National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues final specifications for the 2006 summer flounder, scup, and black sea bass fisheries, and makes preliminary adjustments to the 2006 commercial quotas for these fisheries. This final rule specifies allowed harvest limits for both commercial and recreational fisheries, including scup possession limits. This action prohibits federally permitted commercial vessels from landing summer flounder in Delaware in 2006. Regulations governing the summer flounder fishery require publication of this notification to advise the State of Delaware, Federal vessel permit holders, and Federal dealer permit holders that no commercial quota is available for landing summer flounder in Delaware in 2006. This action also defines the total length measurement for black sea bass and makes changes to the regulations regarding the commercial black sea bass pot/trap fishery. The intent of this action is to establish harvest levels and other measures to attain the target fishing mortality (F) or exploitation rates, as specified for these species in the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP), to reduce bycatch, and to improve the efficiency of the commercial black sea bass fishery.
The 2006 final specifications are effective from January 1, 2006, through December 31, 2006. The amendment to the definition of “Total Length” in § 648.2 is effective January 1, 2006. The amendment to the definition of “Total Length” in § 648.2 is effective January 1, 2006. The amendments to the black sea bass gear restrictions at § 648.144(b)(2) are effective January 1, 2007.
Copies of the specifications document, including the Environmental Assessment (EA), Regulatory Impact Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), and other supporting documents used by the Summer Flounder, Scup, and Black Sea Bass Monitoring Committees are available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South Street, Dover, DE 19901–6790. The specifications document is also accessible via the Internet at
Sarah McLaughlin, Fishery Policy Analyst, (978) 281–9279.
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 FMP include summer
The regulations outline the process for specifying the annual catch limits for the summer flounder, scup, and black sea bass commercial and recreational fisheries, as well as other management measures (e.g., mesh requirements, minimum fish sizes, gear restrictions, possession restrictions, and area restrictions) for these fisheries. The measures are intended to achieve the annual targets set forth for each species in the FMP, specified either as an F or an exploitation rate (the proportion of fish available at the beginning of the year that may be removed by fishing during the year). Once the catch limits are established, they are divided into quotas based on formulas contained in the FMP. Detailed background information regarding the status of the summer flounder, scup, and black sea bass stocks and the development of the 2006 specifications for these fisheries was provided in the proposed specifications (70 FR 69722, November 17, 2005). That information is not repeated here.
NMFS will establish the 2006 recreational management measures for summer flounder, scup, and black sea bass by publishing a proposed and final rule in the
The FMP specifies a target F of F
This final rule implements the specifications contained in the November 17, 2005, proposed rule—a summer flounder TAL of 23.59 million lb (10,700 mt) for 2006. The TAL for 2006 is allocated 14,154,000 lb (6,420 mt) to the commercial sector and 9,436,000 lb (4,280 mt) to the recreational sector. This TAL has at least a 50-percent probability of achieving the target F of 0.276 in 2006, if the 2005 TAL and assumed discard levels are not exceeded. Three research projects that would utilize the full summer flounder research set-aside (RSA) of 355,762 lb (161 mt) have been conditionally approved by NMFS and are currently awaiting notice of award. After deducting this RSA, the TAL is divided into a commercial quota of 13,940,543 lb (6,303 mt) and a recreational harvest limit of 9,293,695 lb (4,216 mt). If a project is not approved by the NOAA Grants Office, the research quota associated with the disapproved proposal will be restored to the summer flounder TAL through publication in the
Consistent with the revised quota setting procedures for the FMP (67 FR 6877, February 14, 2002), summer flounder overages are determined based upon landings for the period January–October 2005, plus any previously unaccounted for landings from January–December 2004. Table 1 summarizes, for each state, the commercial summer flounder percent share, the 2006 commercial quota (both initial and less the RSA), the 2005 quota overages as described above, and the resulting final adjusted 2006 commercial quota less the RSA.
The Commission has established a system whereby 15 percent of each state's quota may be voluntarily set aside each year to enable vessels to land an incidental catch allowance after the directed fishery in a state has been closed. The intent of the incidental catch set-aside is to reduce discards by allowing fishermen to land summer flounder caught incidentally in other fisheries during the year, while ensuring that the state's overall quota is not exceeded. These Commission set-asides are not included in these 2006 final summer flounder specifications because NMFS does not have authority to establish such subcategories.
