2024-03507. Fisheries of the Northeastern United States; 2024 and 2025 Summer Flounder and Scup, and 2024 Black Sea Bass Recreational Management Measures

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 summer flounder 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.

DATES:

Comments must be received by March 11, 2024.

ADDRESSES:

You may submit comments on this document, identified by NOAA–NMFS–2024–0020 by the following method:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and type NOAA–NMFS–2024–0020 in the Search box ( note: copying and pasting the FDMS Docket Number directly from this document may not yield search results). 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 https://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 [e-mail].

SUPPLEMENTARY INFORMATION:

Background

The Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (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, NMFS 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 ( i.e., waiving Federal recreational management measures) for both species in 2024 and for summer flounder in 2025. For scup, no adjustments to the Federal recreational management measures are proposed.

Recreational Management Measures Process

Framework Adjustment 17 to the Summer Flounder and Black Sea Bass Fishery Management Plan (FMP) and Framework Adjustment 6 to the Bluefish FMP (March 9, 2023, 88 FR 14499), referred to as the Percent Change Approach, established a new process for determining when recreational management measures ( i.e., possession limits, size limits, and season) should be changed and by what magnitude. The Percent Change Approach uses two factors to determine if management measures could remain status quo, could be liberalized, or must be restricted: (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, which consists 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: (1) minimum and/or maximum fish size; (2) per-angler possession limit; and (3) fishing season. A description of the application of this process for each species is provided below.

The Council and the Summer Flounder, Scup and Black Sea Bass (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.

2024 and 2025 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 recreational scup harvest.

According to the 2023 management stock assessment (using data through 2022), scup is not overfished, and overfishing is not occurring. Scup biomass is 246 percent of the biomass target, which puts scup in the “very high” ( i.e., biomass greater than 150 percent of the target level) biomass category in the Percent Change Approach.

The Recreational Demand Model was used to generate an estimate of expected 2024–2025 harvest under status quo ( i.e., 2023) measures, with an associated 80-percent confidence interval. The median coastwide projected 2024–2025 harvest under 2023 measures is 15.29 million pounds (lb) (6,935 metric ton (mt)), with an 80-percent confidence interval of 14.07–16.29 million lb (6,382–7,389 mt). The average 2024–2025 scup recreational harvest limit (RHL) of 12.51 million lb (5,674 mt) is below the lower bound of the confidence interval around expected harvest.

Table 1—Estimated Scup Harvest, Associated Confidence Interval (CI), 2024–2025 Average RHL, Stock Size Category, and Resulting Percent Change Recommended

Estimated harvest under status quo measure	80-Percent confidence interval	Average 2024–2025 RHL	Stock size category	Recommended percent change
15.29 million lb (6,935 mt)	14.07–16.29 million lb (6,382–7,389 mt)	12.51 million lb (5,674 mt)	Very High	10-Percent Reduction.

In 2023, recreational management measures were implemented to achieve a 10-percent reduction in scup harvest. Preliminary harvest estimates through wave 5 suggest that harvest was approximately 37 percent lower in 2023 than the 2022 harvest through wave 5.

The current Federal recreational scup management measures are a 10-inch (25.4-centimeter (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. We are proposing no changes to the Federal recreational scup management measures for 2024 or 2025. Recreational scup harvest in Federal waters accounts for approximately 5 percent of the total recreational harvest. Because the majority of recreational scup harvest occurs in state waters, the Council and Commission determined that changes to state-waters measures would be the most effective way to achieve the required 10-percent reduction. The current Federal measures, in conjunction with changes to state-waters measures, are projected to achieve the needed 10-percent harvest reduction. The state and Federal measures will remain in place through 2025. Recreational scup measures will be reevaluated prior to the 2026 fishing year.

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.

The Council and Board recommend that either state- or region-specific recreational measures be developed ( i.e., 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 waives 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.

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 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 on 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 2024 and 2025 summer flounder and 2024 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. The Commission will notify 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 Greater Atlantic Regional Fisheries Office certifying that the combination of state and regional measures has met the conservation objectives under Addendum XXXII to the Commission's Interstate FMP. NMFS will publish its determination on 2024 and 2025 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.

