[Federal Register Volume 81, Number 99 (Monday, May 23, 2016)]
[Proposed Rules]
[Pages 32269-32273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12076]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 160301167-6167-01]
RIN 0648-BF89


Fisheries of the Northeastern United States; Recreational 
Management Measures for the Summer Flounder, Scup, and Black Sea Bass 
Fisheries; Fishing Year 2016

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes management measures for the 2016 summer 
flounder, scup, and black sea bass recreational fisheries. NMFS is also 
proposing a change to the commercial scup incidental possession limit, 
and two minor corrections to the summer flounder minimum mesh size 
regulations. The implementing regulations for these fisheries require 
NMFS to publish recreational measures for the fishing year and to 
provide an opportunity for public comment. The intent of these measures 
is to constrain recreational catch to established limits and prevent 
overfishing of the summer flounder, scup, and black sea bass resources. 
The intent of the commercial scup regulatory change is to reduce 
unnecessary discards by allowing more incidentally caught scup to be 
retained by vessels. The regulatory corrections are intended to clarify 
the original purpose of the regulation.

DATES: Comments must be received by 5 p.m. local time, on June 7, 2016.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2016-0029, by either of the following methods:
    Electronic submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal.
     Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-
0029,
     Click the ``Comment Now!'' icon, complete the required 
fields
     Enter or attach your comments.

--OR--

    Mail: Submit written comments to John Bullard, Regional 
Administrator, Greater Atlantic Region, 55 Great Republic Drive, 
Gloucester, MA 01930.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    Copies of the Supplemental Information Report (SIR) and other 
supporting documents for the recreational harvest measures are 
available from Dr. Christopher M. Moore, Executive Director, Mid-
Atlantic Fishery Management Council, Suite 201, 800 N. State Street, 
Dover, DE 19901. The recreational harvest measures document is also 
accessible via the Internet at: http://www.greateratlantic.fisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Elizabeth Scheimer, Fisheries 
Management Specialist, (978) 281-9236.

SUPPLEMENTARY INFORMATION: 

General Background

    The summer flounder, scup, and black sea bass fisheries are managed 
cooperatively under the provisions of the Summer Flounder, Scup, and 
Black Sea Bass Fishery Management Plan (FMP) developed by the Mid-
Atlantic Fishery Management Council (Council) and the Atlantic States 
Marine Fisheries Commission (Commission), in consultation with the New 
England and South Atlantic Fishery Management Councils. The management 
units specified in the FMP include summer flounder (Paralichthys 
dentatus) in U.S. waters of the Atlantic Ocean from the southern border 
of North Carolina 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[deg]13.3' N. lat. (the 
approximate latitude of Cape Hatteras, North Carolina). States manage 
these three species within 3 nautical miles (4.83 km) of their coasts, 
under the Commission's plan for summer flounder, scup, and black sea 
bass. The applicable species-specific Federal regulations govern 
vessels and individual fishermen fishing in Federal waters of the 
exclusive economic zone (EEZ), as well as vessels possessing a summer 
flounder, scup, or black sea bass Federal charter/party vessel permit, 
regardless of where they fish.

Recreational Management Measures Background

    The Council process for recommending recreational management 
measures to NMFS for rulemaking is generically described below. All 
meetings are open to the public and the materials utilized during such 
meetings, as well as any documents created to summarize the meeting 
results, are public information and posted on the Council's Web site 
(www.mafmc.org) or are available from the Council by request. 
Therefore, extensive background on the 2016 recreational management 
measures recommendation process is not repeated in this preamble.
    The FMP established monitoring committees for the three fisheries, 
consisting of representatives from the

[[Page 32270]]