Table 1 (above) indicates that, for Delaware, the amount of the 2005
The target exploitation rate for scup for 2006 is 21 percent. The FMP specifies that the Total Allowable Catch (TAC) associated with a given exploitation rate be allocated 78 percent to the commercial sector and 22 percent to the recreational sector. Scup discard estimates are deducted from both sectors' TACs to establish TALs for each sector, i.e., TAC minus discards equals TAL. The commercial TAC, discards, and TAL (commercial quota) are then allocated on a percentage basis to three quota periods, as specified in the FMP: Winter I (January–April)—45.11 percent; Summer (May–October)—38.95 percent; and Winter II (November–December)—15.94 percent. The recreational harvest limit is allocated on a coastwide basis. Recreational measures will be the subject of a separate rulemaking early in 2006.
This final rule implements the specifications contained in the November 17, 2005, proposed rule, i.e., a 19.79–million–lb (8,977–mt) scup TAC and a 16.27-million-lb (7,380–mt) scup TAL. After deducting 184,690 (84 mt) of RSA for the three approved research projects, the TAL is divided into a commercial quota of 11,932,142 lb (5,412 mt) and a recreational harvest limit of 4,153,168 lb (1,884 mt). If a project is not approved by the NOAA Grants Office, the research quota associated with the disapproved proposal will be restored to the scup TAL through publication in the
Consistent with the revised quota setting procedures established for the FMP (67 FR 6877, February 14, 2002), scup overages are determined based upon landings for the Winter I and Summer 2005 periods, plus any previously unaccounted for landings from January–December 2004. Table 2 presents the final 2005 commercial scup quota for each period and the reported 2005 landings for the 2005 Winter I and Summer periods; there was no overage of the Winter I or Summer quota. On August 2, 2005 (70 FR 44291), and as corrected on October 4, 2005 (70 FR 57802), NMFS announced a transfer of quota from Winter I to Winter II 2005. Per the quota counting procedures, after June 30, 2006, NMFS will compile all available landings data for Winter II 2005 and compare the landings to the Winter II 2005 allocation, as adjusted. Any overages will be determined and required deductions will be made to the Winter II 2006 allocation.
Table 3 presents the commercial scup percent share, 2006 TAC, projected discards, 2006 initial quota (with and without the RSA deduction), and initial possession limits, by quota period. To achieve the commercial quotas, this final rule implements a Winter I period (January–April) per-trip possession limit of 30,000 lb (13.6 mt), and a Winter II period (November–December) initial per-trip possession limit of 2,000 lb (907 kg). The Winter I per-trip possession limit will be reduced to 1,000 lb (454 kg) when 80 percent of the commercial quota allocated to that period is projected to be harvested.
As described in the November 17, 2005, proposed rule, the Council and the Commission's Summer Flounder, Scup, and Black Sea Bass Management Board (Board) recommended an increase in the Winter II possession limit-to-rollover amount ratios, i.e., an increase from 500 lb (227 kg) to 1,500 lb (680 kg) per 500,000 lb (227 mt) of unused Winter I period quota transferred to the Winter II period. NMFS is implementing this recommendation, as presented in Table 4, because it would increase the likelihood of achieving the Scup Winter II quota.
For 2006, the target exploitation rate for black sea bass is 25 percent. The FMP specifies that the TAL associated with a given exploitation rate be allocated 49 percent to the commercial sector and 51 percent to the recreational sector. The recreational harvest limit is allocated on a coastwide basis. Recreational measures will be the subject of a separate rulemaking early in 2006.
