04; 8:45 am]
      BILLING CODE 3510-22-S


        FEDERAL MARITIME COMMISSION
        46 CFR Part 520
        [Docket No. 21-03]
        RIN 3072-AC86
        Carrier Automated Tariffs

          AGENCY:
          Federal Maritime Commission.

          ACTION:
          Advance notice of proposed rulemaking.

          SUMMARY:

          The Federal Maritime Commission (Commission) has identified inconsistencies in the manner in which different carriers are interpreting and applying certain aspects of the Commission's rules. This Advance Notice of Proposed Rulemaking (ANPRM) will facilitate a fuller understanding of these issues prior to the Commission potentially proposing regulatory changes to its tariff regulations. The Commission observes that carriers are charging widely varying fees and imposing varying minimum requirements for access to common carrier tariffs. The Commission seeks information regarding the impact of such fees and minimum requirements on public access to common carrier rules, rates, practices and charges in published tariffs and whether existing fees or requirements are unreasonable. Additionally, certain non-vessel-operating common carriers (NVOCCs) are applying what are commonly known as “pass-through charges” inconsistently under common carrier tariffs, and the Commission seeks to gain a broader understanding and information from industry stakeholders, including NVOCCs and vessel-operating common carriers (VOCCs).

          DATES:
          Submit comments on or before June 7, 2021.

          ADDRESSES:
          You may submit comments, identified by Docket No. 21-03, by the following methods:
          • Email: secretary@fmc.gov. For comments, include in the subject line: “Docket No. 21-03, Comments on Carrier Automated Tariffs Rulemaking.” Comments should be attached to the email as a Microsoft Word or text-searchable PDF document.

            Instructions: For detailed instructions on submitting comments, including requesting confidential treatment of comments, and additional information on the rulemaking process, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document. Note that all comments received will be posted without change to the Commission's website unless the commenter has requested confidential treatment.

            Docket: For access to the docket to read background documents or comments received, go to the Commission's Electronic Reading Room at: https://www2.fmc.gov/readingroom/proceeding/21-03/.

          FOR FURTHER INFORMATION CONTACT:

          Rachel E. Dickon, Secretary; Phone: (202) 523-5725; Email: secretary@fmc.gov.

        SUPPLEMENTARY INFORMATION:

        I. Background

        The Shipping Act of 1984, as amended (46 U.S.C. 40101-41309) (Shipping Act or Act) requires that common carriers (i.e., VOCCs and NVOCCs) and conferences keep open for public inspection in an automated tariff system, their tariffs showing all rates, charges, classifications, rules and practices, and to make those tariffs available electronically to any person without time, quantity, or other limitation. 46 U.S.C. 40501(c). The Act charges the Commission with establishing requirements for the accuracy and accessibility of all private automated systems used to provide tariff information to the public. § 40501(g)(1). The Act also provides that a reasonable fee may be charged for such access, except that Federal agencies may not be charged a fee. § 40501(c).
        Pursuant to the Commission's Plan for Regulatory Review of Existing FMC Rules, the Commission's regulations at 46 CFR part 520, Carrier Automated Tariffs, are currently under review.1
           As part of this initiative, two issues have been identified that would benefit from receiving clarifying information from industry participants and other supply chain stakeholders. Accordingly, the Commission is seeking comment regarding: (1) Tariff access fees and minimum access requirements; and (2) pass-through charges prior to potentially moving forward with a proposed rulemaking.

            1 See Plan for Regulatory Review of Existing FMC Rules, updated November 23, 2020, at https://www.fmc.gov/wp-content/uploads/2020/11/RegulatoryReformPlan.pdf.

