88 FR 61 pgs. 19046-19050 - Fisheries of the Northeastern United States; Recreational Management Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing Year 2023
Type: PRORULEVolume: 88Number: 61Pages: 19046 - 19050
Pages: 19046, 19047, 19048, 19049, 19050Docket number: [Docket No. 230320-0079]
FR document: [FR Doc. 2023-06568 Filed 3-29-23; 8:45 am]
Agency: Commerce Department
Sub Agency: National Oceanic and Atmospheric Administration
Official PDF Version: PDF Version
[top]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 230320-0079]
RIN 0648-BM09
Fisheries of the Northeastern United States; Recreational Management Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing Year 2023
AGENCY:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION:
Proposed rule; request for comments.
SUMMARY:
NMFS proposes Federal management measures for the 2023 summer flounder, scup, and black sea bass recreational fisheries. 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 this action is to set management measures that allow the recreational fisheries to achieve, but not exceed, the recreational harvest targets and thereby prevent overfishing of the summer flounder, scup, and black sea bass stocks.
DATES:
Comments must be received by April 14, 2023.
ADDRESSES:
You may submit comments on this document, identified by NOAA-NMFS-2023-0019 by the following method:
• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2023-0019 in the Search box. Click on the "Comment" icon, complete the required fields, and enter or attach your comments.
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 Keiley, Fishery Policy Analyst, (978) 281-9116, or Emily.Keiley@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
The Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission cooperatively manage summer flounder, scup, and black sea bass. The Council and the Commission's Management Boards meet jointly each year to recommend recreational management measures. For summer flounder and black sea bass, we must implement coastwide measures or approve conservation-equivalent measures per 50 CFR 648.102(d) and 648.142(d), as soon as possible following the Council and Commission's recommendation. This action proposes establishing conservation equivalency for both species in 2023. For scup, we are proposing adjustments to the Federal recreational season and possession limit.
Recreational Management Measures Process
This is the first time a new approach for developing recreational summer flounder, scup, and black sea bass recreational management measures will be used. The new process, part of Framework Adjustment 17 to the Summer Flounder and Black Sea Bass Fishery Management Plan (FMP) and Framework Adjustment 6 to the Bluefish Fishery Management Plan (March 9, 2023, 88 FR 14499), referred to as the Percent Change Approach, which is a harvest control rule designed by the Council and Commission for use in managing Mid-Atlantic recreational fisheries, uses two factors to determine if management measures could remain status quo, could be liberalized, or must be restricted. These two factors are: (1) A comparison of a confidence interval (CI) around an estimate of expected harvest under status quo measures to the average recreational harvest limit (RHL) for the upcoming 2 years and; (2) biomass compared to the target level, as defined by the most recent stock assessment. These two factors also determine the appropriate degree of change, defined as a percentage change in expected harvest. Changes to recreational management measures to achieve the required percent change are evaluated by the Monitoring Committee consisting of representatives from the Commission, the Council, state marine fishery agencies from Massachusetts to North Carolina, and NMFS. The FMP limits the choices for the types of measures to: Minimum and/or maximum fish size; per angler possession limit; and fishing season. A description of the application of this process for each species is provided below.
[top] The Council and the 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 targets specified for summer flounder, scup, and black sea bass 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.
Scup Recreational Management Measures
Application of the Percent Change Approach and the bio-economic model used to evaluate recreational behavior and catch resulted in a recommended 10-percent reduction in scup harvest in 2023. This is because scup has a very high biomass (more than 150 percent of the target level), and harvest under status quo measures is expected to be above the 2023 RHL.
| Estimated harvest under status quo measure | 80-Percent confidence interval | 2023 RHL | Stock size category | Recommended percent change |
|---|---|---|---|---|
| 14.31 million lb (6,490 mt) | 9.90-17.40 million lb (4,490-7,892 mt) | 9.27 million lb (4,204 mt) | Very High | 10-Percent Reduction. |
The current Federal recreational scup management measures are a 10-inch (25.4-cm) minimum fish size, a 50-fish per person possession limit, and a year-round open season. State measures are similar but vary slightly due to differences in scup availability. The proposed Federal recreational scup management measures are a 40-fish per person possession limit, and an open season from May 1-December 31. No changes to the minimum size are being proposed. The proposed Federal measures, in conjunction with changes to state waters measures are projected to achieve the needed 10-percent harvest reduction.