2024 and 2025 Summer Flounder Recreational Management Measures

This action proposes adopting conservation equivalency for summer flounder in 2024 and 2025. The non-preferred coastwide measures approved by the Council and Board are: (1) an 18.5-inch (46.99-cm) minimum fish size; (2) a 3-fish per person possession limit; and (3) an open season from May 8–September 30. These coastwide measures will be waived for 2024 and 2025 if conservation equivalency is approved through this action. However, the coastwide measures become the default management measures the year after conservation equivalency expires (in this case, 2026) until the joint process establishes either coastwide or conservation-equivalency measures for the next year.

The 2024 and 2025 precautionary default measures recommended by the Council and Board are identical to those in place for 2021 through 2023: (1) a 20.0-inch (50.8-cm) minimum fish size; (2) a 2-fish per person possession limit; and (3) an open season of July 1–August 31. If a state or region does not submit a conservationally equivalent proposal, or submits a proposal for management measures that do not meet the required level of conservation, the Commission will require the state or region to implement the precautionary default measures.

Application of the Percent Change Approach and the bio-economic model used to evaluate recreational behavior and summer flounder catch results in a required 28-percent reduction in summer flounder harvest.

The Recreational Demand Model was used to generate an estimate of expected 2024–2025 harvest under status quo ( i.e., 2023) measures, with an associated 80-percent confidence interval. Results suggest that under status quo ( i.e., 2023) measures, the median projected harvest in 2024–2025 would be 8.88 million lb (4,027 mt), with an 80-percent confidence interval of 8.10 to 9.48 million lb (3,674–4,300 mt). The 2024–2025 RHL of 6.35 million lb (2,880 mt) is less than the lower bound of this confidence interval ( i.e., harvest is expected to be higher than the RHL).

According to the 2023 management track stock assessment (using data through 2022), summer flounder is below the target stock size ( i.e., estimated at 83 percent of the spawning stock biomass target). This puts summer flounder in the “low” stock size category for the Percent Change Approach. This results in a required percent change in harvest equal to the difference between the harvest estimate and the 2-year average RHL, not to exceed 40 percent. For summer flounder, a 28-percent reduction is required based on the percent difference between the projected harvest of 8.88 million lb (4,027 mt) and the RHL of 6.35 million lb (2,880 mt). The resulting 2024–2025 harvest target is equal to the RHL at 6.35 million lb (2,880 mt).

Table 2—Estimated 2024–2025 Summer Flounder Harvest, Associated Confidence Interval (CI), RHL, Stock Size Category, and Resulting Percent Change Recommended

Estimated harvest under status quo measures *	80-Percent confidence interval	2023 RHL	Stock size category	Recommended percent change
8.88 million lb (4,027 mt)	8.10–9.48 million lb (3,674–4,300 mt)	6.35 million lb (2,880 mt)	Low	28-percent Reduction.

2024 Black Sea Bass Recreational Management Measures

This action proposes the continued adoption of conservation equivalency for black sea bass in 2024. The non-preferred coastwide and precautionary default measures would be the same in 2024 as they were in 2023.

The non-preferred coastwide measures for 2024 include: (1) a 15-inch (38.1-cm) minimum size; (2) a 5-fish possession limit; and (3) a May 15–September 8 open season. The precautionary default measures would be implemented in any state or region that failed to develop adequate measures to constrain landings as required by the conservation-equivalency guidelines. The precautionary default measures in 2024 include: (1) a 16-inch (40.64-cm) minimum size; (2) a 2-fish possession limit; and (3) a June 1–August 31 open season.

Under the Percent Change Approach, recreational measures are intended to be reevaluated every other year, in conjunction with the assessment cycle. The Percent Change Approach uses the biomass from the assessment to partially inform what percent change is required. However, NMFS did not get a new black sea bass stock assessment this year as originally anticipated. A new management track assessment will be available later in 2024, and that will be used to inform 2025 specifications and potential adjustments to recreational management measures. In the absence of a new assessment this year, the Monitoring Committee, Council, and Board recommended maintaining the current 2023 measures through 2024, such that 2024 is treated as “year two” of the management measures. Treating 2024 as the second year in the recreational management cycle and aligning the evaluation of management measures with new assessment information is consistent with the intent of the Percent Change Approach, specifically, to create more stability in measures, and better align management measures with stock status.

