[Federal Register Volume 84, Number 96 (Friday, May 17, 2019)]
[Proposed Rules]
[Pages 22426-22429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10249]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 190415375-9375-01]
RIN 0648-BI92


Fisheries of the Northeastern United States; Recreational 
Management Measures for the Summer Flounder Fishery; Fishing Year 2019

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 2019 summer flounder 
recreational fishery. The implementing regulations for this fishery 
require NMFS to publish recreational measures for the fishing year and 
to provide an opportunity for public comment. The intent of this action 
is to constrain recreational catch to the summer flounder recreational 
harvest limit and thereby, prevent overfishing on the summer flounder 
stock.

DATES: Comments must be received by June 3, 2019.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2019-0025, 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-2019-
0025,
     Click the ``Comment Now!'' icon, complete the required 
fields
     Enter or attach your comments.
    -OR-
    Mail: Submit written comments to Michael Pentony, 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).

FOR FURTHER INFORMATION CONTACT: Emily Gilbert, Fishery Policy Analyst, 
(978) 281-9244.

SUPPLEMENTARY INFORMATION:

Summary of Proposed Management Measures

    In this rule, NMFS proposes management measures for the 2019 summer 
flounder recreational fishery consistent with the recommendations of 
the Mid-Atlantic Fishery Management Council (Council) and the Atlantic 
States Marine Fisheries Commission (Commission). NMFS proposes to waive 
Federal summer flounder recreational measures in Federal waters of the 
exclusive economic zone (EEZ) and to all federally permitted summer 
flounder party/charter vessels, regardless of where they fish, so long 
as the states, through the Commission, collectively implement measures 
designed to constrain landings to the 2019 recreational harvest limit.

[[Page 22427]]

Background and Management Process

    The summer flounder fishery is managed cooperatively under the 
provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan (FMP) developed by the Council and the Commission, in 
consultation with the New England and South Atlantic Fishery Management 
Councils. The management unit specified in the FMP includes 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. States manage summer flounder within 3 nautical miles (4.83 km) 
of their coasts, under the Commission's plan for summer flounder. The 
summer flounder Federal regulations govern vessels and individual 
fishermen fishing in Federal waters of the EEZ, as well as vessels 
possessing a summer flounder charter/party vessel permit, regardless of 
where they fish.

Recreational Management Measures Process

    The FMP established a monitoring committee for summer flounder 
consisting of representatives from the Commission, the Council, state 
marine fishery agency representatives from Massachusetts to North 
Carolina, and NMFS. The FMP's implementing regulations require the 
monitoring committee 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 limit 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 and the Commission's Summer Flounder, Scup, and Black 
Sea Bass Management Board then consider the monitoring committee's 
recommendations and any public comment in making their recommendations. 
The Council forwards its recommendations 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 target specified for summer flounder 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.

Summer Flounder Conservation Equivalency Process

    Conservation equivalency, as established by Framework Adjustment 2 
(July 11, 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 management target 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 default 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 
50 CFR 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 are 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.
    The development of conservation equivalency measures 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 measures and the process by 
which the Commission evaluates and recommends proposed conservation 
equivalent measures are 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.
    Once the states and regions select their final 2019 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 neither 
approves nor implements individual states' measures, but retains the 
final authority either to approve or to disapprove the use of 
conservation equivalency in place of the coastwide measures in Federal 
waters. NMFS will publish its final determination on 2019 
conservational equivalency as a final rule in the Federal Register 
following review of the Commission's determination and any other public 
comment on this proposed rule.

2019 Summer Flounder Recreational Management Measures

    At their joint meeting in March 2019, the Council and Board 
recommended revised summer flounder specifications for 2019. These 
revisions resulted from the 2018 summer flounder benchmark assessment, 
which was one of the first assessments in the region to incorporate 
revised Marine Recreational Information Program (MRIP) information. The 
summer flounder assessment concluded that the stock is not overfished 
and overfishing is not occurring relative to updated biological 
reference points. Although recruitment has been below average since 
2011 for unknown reasons, the inclusion of new estimates of 
recreational catch from MRIP increased the biomass of the population 
compared to previous assessments.

[[Page 22428]]