        II. Request for Comment
        A. Tariff Access Fees

        Before the passage of the Ocean Shipping Reform Act of 1998 (OSRA), which became effective May 1, 1999, carrier and conference tariffs were filed with the Commission through the Commission's Automated Tariff Filing and Information system. OSRA eliminated the requirement that tariffs be filed with the Commission, and instead, directed carriers and conferences to publish tariffs in carrier automated tariff systems. The Commission promulgated implementing regulations reflecting this change effective May 1, 1999, in FMC Docket No. 98-29, Carrier Automated Tariff Systems.
          2

           Once carriers and conferences deployed their carrier automated tariff systems, the Commission began receiving informal complaints regarding certain tariff access fees and minimum subscription requirements that potential tariff users believed were excessive. As a result, on May 9, 2000, the Commission initiated FMC Docket No. 00-07, Advance Notice of Proposed Rulemaking Concerning Public Access Charges to Carrier Automated Tariffs and Tariff Systems Under the Ocean Shipping Reform Act of 1998, to determine whether certain tariff access charges and monthly subscription requirements might limit the public's ability to access tariffs and tariff systems, and sought public comment to address the reasonableness of tariff access charges. Based on an assessment of the comments received in response to Docket No. 00-07, the Commission determined that promulgating a proposed rule on tariff access charges and their reasonableness was not necessary. The Commission did, however, issue a Circular Letter to provide guidance to common carriers, conferences, and tariff publishers with respect to the issue of reasonable fees, and subsequently discontinued the proceeding.3
           In relevant part, Circular Letter No. 00-2 read:

            2 See Final Rule and Interim Final Rule, Carrier Automated Tariff Systems, 64 FR 11218 (March 8, 1999).

            3 See FMC Docket No. 00-07 (Proceeding Discontinued, July 11, 2001) at https://www2.fmc.gov/readingroom/proceeding/00-07/. See also Circular Letter No. 00-2, Charges for Access to Tariffs and Tariff Systems (October 6, 2000) at https://www.fmc.gov/about-the-fmc/circulars/.

          The Commission has not promulgated regulations governing tariff access charges. However, it appears that “a reasonable charge” for access should recover only costs and expenses incurred by carriers in making their tariffs accessible to the public, and should not recover the costs and expenses associated with:
          (1) Developing or publishing a tariff/essential terms publication;
          (2) Providing access to federal agencies;
          (3) Providing access to the publishing carrier's employees or agents or to a publishing conference's employees or its members' employees or agents; or
          (4) Developing any other function or service for possible use by a carrier's or conference's employees or agents, as the case may be.

        Any subscription fees assessed should also be consistent with these criteria.
        While the foregoing relates to the Commission's experience at the inception of carrier automated tariff systems in 1999, more recent experience indicates that some tariff access fees may be so high that they effectively prevent tariff users from reviewing certain carrier tariffs, particularly those with substantial minimum charges, such as $1,000 or $1,500.4

           This can be an issue, not only for shippers who primarily ship cargo under tariff rates, but also for shippers using service contracts. Once the shipper's minimum quantity commitment under the service contract has been fulfilled, the carrier often rates subsequent shipments under its tariff rates, For this reason, shippers may have a need to access tariffs to determine the applicable rate for their cargo once the volume commitment for their service contract has been fulfilled. The unimpeded access to tariffs is also imperative during periods of rate volatility, to ensure the shipper is aware of the most current applicable rates.

            4 Fee range based on information reported to Commission staff when contacted periodically by users for guidance and assistance with tariff access.

        The Commission notes, however, that many major VOCCs and NVOCCs that self-publish tariffs provide access free of charge. While for such carriers, it is customary to request a user to register for tariff access by providing contact information and creating a Login/Username and Password. Once this has been accomplished, free access has generally been granted. For those carriers that do not provide tariff access free of charge, access fees appear to vary widely, with some carriers charging what appear to be excessive fees. This may indicate that, contrary to guidance provided by the Commission in Circular Letter 00-2, some carriers are not relating charges only to the actual costs of providing public access to tariff systems.
        For the foregoing reasons, the Commission is concerned that the level of some tariff access fees may impair the public's ability to access the information in carrier tariffs. Accordingly, the Commission seeks responses to the following questions, as well as any additional information related to the public's experience with tariff access fees.

          1. Do you agree or disagree with the Commission's guidance found in Circular Letter 00-2, that “ ‘a reasonable charge' for access should recover only costs and expenses incurred by carriers in making their tariffs accessible to the public”? In your response, please provide examples of potential other costs that should be included or excluded in an access fee, and why.
          2. In your experience, do you believe the carriers you do business with are charging tariff access fees that only recover the costs and expenses incurred in making tariffs accessible to the public? If not, please provide examples where this may not be the case.
          3. Are you inhibited from accessing common carrier tariffs because of tariff access fees or tariff access processes?