Summer Flounder and Black Sea Bass Conservation Equivalency
Under conservation equivalency, Federal recreational measures are waived and federally permitted party/charter vessels and all recreational vessels fishing in Federal waters are subject to the recreational fishing measures implemented by the state in which they land. This approach allows for more customized measures at a state or regional level that are likely to meet the needs of anglers in each area, compared to coastwide measures that may be advantageous to anglers in some areas and unnecessarily restrictive in others. The combination of state or regional measures must be "equivalent" in terms of conservation to a set of "non-preferred coastwide measures," which are recommended by the Council and the Board each year.
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. Even when the Council and Board recommend conservation equivalency, the Council must specify a set of non-preferred coastwide measures that would apply if conservation equivalency is not approved for use in Federal waters.
When conservation equivalency is recommended, and following confirmation by the Commission that the proposed state or regional measures developed through its technical and policy review processes achieve conservation equivalency, NMFS may waive, for the duration of the fishing year, the permit condition found at 50 CFR 648.4(b) that 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 and black sea bass charter/party permit holders and individuals fishing for summer flounder and black sea bass in the exclusive economic zone (EEZ) are subject to the recreational fishing measures implemented by the state in which they land, rather than the coastwide measures. Conservation equivalency expires at the end of each fishing year (December 31).
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 management proposal to the Commission's Technical Committee or that submits measures that are not conservationally equivalent to the coastwide measures.
The development of conservation-equivalency measures happens both at the Commission and at 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 or regional 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 2023 summer flounder and black sea bass 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. The final combination of state and regional measures will be detailed in a letter from the Commission to the Regional Office certifying that the combination of state and regional measures have met the conservation objectives under Addendum XXXII to the Commission's Interstate FMP. NMFS will publish its determination on 2023 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.
Summer Flounder Recreational Management Measures
[top] This action proposes adopting conservation equivalency for summer flounder in 2023. For 2023, the non-preferred coastwide measures approved by the Council and Board are an 18-inch (45.72-cm) minimum fish size; 3-fish per person possession limit; and an open season from May 15-September 22. Compared to 2022, this is a decrease in the non-preferred minimum size from 18.5-inches to 18-inches (45.72-cm to 48.26-cm) total length; a 1-fish reduction of the possession limit; and an increase in the season length. The coastwide measures become the default management measures in the
The 2023 precautionary default measures recommended by the Council and Board are identical to those in place for 2021 and 2022: 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. These measures may be assigned by the Commission if conservation equivalency is approved but a state or region does not submit a conservationally equivalent proposal.
Application of the Percent Change Approach and the bio-economic model used to evaluate recreational behavior and summer flounder catch, generated conflicting results depending on the initial assumptions used in the model configuration, specifically with regard to the years selected for Marine Recreational Information Program (MRIP) data used to project the amount of catch per trip.When the most recent complete year of MRIP data (2021) was used, the model estimated harvest under status quo measures was 8.38 million lb (3,801 mt), below the 2023 RHL. When an average of 2018-2022 MRIP data was used to determine the catch per trip, the model estimated harvest was 10.92 million lb (4,953 mt), slightly above the 2023 RHL. While these estimates are not significantly different, because of the way the Percent Change Approach uses the estimates and confidence intervals, the recommended management action was different. The model run using only 2021 data resulted in a recommended 10-percent liberalization, and the model run using the 2018-2022 average resulted in a recommended 10-percent reduction in summer flounder harvest. Given the conflicting results, and uncertainty about which model run was more likely to reflect 2023 harvest, the Council and Board made some adjustments to the coastwide measures, but ultimately decided to maintain status quo measures at the state, and regional levels. We are proposing the Council and Board recommendation because it appears to be a legally suffcient solution given the conflicting results. This summer, additional work will be undertaken to evaluate the best configuration of the model for each species, which will reduce the likelihood of this scenario in the future.