Regulatory Text Correction

The definition of a recreational fishing vessel currently references the recreational scup fishery; however, the definition applies to all recreational fisheries. This action corrects this definition, removing the reference to the scup fishery.

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 the 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. NMFS could not publish this proposed rule at an earlier date. The recreational management measure setting process begins after the Council and Board set the annual specifications. The Council's Monitoring Committee evaluate the needed changes in recreational harvest and develop recommendations for coastwide management measures for the Council and Board to consider. At the December 12–14, 2023, meeting the Council and Board voted on recommended recreational management measures. Council staff then prepared and submitted those recommendations to NMFS on January 16, 2024. The proposed rule was submitted to the Department of Commerce Office of General Council on February 8, 2024. Given the time needed to review the recommendations and prepare the Federal rulemaking, this is the earliest this rule could be published.

Additionally, stakeholder and industry groups have been involved with the development of this action and have participated in public meetings throughout the past year. Generally, stakeholders are supportive of the use of conservation equivalency because it allows states, and regions, more flexibility to set measures, instead of one set of coastwide measures that apply to all. 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.

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 party/charter permits for summer flounder, black sea bass, or both species. 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.

A total of 482 affiliates had a Federal party/charter permit for summer flounder, black sea bass, or both species during 2018–2022. All 482 affiliates were categorized as small businesses based on their average 2018–2022 revenues for any species. 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 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.

These 482 small businesses had average total annual revenues of $130,921 during 2020–2022. Their average revenues from recreational for-hire fishing (for a variety of species) were $107,429. Average annual revenues from for-hire fishing ranged from less than $10,000 for 195 affiliates to over $1,000,000 for 8 affiliates. On average, recreational fishing accounted for 85 percent of the total revenues for these 482 small businesses. The contribution of summer flounder and black sea bass to these revenues is unknown.

For-hire revenues are impacted by a variety of factors, including regulations and demand for for-hire trips for summer flounder, black sea bass, and other potential target species, as well as weather, the economy, and other factors. The restrictions proposed for summer flounder to achieve a 28-percent reduction in harvest could result in a decrease in for-hire trips, decreased for-hire revenues, and overall slight-negative impacts to recreational for-hire businesses, assuming all other factors that impact revenues remain unchanged. These impacts would be greater in magnitude for the for-hire businesses that depend more heavily on this species. Given that the state/regional measures for black sea bass are expected to remain unchanged from 2023, no impacts from the proposed action are expected. No changes to Federal recreational scup measures are proposed, therefore no impacts from the proposed Federal action are expected.

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: February 15, 2024.

Samuel D. Rauch, III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 648 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 § 648.2, revise the definition of “Recreational fishing vessel,” to read as follows:

§ 648.2

Definitions.

* * * * *

Recreational fishing vessel, means any vessel from which no fishing other than recreational fishing is conducted. Charter and party boats are considered recreational fishing vessels for purposes of minimum size, season, and possession limit requirements.

* * * * *

3. 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 18.5-inches (46.99-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.

* * * * *

4. In § 648.105, revise introductory paragraph to read as follows:

§ 648.105

Summer flounder recreational fishing season.

No person may fish for summer flounder in the EEZ from October 1 to May 7 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.

5. In § 648.106, revise paragraph (a) to read as follows:

§ 648.106

Summer flounder possession restrictions.

(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 are subject to this possession limit. The owner, operator, and crew of a charter or party boat issued a summer flounder 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 § 648.102. Possession of summer flounder 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 § 648.111 and abide by state regulations.

* * * * *

6. In § 648.107, revise (a) introductory paragraph 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 2024 and 2025 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.

* * * * *

7. In § 648.151, revise (a) introductory paragraph 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 2024 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.

* * * * *

Footnotes

1.  Affiliate data for 2018–2022 were provided by the NMFS Northeast Fisheries Science Center Social Sciences Branch. This is the latest affiliate data set available for analysis.