        In your response, where possible, please include the carrier name, tariff number and title, tariff publisher (if applicable), and access fees for any tariffs you believe have excessive fees or unreasonable access requirements.
        B. Pass-Through Charges

          The Commission has become aware of disparate industry interpretations of the types of charges that may be “passed through” to shippers without markup (not to exceed the charge the common carrier incurs) in connection with shipments moving under common carrier tariffs, particularly by NVOCCs. While the Commission's tariff regulations do not define so called “pass-through charges,” such charges are referenced in 46 CFR 520.8, Effective Dates, which specifies the types of tariff amendments that may become effective immediately upon tariff publication. More specifically, § 520.8(b)(4) provides that amendments may take effect upon publication that make changes in charges for terminal services, canal tolls, additional charges, or other provisions not under the control of the common carriers or conferences, which merely acts as a collection agent for such charges and the agency making such changes does so without notifying the tariff owner.

        Historically, we understand VOCCs have relied on this provision to make changes to port charges, governmental charges, and other similar charges beyond their control effective upon publication in their tariffs. In contrast, NVOCCs have varied widely in the types of charges they have attempted to charge to shippers pursuant to § 520.8(b)(4) when applying tariff rates, particularly with respect to VOCC charges and surcharges. The Commission has encountered narrow interpretations by NVOCCs of the types of VOCC charges that can be passed through without markup, but more commonly, broader interpretations by NVOCCs have been seen, including the pass-through of all VOCC charges and surcharges, as well as VOCC General Rate Increases (GRIs).
        In this regard, some NVOCCs appear to be conflating the Commission's tariff regulations with the Commission's 2018 rulemaking that expanded the flexibility of NVOCC Negotiated Rate Arrangements (NRAs) and NVOCC Service Arrangements (NSAs).5
           NVOCCs using NRAs are exempt from the general tariff publication requirements in 46 U.S.C. 40501 and many of the corresponding regulations in 46 CFR part 520. 46 CFR 532.2. Unlike common carriers subject to the tariff requirements in 46 U.S.C. 40501 and 46 CFR part 520, NVOCCs using NRAs must describe the applicable pass-through charges in either the NRA or rules tariff but need not specify the amount of those charges. 46 CFR 532.5(d)(2). Rather “[f]or any pass-through charge for which a specific amount is not included in the NRA or the rules tariff, the NVOCC may only invoice the shipper for charges the NVOCC incurs, with no markup.” 46 CFR 532.5(d)(2)(iv). For NVOCC NRAs, the Commission provided greater flexibility by further stating that “[t]he Commission is removing the prohibition on the pass-through of ocean carrier GRIs in order to increase efficiency and flexibility within the NRA framework.” 83 FR 34780, 34787 (July 23, 2018).

            5 See Final Rule in FMC Docket No. 17-10, Amendments to Regulations Governing NVOCC Negotiated Rate Arrangements and NVOCC Service Arrangements, 83 FR 34780 (July 23, 2018).

        The current tariff regulations permit common carriers to apply changes to any governmental or non-governmental charge beyond the carrier's control (e.g., terminal handling charges or canal tolls) effective on publication. 46 CFR 520.8(b)(4). But the Commission does not view VOCC GRIs as falling within this provision. A GRI is an adjustment to the base freight rate rather than a surcharge and may not become effective immediately on publication under § 520.8(b)(4). While the Commission has treated VOCC GRIs as pass-through charges under the NVOCC NRA exemption from tariff rate publication, there is no corresponding provision in the Commission's regulations for cargo moving under tariffs. VOCCs and NVOCCs are common carriers in their relationship with their shippers. Therefore, like VOCCs, NVOCCs must also publish GRIs in their tariffs and provide 30 days' notice of the increase to their shippers, as required by the Commission's regulation at 46 CFR 520.8(a)(1). Additionally, common carriers, which include NVOCCs, must include in their tariffs all rates and charges, including the charges described in 46 CFR 520.8(b)(4). 46 CFR 520.3.
        The Commission is concerned that the widely varying interpretations and inappropriate application of so-called pass-through charges under common carrier tariffs may result in harm to shippers. The practice of some carriers to incorrectly pass-through charges could deny the shipper full transparency regarding the total freight charges that will apply to a shipment, as well as deprive the shipper of advance notice of any increase in those charges. The Commission, therefore, seeks responses to the following questions, as well as any additional information related to the public's experience with pass-through charges.
        1. For an ocean common carrier (VOCC), what are the typical charges that are not under its control and for which the ocean common carrier merely acts as a collection agent?
        2. For an ocean common carrier (VOCC), how does its tariff specify or address those charges for which it merely acts as a collection agent?
        3. For an NVOCC, what are the typical charges that are not under its control and for which the NVOCC merely acts as a collection agent?
        4. For an NVOCC, how does its tariff specify or address those charges for which it merely acts as a collection agent?