| Estimated harvest under status quo measure?* | 80-Percent confidence interval | 2023 RHL | Stock size category | Recommended percent change |
|---|---|---|---|---|
| 8.38 million lb (3,801 mt) | 7.56-9.52 million lb (3,429-4,318 mt) | 10.62 million lb (4,817 mt) | Low | 10-Percent Liberalization. |
| 10.92 million lb (4,953 mt) | 9.23-12.94 million lb (4,186-5,869 mt) | Low | 10-Percent Reduction. | |
| *?The same model was used to generate both of the above harvest extimates. The different estimates are produced when different assumptions are made about the input data. | ||||
Black Sea Bass Recreational Management Measures
This action proposes adopting conservation equivalency for black sea bass in 2023. The Council and Board recommended the following coastwide measures: A 15-inch (12.7-cm) minimum size; a 5-fish possession limit; and an open season of May 15-September 8. Compared to 2022, this is a 1-inch (2.54-cm) increase to the minimum size and a 1-month reduction to the season length. The recommended precautionary default measures are a 16-inch (40.64-cm) minimum size; a 2-fish possession limit; and an open season of June 1-August 31.
Application of the Percent Change Approach and the bio-economic model used to evaluate recreational behavior and catch resulted in a recommended 10-percent reduction in black sea bass harvest in 2023. This is because black sea bass has a very high biomass (more than 150 percent of the target level), and harvest under status quo measures is expected to be above the 2023 RHL. Measures to be implemented by the states and/or regions are expected to achieve the 10-percent harvest reduction.
| Estimated harvest under status quo measure | 80-Percent confidence interval | 2023 RHL | Stock size category | Recommended percent change |
|---|---|---|---|---|
| 7.93 million lb (3,597 mt) | 7.17-8.63 million lb (3,252-3,915 mt) | 6.74 million lb (3,057 mt) | Very High | 10-Percent Reduction. |
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.
NMFS finds that a 15-day comment period for this action provides a reasonable opportunity for public participation in this action pursuant to Administrative Procedure Act section 553(c) (5 U.S.C. 553(c)), while also ensuring that the final recreational management measures are in place before the majority of recreational state fisheries open. Stakeholder and industry groups have been involved with the development of this action and have participated in public meetings throughout the past year. A prolonged comment period and subsequent potential delay in implementation past the start of the recreational fishing season would be contrary to the public interest, as it could create confusion both in the recreational fisheries regarding the management measures, and with state agencies as they prepare and finalize their recreational management measures.
[top] The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) 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.
Entities affected by this action include recreational for-hire operations holding Federal summer flounder, scup, or black sea bass party/charter permits. Individual anglers and for-hire vessels that are only permitted to operate in state waters are not considered "small entities" under the Regulatory Flexibility Act (RFA) and thus economic impacts on private recreational anglers are not discussed here.
Vessel ownership data? 1 were used to identify all individuals who own fishing vessels. Vessels were then grouped according to common owners. The resulting groupings were then treated as entities, or affiliates, for purposes of identifying small and large businesses that may be regulated by this action. A business primarily engaged in fishing is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates) and has combined annual receipts not in excess of $11 million, for all its affiliated operations worldwide.
Footnotes:
1 ?Affiliate data for 2019-2021 were provided by the NMFS NEFSC Social Science Branch. This is the latest affiliate data set available for analysis.
A total of 655 affiliates had a Federal party/charter permit for summer flounder, scup, and or black sea bass during 2019-2021. All of these 655 affiliates were categorized as small businesses based on their average 2019-2021 revenues. Of these, 302 affiliates reported that the majority of their revenues in 2021 came from for-hire fishing. It is not possible to determine what proportion of their revenues came from fishing for an individual species. Nevertheless, given the popularity of summer flounder, scup, and black sea bass as recreational species, revenues generated from these species are likely important for many of these affiliates at certain times of the year.
Data on for-hire revenues associated with individual species are not available. The Northeast Fisheries Science Center (NEFSC) affiliate database suggests that the three year (2019-2021) average annual combined gross receipts for-hire fishing activity for all species combined for all affiliates that held Federal party/charter permits for summer flounder, scup, and/or black sea bass was $46.95 million. Affiliates represent groupings of vessels with common owners. The contribution of summer flounder, scup, and black sea bass to these revenues is unknown.