Commission, the Council, state marine fishery agency representatives 
from Massachusetts to North Carolina, and NMFS. The FMP's implementing 
regulations require the monitoring committees to review scientific and 
other relevant information annually. The objective of this review is to 
recommend management measures to the Council that will constrain 
landings within the recreational harvest limits established for the 
three fisheries for the upcoming fishing year. The FMP limits the 
choices for the types of measures to minimum fish size, per angler 
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 monitoring committees' recommendations and any public 
comment in making their recommendations to the Council and the 
Commission, respectively. The Council 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 and all applicable laws 
and Executive Orders before ultimately implementing measures for 
Federal waters. Commission measures are final at the time they are 
adopted.
    In this rule, NMFS proposes management measures for the 2016 summer 
flounder, scup, and black sea bass recreational fisheries consistent 
with the recommendations of the Council. All minimum fish sizes 
discussed 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 per trip.
    Typically, the Council and Commission consider modifications to all 
of the Federal commercial management measures in conjunction with the 
specifications. In 2015, the Council and Commission postponed decision 
making on changes to the scup commercial measures until a more thorough 
analysis could be completed. After considering the full suite of 
commercial management measures in Federal waters, the Council 
recommends, and this rule proposes, changing the commercial scup 
incidental possession limit from 500 lb (227 kg) to 1,000 lb (454 kg) 
from November 1, 2016, through April 30, 2017. This incidental 
possession limit applies to vessels using mesh smaller than 5.0 inches 
(12.7 cm).

Proposed 2016 Recreational Management Measures

    NMFS is proposing the following measures that would apply in the 
Federal waters of the EEZ. These measures apply to all federally 
permitted party/charter vessels with applicable summer flounder, scup, 
or black sea bass permits, regardless of where they fish, unless the 
state in which they land implements measures that are more restrictive. 
These measures are intended to achieve, but not exceed, the previously-
established recreational harvest limits for these fisheries (December 
28, 2015; 80 FR 80689). For summer flounder, we are proposing the use 
of state-by-state or regional conservation equivalency measures, which 
are the status quo measures, and no changes to the scup or black sea 
bass recreational management measures. Although unlikely, given the 
Board's February 2016 decisions on black sea bass measures, NMFS may 
implement more restrictive black sea bass measures for Federal waters 
if states fail to implement measures that, when paired with the 
Council's recommended measures, provide the necessary conservation to 
ensure the 2016 recreational harvest limit will not be exceeded. These 
measures, as recommended by the Council, would be a 14-inch (35.6-cm) 
minimum fish size, a 3-fish per person possession limit, and an open 
season of July 15-September 15, 2016.

Summer Flounder Recreational Management Measures

    NMFS proposes to implement the Council and Commission's 
recommendation to use conservation equivalency to manage the 2016 
summer flounder recreational fishery. The 2016 recreational harvest 
limit for summer flounder is 5.42 million lb (2,457 mt) and projected 
landings for 2015 are approximately 4.62 million lb (2,096 mt). These 
2015 projected landings are based on preliminary Marine Recreational 
Information Program estimates through Wave 6 (November and December 
2015). As a result, maintaining the 2015 measures is expected to 
effectively constrain the 2016 recreational landings and prevent the 
recreational harvest limit from being exceeded.
    Conservation equivalency, as established by Framework Adjustment 2 
(July 29, 2001; 66 FR 36208), allows each state to establish its own 
recreational management measures (possession limits, minimum fish size, 
and fishing seasons) to achieve its state harvest limit partitioned by 
the Commission from the coastwide recreational harvest limit, as long 
as the combined effect of all of the states' management measures 
achieves the same level of conservation as would Federal coastwide 
measures. Framework Adjustment 6 (July 26, 2006; 71 FR 42315) allowed 
states to form regions for conservation equivalency in order to 
minimize differences in regulations for anglers fishing in adjacent 
waters.
    The Council and Board annually recommend that either state- or 
region-specific recreational measures be developed (conservation 
equivalency) or that coastwide management measures be implemented 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 for use in Federal waters.
    When conservation equivalency is recommended, and following 
confirmation that the proposed state or regional measures developed 
through the Commission's technical and policy review processes achieve 
conservation equivalency, NMFS may waive the permit condition found at 
Sec.  648.4(b), which requires Federal permit holders to comply with 
the more restrictive management measures when state and Federal 
measures differ. In such a situation, federally permitted summer 
flounder charter/party permit holders and individuals fishing for 
summer flounder in the EEZ would then be subject to the recreational 
fishing measures implemented by the state in which they land summer 
flounder, rather than the coastwide measures.
    In addition, the Council and the Board must recommend precautionary 
default measures when recommending conservation equivalency. The 
Commission would require adoption of the precautionary default measures 
by any state that either does not submit a summer flounder management 
proposal to the Commission's Summer Flounder Technical Committee, or 
that submits measures that would exceed the Commission-specified 
harvest limit for that state.
    Much of the conservation equivalency measures development process 
happens at both the Commission and the individual state level. The 
selection of appropriate data and analytical techniques for technical 
review of potential state conservation equivalent