This final rule implements the specifications contained in the November 17, 2005, proposed rule, i.e., an 8-million-lb (3,629-mt) black sea bass TAL. After deducting 178,956 lb (81 mt) of RSA for the four approved research projects, the TAL is divided into a commercial quota of 3,832,312 lb (1,738 mt) and a recreational harvest limit of 3,988,732 lb (1,809 mt). If a project is not approved by the NOAA Grants Office, the research quota associated with the disapproved proposal will be restored to the black sea bass TAL through publication in the
This final rule makes two changes to the regulations regarding the commercial black sea bass pot/trap fishery. First, NMFS increases the number of required vents in the parlor portion of the pot or trap from one to two. Black sea bass traps constructed of wooden laths may have, instead, escape vents constructed by leaving spaces of at least 1.375 inches (3.49 cm) between two sets of laths in the parlor portion of the trap. Second, NMFS increases the minimum circle vent size for pots and traps from 2.375 inches (6.03 cm) to 2.5 inches (6.4 cm) in diameter. The purpose of these modifications is to allow for greater escapement of sublegal fish and other non-target species from black sea bass pots and traps. To allow fishery participants time to comply with the changes to the black sea bass pot and trap gear restrictions, the effective date of this change in regulations is January 1, 2007.
In addition, NMFS clarifies that, for black sea bass, total length measurement should not include the caudal fin tendril. NMFS amends the total length definition to exclude explicitly any caudal filament in the measurement of black sea bass.
NMFS received 58 written comments during the comment period for the November 17, 2005, proposed rule. Significant issues and concerns are summarized below and responded to as follows.
As described above, the best available information indicates that no reduction in landings from the 2005 level will be necessary for NJ to achieve its landing target. Therefore, NMFS does not anticipate that NJ would implement more restrictive recreational management measures than those implemented for 2005. The recreational management measures for 2006 will be addressed in a separate rulemaking in early 2006, following receipt and review of the Council's recommendations.
On December 6, 2005, the Board approved a 2006 TAL of 23.59-million-lb (10,700 mt). Therefore, it is not necessary for NMFS to consider alternative measures to constrain the states to their commercial quotas.
NMFS received several comments on issues not specifically related to this rulemaking, including: Some supporting more lenient minimum fish sizes for summer flounder recreational fishermen; some concerned about the impacts of release mortality on the summer flounder stock; a few expressing concern about composition of the Council; one suggesting that NMFS place observers on party boats rather than using random recreational surveys; one suggesting that no summer flounder size limits be implemented but that anglers be required to keep all fish up to the possession limit amount; one suggesting split minimum fish sizes for summer flounder; one suggesting required use of circle hooks for recreational summer flounder fishing; and one supporting designation of marine protected areas to allow the stocks to rebuild. While NMFS acknowledges that consideration of these concerns is important, this rule is not the proper mechanism to address these issues.
The Assistant Administrator for Fisheries, NOAA, finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness period for this rule. This action establishes annual quotas for the summer flounder, scup, and black sea bass fisheries and possession limits for the commercial scup fishery. Preparation of the proposed rule was dependent on the submission by the Council of the final EA/RIR/IRFA, which occurred in October 2005, in order for the agency to provide the public with information from the environmental and economic analyses, as required in rulemaking. The Council provided a supplement to the document in November 2005. NMFS published the proposed rule on November 17, 2005, with an abbreviated, 15-day comment period, in order to allow for finalization of the proposed regulatory changes by January 1, 2006. NMFS was unable to obtain the necessary data from the Council before October 2005 to finalize the specifications. Therefore, in order to implement the 2006 specifications before the beginning of the fishing season beginning January 1, 2006, NMFS must waive the 30-day delay in effectiveness.
If implementation of the specifications is delayed, NMFS will be prevented from carrying out its legal obligation to prevent overfishing of these three species. The fisheries covered by this action will begin making landings on January 1, 2006. If a delay in effectiveness were to be required, and a quota were to be harvested during a delayed effectiveness period, the lack of effective quota specifications would prevent NMFS from closing the fishery. The scup and black sea bass fisheries are expected to be active at the start of the fishing season in 2006. In addition, this rule is necessary to keep summer flounder from being landed in Delaware, which is in a negative quota situation.
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 IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS’ responses to those comments, and a summary of the analyses completed to support the action. A copy of the EA/RIR/IRFA is available from the Council (see
The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated here.
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.
Several of the comment letters received on the proposed rule specifically addressed the potential economic impact of reduction of the summer flounder TAL on the recreational fishing industry, particularly in NJ. No changes to the proposed rule were required to be made as a result of public comments. For a summary of the comments received, and the responses thereto, refer to the “Comments and Responses” section of this preamble.