Summer flounder, scup, and black sea bass are popular recreational species in the mid-Atlantic and southern New England, and revenues generated from these species are likely important for many of these affiliates at certain times of the year. However, it is unlikely that they accounted for most of the $49.65 million in for-hire revenues for the potentially impacted for-hire affiliates.
The entities affected by this action include recreational for-hire operations holding Federal summer flounder, scup, or black sea bass party/charter permits. For-hire revenues are impacted by a variety of factors, including regulations and demand for for-hire trips for summer flounder, scup, black sea bass, and other potential target species; weather; the economy; and other factors. In addition, under similar regulations, recreational harvest of these species is variable. Therefore, it is not possible to accurately quantify the economic impact of the status quo summer flounder regulations or the black sea bass or scup restrictions on for-hire revenues. However, it would generally be expected that for-hire revenues may be similar in 2023 in response to the summer flounder regulations remaining status quo, and slightly decrease in response to the black sea bass and scup reductions, assuming all other factors that impact revenues are unchanged.
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.
This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: March 24, 2023.
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
1. The authority citation for part 648 continues to read as follows:
Authority:
16 U.S.C. 1801 et seq.
2. In §?648.104, revise paragraph (b) to read as follows:
§?648.104 Summer flounder size requirements.
(b) Party/charter permitted vessels and recreational fishery participants. The minimum size for summer flounder is 18-inches (45.72-cm) total length for all vessels that do not qualify for a summer flounder moratorium permit under §?648.4(a)(3), and charter boats holding a summer flounder moratorium permit if fishing with more than three crew members, or party boats holding a summer flounder moratorium permit if fishing with passengers for hire or carrying more than five crew members, unless otherwise specified in the conservation equivalency regulations at §?648.107. If conservation equivalency is not in effect in any given year, possession of smaller (or larger, if applicable) summer flounder harvested from state waters is allowed for state-only permitted vessels when transiting Federal waters within the Block Island Sound Transit Area provided they follow the provisions at §?648.111 and abide by state regulations.
3. In §?648.105, revise text to read as follows:
§?648.105 Summer flounder recreational fishing season.
No person may fish for summer flounder in the EEZ from May 15 through September 22 unless that person is the owner or operator of a fishing vessel issued a commercial summer flounder moratorium permit, or is issued a summer flounder dealer permit, or unless otherwise specified in the conservation equivalency measures at §?648.107. Persons aboard a commercial vessel that is not eligible for a summer flounder moratorium permit are subject to this recreational fishing season. This time period may be adjusted pursuant to the procedures in §?648.102. Possession of summer flounder harvested from state waters during this time is allowed for state-only permitted vessels when transiting Federal waters within the Block Island Sound Transit Area provided they follow the provisions at §?648.111 and abide by state regulations.
4. In §?648.106, revise paragraph (a) to read as follows:
§?648.106 Summer flounder possession restrictions.
[top] (a) Party/charter and recreational possession limits. No person shall possess more than three summer flounder in, or harvested from, the EEZ, per trip unless that person is the owner or operator of a fishing vessel issued a summer flounder moratorium permit, or is issued a summer flounder dealer permit, or unless otherwise specified in the conservation equivalency measures at §?648.107. Persons aboard a commercial vessel that is not eligible for a summer flounder moratorium permit
5. In §?648.107, revise paragraph (a) introductory text to read as follows:
§?648.107 Conservation equivalent measures for the summer flounder fishery.
(a) The Regional Administrator has determined that the recreational fishing measures proposed to be implemented by the states of Maine through North Carolina for 2023 are the conservation equivalent of the season, size limits, and possession limit prescribed in §§?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.
6. Revise §?648.127 to read as follows:
§?648.127 Scup recreational fishing season.
Fishermen and vessels that are not eligible for a scup moratorium permit under §?648.4(a)(6), may possess scup from May 1 through December 31, subject to the possession limit specified in §?648.128(a). The recreational fishing season may be adjusted pursuant to the procedures in §?648.122. Should the recreational fishing season be modified, non-federally permitted scup vessels abiding by state regulations may transit with scup harvested from state waters on board through the Block Island Sound Transit Area following the provisions outlined in §?648.131.