[[Page 32271]]

measures and the process by which the Commission evaluates and 
recommends proposed conservation equivalent measures is wholly a 
function of the Commission and its individual member states. 
Individuals seeking information regarding the process to develop 
specific state measures or the Commission process for technical 
evaluation of proposed measures should contact the marine fisheries 
agency in the state of interest, the Commission, or both.
    The Commission has implemented an addendum to its Summer Flounder 
FMP (Addendum XXVII) to continue regional conservation equivalency for 
fishing year 2016. The Commission has adopted the following regions: 
(1) Massachusetts; (2) Rhode Island; (3) Connecticut and New York; (4) 
New Jersey; (4) Delaware, Maryland, and Virginia; and (5) North 
Carolina. In order to provide the maximum amount of flexibility and to 
continue to adequately address the state-by-state differences in fish 
availability, each state in a region is required by the Council and 
Commission to establish fishing seasons of the same length, with 
identical minimum fish sizes and possession limits. The Commission will 
need to certify that these measures, in combination, are the 
conservation equivalent of coastwide measures that would be expected to 
result in the recreational harvest limit being achieved, but not 
exceeded. More information on this addendum is available from the 
Commission (www.asmfc.org).
    Once the states and regions select their final 2016 summer flounder 
management measures through their respective development, analytical, 
and review processes and submit them to the Commission, the Commission 
will conduct further review and evaluation of the submitted proposals, 
ultimately notifying NMFS as to which proposals have been approved or 
disapproved. NMFS has no overarching authority in the development of 
state or Commission management measures, but is an equal participant 
along with all the member states in the review process. NMFS retains 
the final authority either to approve or to disapprove the use of 
conservation equivalency in place of the coastwide measures in Federal 
waters, and will publish its determination as a final rule in the 
Federal Register to establish the 2016 recreational measures for these 
fisheries.
    States that do not submit conservation equivalency proposals, or 
whose proposals are disapproved by the Commission, will be required by 
the Commission to adopt the precautionary default measures. In February 
2016, the Commission's Summer Flounder Board convened and approved a 
suite of measures and/or analytical techniques for measures development 
that should achieve conservation equivalency. Thus, it is unlikely that 
the precautionary default measures will be necessary for 2016. However, 
if states are initially assigned precautionary default measures, they 
may subsequently receive Commission approval of revised state measures. 
In that case, NMFS would publish a notice in the Federal Register 
announcing a waiver of the permit condition at Sec.  648.4(b).
    The 2016 precautionary default measures recommended by the Council 
and Board are for a 20.0-inch (50.8-cm) minimum fish size, a possession 
limit of two fish, and an open season of May 1 through September 30, 
2016.
    In this action, NMFS proposes to implement conservation equivalency 
with a precautionary default backstop, as previously outlined, for 
states that either fail to submit conservation equivalent measures or 
whose measures are not approved by the Commission. NMFS proposes the 
alternative of coastwide measures (18-inch (45.7-cm) minimum size, 4-
fish possession limit, May 1-September 30 open fishing season), if 
conservation equivalency is not approved in the final rule.

Scup Recreational Management Measures

    The 2016 scup recreational harvest limit is 6.09 million lb (2,763 
mt) and 2015 recreational landings are currently estimated at 4.88 
million lb (2,214 mt). The Council recommended maintaining the existing 
management measures, as no changes are needed to ensure the 2016 
recreational harvest limit is not exceeded, and further liberalization 
of the management measures is not requested or advisable. As a result, 
no changes to the current scup management measures (9-inch or 22.9 cm 
minimum fish size, 50-fish per person possession limit, and year-round 
season) are proposed.