        5. How do common carriers communicate to shippers that the so-called pass-through charges are for the account of shippers?
        6. How can shippers be assured that common carriers collect pass-through charges without adding any mark-up?
        In your response, where possible, please include the carrier name(s) and the relevant tariff provisions.
        III. Public Participation
        How do I prepare and submit comments?
        Your comments must be written and in English. To ensure that your comments are correctly filed in the docket, please include the docket number of this document in your comments.

        You may submit your comments via email to the email address listed above under ADDRESSES. Please include the docket number associated with this notice and the subject matter in the subject line of the email. Comments should be attached to the email as a Microsoft Word or text-searchable PDF document.
        How do I submit confidential business information?

        The Commission will provide confidential treatment for identified confidential information to the extent allowed by law. If your comments contain confidential information, you must submit the following by email to the address listed above under ADDRESSES:
        • A transmittal letter requesting confidential treatment that identifies the specific information in the comments for which protection is sought and demonstrates that the information is a trade secret or other confidential research, development, or commercial information.
        • A confidential copy of your comments, consisting of the complete filing with a cover page marked “Confidential-Restricted,” and the confidential material clearly marked on each page.
        • A public version of your comments with the confidential information excluded. The public version must state “Public Version—confidential materials excluded” on the cover page and on each affected page and must clearly indicate any information withheld.
        Will the Commission consider late comments?

        The Commission will consider all comments received before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments received after that date.
        How can I read comments submitted by other people?

        You may read the comments received by the Commission at the Commission's Electronic Reading Room at the addresses listed above under ADDRESSES.
        In addition to soliciting the comments of regulated entities, the shipping public and supply chain stakeholders, the Commission encourages any interested party to comment on these questions and any experience they have related to these two issues.

          By the Commission.
          Rachel E. Dickon,
          Secretary.

      [FR Doc. 2021-06128 Filed 4-7-21; 8:45 am]
      BILLING CODE 6730-02-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 060320078-6078-01; I.D. 031506B ]
        RIN 0648-AU40
        Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Notice of a Control Date for the Purpose of Limiting Entry to the Charter and Party Fishery; Northeast (NE) Multispecies Fishery Management Plan (FMP)

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

          ACTION:
          Advance Notice of Proposed Rulemaking.

          SUMMARY:
          NMFS announces that it is considering, and is seeking public comment on, proposed rulemaking to control future access to the open access charter and party boat (charter/party) fishery in the NE multispecies fishery if a management regime is developed and implemented under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) to limit the number of participants in this sector of the NE multispecies fishery. This sector of the fishery includes vessels with open access charter/party permits, as well as limited access NE multispecies permits, while not on a NE multispecies day-at-sea (DAS). This announcement is intended, in part, to promote awareness of potential eligibility criteria for future access so as to discourage speculative entry into the fishery while the New England Fishery Management Council (Council) considers whether and how access to the charter/party fishery should be controlled.

          DATES:
          The date of publication of this document, March 30, 2006, shall be known as the “control date” and may be used for establishing eligibility criteria for determining levels of future access to the charter/party fishery subject to Federal authority. Written comments must be received on or before 5 p.m., local time, May 1, 2006.

          ADDRESSES:
          You may submit comments by any of the following methods:
          • Written comments (paper, disk, or CD-ROM) should be sent to Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. Mark the outside of the envelope, “Comments on Charter/Party Multispecies Control Date.”
          • Comments also may be sent via facsimile (fax) to (978) 465-3116.
          • E-mail: MUL_Charter_Party_Control_Date@Noaa.gov. Include in the subject line the following “Comments on Charter/Party Multispecies Control Date.” Federal e-Rulemaking Portal: http://www.regulations.gov.