    Based on the results of the assessment, the recommended revised 
2019 summer flounder recreational harvest limit is 7.69 million lb 
(3,488 mt), a 74-percent increase from the 2018 harvest limit of 4.42 
million pounds (2,005 mt), and a 49-percent increase compared to what 
is currently in place for 2019 (5.15 million pounds; 2,336 mt). A 
separate rulemaking revising the 2019 specifications, including the 
recreational harvest limit, is being prepared and must be finalized 
before NMFS can publish a final rule for this action.
    As previously mentioned, the Council and Board recommended 
conservation equivalency in Federal waters. Based on the Council's and 
the Board's recommendations, and as part of the conservation 
equivalency process, NMFS also proposes a suite of non-preferred 
coastwide measures, consistent with those adopted by the Council and 
Board for implementation in 2019. Under conservation equivalency, the 
cumulative impact of the regional recreational measures should achieve 
the same constraints on harvest as the non-preferred coastwide 
measures. For 2019, non-preferred coastwide measures approved by the 
Council and Board are a 19-inch (48.3-cm) minimum fish size, a 4-fish 
per person possession limit, and an open season from May 15-September 
15. These measures are identical to the non-preferred 2018 coastwide 
measures. These measures are expected to constrain the overall 
recreational landings to the 2019 recreational harvest limit, should 
conservation equivalency be disapproved based on the Commission's 
recommendation letter. If a jurisdiction's measures do not achieve the 
level of conservation required by the Commission, that state or region 
must implement the precautionary default measures. The 2019 
precautionary default measures recommended by the Council and Board are 
identical to those in place for 2018: A 20.0-inch (50.8-cm) minimum 
fish size; a 2-fish per person possession limit; and an open season of 
July 1-August 31, 2018.
    Although the Council and Board's recommended 2019 recreational 
harvest limit is an increase compared to what was in place in 2018, 
preliminary harvest estimates using the updated MRIP methodology 
indicate that the 2018 recreational landings are 7.17 million pounds 
(3,252 mt). As a result, the Council and Board do not recommend 
liberalizing any recreational measures (e.g., state waters measures, 
the non-preferred coastwide and precautionary default measures required 
through conservation equivalency) due to the increase in expected 2019 
catch based on the revised MRIP information (i.e., if measures remain 
in place, they are expected to constrain catch to the 2019 harvest 
limit).
    Similar to 2016-2018, the 2019 management program adopted by the 
Commission divides the coastline into six management regions: (1) 
Massachusetts; (2) Rhode Island; (3) Connecticut-New York; (4) New 
Jersey; (5) Delaware-Virginia; and (6) North Carolina. Each state 
within a region must implement identical or equivalent measures 
(minimum size, bag limit, and fishing season length), and the 
combination of those measures must be sufficient to constrain landings 
to the recreational harvest limit.
    Through the Commission process, states may submit proposals for 
conservationally equivalent measures that would maintain status quo 
harvest levels relative to the preliminary 2018 recreational harvest. 
Proposals for conservationally equivalent state measures were reviewed 
by the Board's Technical Committee in late March, and the Board 
considered final approval in early April 2019. Following the Board's 
consideration of final 2019 state measures, the Commission must submit 
a letter to NMFS stating whether the states have met the conservation 
objectives under Addendum XXXII to the Commission's Interstate FMP and 
that catch is expected to constrain catch to the 2019 recreational 
harvest limit. Once that letter is received and the revised 2019 
specifications are approved, NMFS will be able to publish a final 
recreational management measures rule with a conservation equivalency 
determination for 2019.
    Additionally, this proposed rule includes a revision to the 
regulations implementing the FMP to update text that is unnecessary, 
outdated, unclear, or otherwise could be improved. NMFS proposes these 
changes consistent with section 305(d) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), which provides 
that the Secretary of Commerce may promulgate regulations necessary to 
ensure that amendments to a fishery management plan (FMP) are carried 
out in accordance with the FMP and the Magnuson-Stevens Act. The 
revision at Sec.  648.14(p)(2)(ii)(B), which pertains to a prohibition 
against possessing, retaining, or landing black sea bass harvested from 
the EEZ in excess of the commercial possession limit, would be removed 
from the regulations. There is no Federal waters commercial black sea 
bass possession limit and, as such, this regulatory text is confusing 
and unnecessary.

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 Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel 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. According to the commercial ownership 
database, 351 for-hire affiliate firms generated revenues from 
recreational fishing for various species during the 2015-2017 period. 
All of those business affiliates are categorized as small businesses. 
Estimating what proportion of the overall revenues for these for-hire 
firms came from fishing activities for an individual species is not 
possible. Nevertheless, given the popularity of summer flounder as a 
recreational species in the Mid-Atlantic and New England, generated 
revenues are likely very important for many of these firms at certain 
times of the year. The 3-year average (2015-2017) combined gross 
receipts (all for-hire fishing activity combined) for these small 
entities was $52,460,560 ranging from less than $10,000 for 79 entities 
(lowest value $81) to over $1,000,000 for 9 entities (highest value 
$2.8 million).
    This action would waive Federal measures in lieu of state measures 
designed to reach the 2019 harvest limit. The economic impacts of the 
proposed measures in this action will be affected in part by the 
specific set of measures implemented at the state level for summer 
flounder conservation equivalency. The impacts are likely to vary by 
state, but are expected to be equivalent to measures that were in place 
in 2018. The summer flounder recreational measures under conservation 
equivalency are expected to neither reduce nor increase recreational 
satisfaction or for-hire revenues when compared to 2018. Demand for 
for-hire trips is expected to remain approximately the same as in 2018. 
Thus, market demand is expected to be similar in 2019, although this is 
likely to vary by state depending on

[[Page 22429]]

each state's current measures and how they choose to modify them in 
2019.
    Because the 2019 measures are expected to be mostly identical to 
2018, this rule will not have a significant economic impact on a 
substantial number of small entities. Therefore, 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 13, 2019.
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.


Sec.  648.14   [Amended]

0
2. In Sec.  648.14, remove and reserve paragraph (p)(2)(ii)(B).
0
3. In Sec.  648.107, the 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 2019 are the conservation equivalent of the 
minimum size, season, and possession limit prescribed in Sec. Sec.  
648.104(b), 648.105, and 648.106. This determination is based on a 
recommendation from the Summer Flounder Board of the Atlantic States 
Marine Fisheries Commission.
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[FR Doc. 2019-10249 Filed 5-16-19; 8:45 am]
BILLING CODE 3510-22-P