Black Sea Bass Recreational Management Measures

    The 2016 black sea bass recreational harvest limit is 2.82 million 
lb (1,280 mt), while the 2015 projected landings are 3.62 million lb 
(1,642 mt). These 2015 projected landings are based on preliminary 
Marine Recreational Information Program estimates through Wave 6 
(November and December 2015). 2016 management measures must reduce 
landings by 22-percent relative to 2015 in order to constrain catch 
within the 2016 recreational harvest limit. Recreational black sea bass 
catch occurs primarily in state waters in the states of New Jersey 
through Massachusetts (i.e., the northern region). As such, the Council 
recommends maintaining the existing black sea bass regulations for 
Federal waters, and implementing the necessary reduction through 
changes in state waters measures.
    Since 2011, the management measures in the northern region have 
been more restrictive than in Federal waters. The northern states, 
through the Commission process, are expected to implement measures to 
achieve a 22-percent reduction in landings from each state. The 
southern region states (Delaware through Cape Hatteras, North Carolina) 
are expected to implement state waters measures that are identical to 
the proposed Federal measures. The northern states' reduction, in 
combination with the Council's recommendation of maintaining the status 
quo measures in Federal waters and state waters from Delaware to North 
Carolina, are intended to achieve, but not exceed, the recreational 
harvest limit and recreational annual catch limit in 2016.
    Accountability measures for the black sea bass recreational fishery 
utilize a rolling three-year average comparison of catch to the average 
of the same three years' ACLs. Because the average catch from 2012 
through 2014 exceeds the average annual catch limit for those years by 
37.9 percent, an accountability measure is applicable to the 2016 
fishery. The 2016 accountability measures are the same as those 
implemented in 2015 (12.5-inch (31.8-cm) minimum size, 15-fish 
possession limit, and 201-day fishing season). Continuing these 
regulations preserves the accountability measures that were applied 
last year; as such, no further accountability measures are necessary 
for 2015.
    We are proposing no changes to the current Federal waters measures 
(12.5-inch (31.8-cm) minimum size, 15-fish possession limit, and open 
seasons of May 15-September 21 and October 22-December 31), consistent 
with the Council's recommendation. These measures maintain the 
accountability measures implemented in 2015. This proposal is 
contingent upon the northern region, established under the Commission's 
Addendum XXVII, implementing the required reduction in their state 
regulations. If the northern region's measures do not meet the required 
reduction, NMFS is proposing the Council's default recommendation of a 
14-inch (35.6-cm) minimum size, a 3-fish possession limit, and an open

[[Page 32272]]

season of July 15-September 15 (i.e., a 63-day fishing season). The 
Council and NMFS expect, based on February 2016 action by the 
Commission's black sea bass Board, that these default measures will not 
be necessary.

Commercial Scup Incidental Possession Limit Change

    The Council initiated a review of the scup commercial management 
measures in 2015 and is recommending an increase in the incidental 
possession limit in the winter season. Currently, the regulations 
require vessels retaining more than 500 lb (227 kg) of scup from 
November 1 through April 30, or more than 200 lb (91 kg) from May 1 
through October 31, to use mesh larger than 5 inches (12.7 cm). The 
Council is recommending, and this rule proposes, to raise the 
incidental limit to 1,000 lb (454 kg) for the November-April season for 
vessels using mesh smaller than 5 inches (12.7 cm) to minimize 
regulatory discards without compromising the scup stock. Vessels using 
mesh larger than 5 inches (12.7 cm) may continue to land up to the 
targeted commercial fishery possession limit according to the 
applicable Federal and state rules.