          FOR FURTHER INFORMATION CONTACT:

          Moira C. Kelly, Fishery Management Specialist, 978-281-9218; fax 978-281-9135; e-mail: moira.kelly@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The recreational fishery historically has landed a significant percentage of the cod caught in the GOM. As a result of the overfished condition of both Georges Bank (GB) and Gulf of Maine (GOM) stocks of Atlantic cod (Gadus morhua), the Council has implemented measures to regulate recreational cod fishing since 1994. These measures include minimum fish sizes, limits on the number of hooks per line, and restrictions on the number of cod permitted to be landed (bag limits). More recently, Framework Adjustment 42 to the NE Multispecies Fishery Management Plan (FMP), which, if approved, is expected to be effective during the summer of 2006, would prohibit the possession of Atlantic cod in the recreational fishery from November 1 through March 31, and increase the minimum size for recreationally caught cod from 22 inches (55.88 cm) to 24 inches (60.96 cm). These measures would apply to both charter/party and private recreational vessels and would reduce fishing mortality on GOM cod by approximately 32 percent in order to help achieve the necessary fishing mortality reduction levels required by the FMP. A Secretarial proposed emergency rule was published on March 3, 2006 (71 FR 11060), that would implement these measures at the start of the fishing year, May 1, 2006. In addition to cod, the following NE multispecies are also commonly caught by the charter/party industry: Pollock (Pollachius virens); haddock (Melanogrammus aeglefinus); and winter flounder (Pleuronectes americanus); and, to a lesser extent, white hake (Urophycis tenuis), and non-regulated species such as cusk (Brosme brosme) and wolffish (Anarhichas lupus).
        In light of these new proposed restrictions and their impacts, members of the charter/party industry and the Council's Recreational Advisory Panel recommended that the Council restrict new entrants to the charter/party fishery to reduce the need for further restrictions on the recreational catch of cod and other groundfish.
        Based on information developed by the Marine Recreational Fishery Statistical Survey (MRFSS) and the Council's Groundfish Plan Development Team, while the number of charter/party open access permits in 2005 (approximately 673) was 5 percent below that in 2002, the highest number of charter/party permits issued in 1 year, the number of charter/party trips landing GOM cod remained relatively constant from 1990 through 2001. However, despite the fact that the number of trips has remained constant, the recreational catch of GOM cod has declined since 1982. The percent decrease in the amount of GOM cod caught by the recreational fishery is similar to the percent change in GOM cod caught by the commercial fishery throughout much of the same time period.
        The control date is intended to discourage speculative entry into the charter/party NE multispecies fishery while controlled access restrictions are considered by the Council. The control date will help to distinguish established participants from speculative entrants to the fishery. Although entering the fishery after the control date will not ensure fishing vessels of future access to the NE multispecies resource on the grounds of previous participation, additional and/or other qualifying criteria may be applied. The Council may choose different and variably weighted measures to qualify participants based on the type and length of participation in the charter/party NE multispecies fishery.

        This notification establishes March 30, 2006 as the control date for potential use in determining historical or traditional participation in the NE multispecies charter/party fishery. Consideration of a control date does not commit the Council or NMFS to develop any particular management system or criteria for participation in this fishery. The Council may choose a different control date, or may choose a management program that does not make use of such a date.
        Fishers are not guaranteed future participation in the fishery, regardless of their entry dates or level of participation in this fishery before or after the control date. The Council may choose to give variably weighted consideration to fishers active in the fishery before and after the control date. The Council may also choose to take no further action to control entry or access to the fishery, in which case the control date may be rescinded. Any action by the Council will be taken pursuant to the requirements for the development of FMP amendments established under the Magnuson-Stevens Act.
        This notification also gives the public notice that interested participants should locate and preserve records that substantiate and verify their participation in the NE multispecies charter/party fishery in Federal waters.

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

          Dated: March 24, 2006.
          John Oliver,
          Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

      [FR Doc. E6-4665 Filed 3-29-06; 8:45 am]
      BILLING CODE 3510-22-P