The categories of small entities likely to be affected by this action include commercial and charter/party vessel owners holding an active Federal permit for summer flounder, scup, or black sea bass, as well as owners of vessels that fish for any of these species in state waters. The Council estimates that the 2006 quotas could affect 2,162 vessels that held a Federal summer flounder, scup, and/or black sea bass permit in 2004. However, the more immediate impact of this final rule will likely be felt by the 906 vessels that actively participated (i.e., landed these species) in these fisheries in 2004.
No additional reporting, recordkeeping, or other compliance requirements are included in this final rule.
Economic impacts are being minimized to the extent practicable with the quota specifications being implemented in this final rule, while remaining consistent with the target fishing mortality rates or target exploitation rates specified in the FMP. Specification of commercial quotas and possession limits is constrained by the conservation objectives of the FMP, and implemented at 50 CFR part 648 under the authority of the Magnuson-Stevens Act.
The economic analysis assessed the impacts of the various management alternatives. In the EA, the no action alternative is defined as follows: (1) No proposed specifications for the 2006 summer flounder, scup, and black sea bass fisheries would be published; (2) the indefinite management measures (minimum mesh sizes, minimum fish sizes, possession limits, permit and reporting requirements, etc.) would remain unchanged; (3) there would be no quota set-aside allocated to research in 2006; (4) the existing black sea bass pot and trap gear restrictions would remain in place; and (5) there would be no specific cap on the allowable annual landings in these fisheries (i.e., there would be no quotas). Implementation of the no action alternative would be inconsistent with the goals and objectives of the FMP, its implementing regulations, and the Magnuson-Stevens Act. In addition, the no action alternative would substantially complicate the approved management program for these fisheries, and would very likely result in overfishing of the resources. Therefore, the no action alternative is not considered to be a reasonable alternative to the preferred action and is not analyzed in the EA/RIR/IRFA/FRFA.
Alternative 1 consists of the harvest limits proposed by the Council for
Table 5 presents the 2006 initial TALs, RSA, commercial quotas adjusted for RSA, and preliminary recreational harvests for the fisheries under these three quota alternatives.
The commercial scup possession limits and the amount of increase to the Winter II possession limit-to-rollover amount ratio were chosen as an appropriate balance between the economic concerns of the industry (i.e., landing enough scup to make the trip economically viable) and the need to ensure the equitable distribution of the quota over each period. Further, these actions are intended to help convert scup discards to landings, thereby improving the efficiency of the commercial scup fishery, and increasing the likelihood of achieving the Winter II quota.
The decision to require a second vent in the parlor portion of black sea bass traps and to increase the minimum size for circular vents to 2.5 inches (6.4 cm) in diameter was made based on recommendations from a 2005 black sea bass commercial industry workshop and is expected to reduce the mortality of sublegal fish, thereby improving the efficiency of the commercial black sea bass fishery (via increasing yields and amount of mature fish in the stock).
Finally, the revenue decreases associated with the RSA program are expected to be minimal, and are expected to yield important long-term benefits associated with improved fisheries data. It should also be noted that fish harvested under the RSAs would be sold, and the profits would be used to offset the costs of research. As such, total gross revenue to the industry would not decrease substantially if the RSAs are utilized.
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 small entity compliance guide will be sent to all holders of Federal permits issued for the summer flounder, scup, and black sea bass fisheries. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from NMFS (see
Fisheries, Fishing, Reporting and recordkeeping requirements.
16 U.S.C. 1801
(b) * * *
(2) All black sea bass traps or pots must have two escape vents placed in lower corners of the parlor portion of the pot or trap that each comply with one of the following minimum size requirements: 1.375 inches by 5.75 inches (3.49 cm by 14.61 cm); a circular vent of 2.5 inches (6.4 cm) in diameter; or a square vent with sides of 2 inches (5.1 cm), inside measure; however, black sea bass traps constructed of wooden laths may have instead escape vents constructed by leaving spaces of at least 1.375 inches (3.49 cm) between two sets of laths in the parlor portion of the trap. These dimensions for escape vents and lath spacing may be adjusted pursuant to the procedures in § 648.140.