Additional Regulatory Changes

    This rule would also correct two errors in the commercial summer 
flounder regulations.
    The summer flounder minimum mesh size regulations at Sec.  
648.108(a)(1) require that any vessel landing or possessing more than 
100 lb (45 kg) of summer flounder from May 1 through October 31, or 200 
lb (91 kg) of summer flounder from November 1 through April 30, use at 
least 5.5-inch (14-cm) diamond or 6.0-inch (15-cm) square mesh 
``throughout the body, extension(s), and codend portion of the net.'' 
However, the turtle excluding device (TED) regulations require summer 
flounder trawls fishing in the sea turtle protection area to have a TED 
extension with webbing no larger than 3.5 inches (9-cm). This rule 
would eliminate the conflict between these two regulations by 
specifying that the minimum mesh size restrictions do not apply to 
extensions needed to comply with the TED regulations.
    The flynet program exemption from the summer flounder minimum mesh 
requirements can be found at Sec.  648.108(b)(2)(i)-(iii). The Regional 
Administrator's authority to terminate the exemption after review is 
incorrectly listed at Sec.  648.108(b)(3) and should be referenced at 
Sec.  648.108(b)(2)(iv), which this rule proposes to do.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
Assistant Administrator has determined that this proposed rule is 
consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, 
other provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    The Council conducted an evaluation of the potential socioeconomic 
impacts of the proposed measures in conjunction with a SIR. Because no 
regulatory changes are proposed that would affect the recreational 
black sea bass or scup fisheries, they are not considered in the 
evaluation. There were 547 federally permitted summer flounder charter/
party vessels, all of which are considered ``small'' by the Small 
Business Administration's size standards. The commercial scup 
incidental possession limit change could potentially affect 649 
commercial entities that had revenues generated from scup during the 
2012-2014 period. Of these, 642 entities are categorized as small and 7 
are categorized as large. Scup represented approximately 0.06 percent 
of the average receipts of the small entities considered and 0.34 
percent of the average receipts of the large entities considered over 
the 2012-2014 time period.
    The proposed measure would continue the use of conservation 
equivalency for summer flounder, maintain the existing scup and black 
sea bass recreational management measures, and increase the commercial 
incidental scup possession limit from 500 lb (227 kg) to 1,000 lb (454 
kg). The proposed action would result in status quo measures for all 
three recreational fisheries in Federal waters. Further, the scup 
possession limit change is intended to allow vessels catching scup in 
the prosecution of other fisheries to keep 500 lb (227 kg) more than 
they are currently allowed, rather than discarding them. This is not 
likely to change fishing behavior, but could result in a slightly 
positive economic impact for those vessels. Collectively, analysis 
conducted by the Council indicates that these measures would have a 
minimal, potentially slight positive impact on regulated entities.
    Because this rule will not have a significant economic impact on a 
substantial number of small entities, an initial regulatory flexibility 
analysis is not required and none has been prepared.
    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: May 18, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. Section 648.107, introductory text to paragraph (a) is revised to 
read as follows:


Sec.  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 the states of Maine 
through North Carolina for 2016 are the conservation equivalent of the 
season, minimum size, and possession limit prescribed in Sec. Sec.  
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.
* * * * *
0
3. In Sec.  648.108, paragraph (b)(3) is redesignated as paragraph 
(b)(2)(iv) and paragraph (a)(1) is revised to read as follows:


Sec.  648.108  Summer flounder gear restrictions.

    (a) General. (1) Otter trawlers whose owners are issued a summer 
flounder permit and that land or possess 100 lb (45.4 kg) or more of 
summer flounder from May 1 through October 31, or 200 lb (90.7 kg) or 
more of summer flounder from November 1 through April 30, per trip, 
must fish with nets that have a minimum mesh size of 5.5-inch (14.0-cm) 
diamond or 6.0-inch (15.2-cm) square mesh applied throughout the

[[Page 32273]]

body, extension(s), and codend portion of the net, except as required 
in a TED extension, in accordance with Sec.  223.206(d)(2)(iii) of this 
title.
* * * * *
0
4. In Sec.  648.125, paragraph (a)(1) is revised to read as follows:


Sec.  648.125  Scup gear restrictions.

    (a) Trawl vessel gear restrictions--(1) Minimum mesh size. No owner 
or operator of an otter trawl vessel that is issued a scup moratorium 
permit may possess 1,000 lb (454 kg) or more of scup from November 1 
through April 30, or 200 lb (91 kg) or more of scup from May 1 through 
October 31, unless fishing with nets that have a minimum mesh size of 
5.0-inch (12.7-cm) diamond mesh, applied throughout the codend for at 
least 75 continuous meshes forward of the terminus of the net, and all 
other nets are stowed and not available for immediate use as defined in 
Sec.  648.2.
* * * * *
[FR Doc. 2016-12076 Filed 5-20-16; 8:45 am]
BILLING CODE 3510-22-P