7. In §?648.128, revise paragraph (a) to read as follows:
§?648.128 Scup possession restrictions.
(a) Party/Charter and recreational possession limits. No person shall possess more than 40 scup in, or harvested from, the EEZ per trip unless that person is the owner or operator of a fishing vessel issued a scup moratorium permit, or is issued a scup dealer permit. Persons aboard a commercial vessel that is not eligible for a scup moratorium permit are subject to this possession limit. The owner, operator, and crew of a charter or party boat issued a scup moratorium permit are subject to the possession limit when carrying passengers for hire or when carrying more than five crew members for a party boat, or more than three crew members for a charter boat. This possession limit may be adjusted pursuant to the procedures in §?648.122. However, possession of scup harvested from state waters above this possession limit is allowed for state-only permitted vessels when transiting Federal waters within the Block Island Sound Transit Area provided they follow the provisions at §?648.131 and abide by state regulations.
8. Revise §?648.146 as follows:
§?648.146 Black sea bass recreational fishing season.
Vessels that are not eligible for a black sea bass moratorium permit under §?648.4(a)(7), and fishermen subject to the possession limit specified in §?648.145(a), may only possess black sea bass from May 15 through September 8, unless otherwise specified in the conservation equivalent measures described in §?648.151 or unless this time period is adjusted pursuant to the procedures in §?648.142. However, possession of black sea bass harvested from state waters outside of this season is allowed for state-only permitted vessels when transiting Federal waters within the Block Island Sound Transit Area provided they follow the provisions at §?648.151 and abide by state regulations.
9. In §?648.147, revise paragraph (b) to read as follows:
§?648.147 Black sea bass size requirements.
(b) Party/Charter permitted vessels and recreational fishery participants. The minimum fish size for black sea bass is 15 inches (38.1 cm) total length for all vessels that do not qualify for a black sea bass moratorium permit, and for party boats holding a black sea bass moratorium permit, if fishing with passengers for hire or carrying more than five crew members, and for charter boats holding a black sea bass moratorium permit, if fishing with more than three crew members, unless otherwise specified in the conservation equivalent measures as described in §?648.151. However, possession of smaller black sea bass harvested from state waters is allowed for state-only permitted vessels when transiting Federal waters within the Block Island Sound Transit Area provided they follow the provisions at §?648.151 and abide by state regulations.
10. Revise §?648.151 to read as follows:
§?648.151 Black sea bass conservation equivalency.
(a) The Regional Administrator has determined that the recreational fishing measures proposed to be implemented by the states of Maine through North Carolina for 2023 are the conservation equivalent of the season, size limits, and possession limit prescribed in §§?648.146, 648.147(b), and 648.145(a). This determination is based on a recommendation from the Black Sea Bass Board of the Atlantic States Marine Fisheries Commission.
(1) Federally permitted vessels subject to the recreational fishing measures of this part, and other recreational fishing vessels harvesting black sea bass in or from the EEZ and subject to the recreational fishing measures of this part, landing black sea bass in a state whose fishery management measures are determined by the Regional Administrator to be conservation equivalent shall not be subject to the more restrictive Federal measures, pursuant to the provisions of §?648.4(b). Those vessels shall be subject to the recreational fishing measures implemented by the state in which they land.
(2) [Reserved]
(b) Federally permitted vessels subject to the recreational fishing measures of this part, and other recreational fishing vessels registered in states and subject to the recreational fishing measures of this part, whose fishery management measures are not determined by the Regional Administrator to be the conservation equivalent of the season, size limits and possession limit prescribed in §§?648.146, 648.147(b), and 648.145(a), respectively, due to the lack of, or the reversal of, a conservation-equivalent recommendation from the Black Sea Bass Board of the Atlantic States Marine Fisheries Commission shall be subject to the following precautionary default measures: Season-June 1 through August 31; minimum size-16 inches (40.64 cm); and possession limit-2 fish.
[FR Doc. 2023-06568 Filed 3-29-23; 8:45 am]
BILLING CODE 3510-22-P