Management Measures for the 2013 Summer Flounder, Scup, and Black Sea Bass

NMFS is implementing management measures for the 2013 summer flounder, scup, and black sea bass recreational fisheries. This rule also implements an increase in the 2013 and 2014 black sea bass specifications, consistent with a new acceptable biological catch recommendation. The implementing regulations for these fisheries require NMFS to publish recreational measures for the fishing year. The intent of these measures is to prevent overfishing of the summer flounder, scup, and black sea bass resources.

Effective June 20, 2013.


ADDRESSES: Copies of the Supplemental Environmental Assessment (SEA) 


for the 2013 recreational management measures document, including the 

Supplemental Environmental Assessment, Regulatory Impact Review, and 

Initial Regulatory Flexibility Analysis (SEA/RIR/IRFA) and other 

supporting documents for the recreational management measures are 

available from Dr. Christopher M. Moore, Executive Director, Mid-

Atlantic Fishery Management Council, Suite 201, 800 North State Street, 

Dover, DE 19901. These documents are also accessible via the Internet 



FOR FURTHER INFORMATION CONTACT: Moira Kelly, Fishery Policy Analyst, 

(978) 281-9218.




General Background


    The summer flounder, scup, and black sea bass fisheries are managed 

cooperatively by the Atlantic States Marine Fisheries Commission 

(Commission) and the Mid-Atlantic Fishery Management Council (Council), 

in consultation with the New England and South Atlantic Fishery 

Management Councils. The FMP and its implementing regulations, which 

are found at 50 CFR part 648, subparts A (general provisions), G 

(summer flounder), H (scup), and I (black sea bass), describe the 

process for specifying annual recreational management measures that 

apply in the Exclusive Economic Zone (EEZ). The states from North 

Carolina to Maine manage these fisheries within 3 nautical miles of 

their coasts, under the Commission's plan for summer flounder, scup, 

and black sea bass. The Federal regulations govern fishing activity in 

the EEZ, as well as vessels possessing Federal permits for summer 

flounder, scup, and/or black sea bass, regardless of where they fish.

    A proposed rule to implement the 2013 Federal recreational measures 

for the summer flounder, scup, and black sea bass recreational 

fisheries was published on April 29, 2013 (78 FR 25052). Additional 

background and information is provided in the preamble to the proposed 

rule and is not repeated here.


2013 and 2014 Black Sea Bass Specifications and 2013 Recreational 

Management Measures


    In this rule, NMFS is implementing management measures for the 2013 

summer flounder, scup, and black sea bass recreational fisheries. This 

rule also implements an increase in the 2013 and 2014 black sea bass 

specifications, consistent with a new acceptable biological catch (ABC) 

recommendation. All minimum fish sizes discussed hereafter 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 



Black Sea Bass Specifications


    The process for establishing specifications was summarized in the 

proposed rule and is not repeated here. At its December 2012 meeting, 

the Council requested that the Scientific and Statistical Committee 

(SSC) revisit the 2013 black sea bass specifications and make a 

recommendation for the 2014 fishing year. On January 23, 2013, the SSC 

met to reconsider these specifications and recommended an increase in 

the specifications for both the 2013 and 2014 fishing years. The SSC 

revised its recommendation for the 2013 and 2014 black sea bass ABC to 

5.5 million lb (2,495 mt). The Council voted at its February 2013 

meeting to recommend that the new ABC be implemented in conjunction 

with the recreational management measures. The following table provides 

the initial specifications for black sea bass for 2013 that were 

established in the specifications final rule (December 31, 2012; 77 FR 

76942) and the revised specifications for 2013 and 2014 that are 

implemented in this rule.


[[Page 37476]]




                                     Table 1--Black Sea Bass Specifications


                                             Original 2013 specifications       New specifications for 2013 and

                                         ------------------------------------         2014  (million lb)


                                             million lb            mt            million lb            mt


ABC.....................................              4.50             2,041              5.50             2,495

Commercial ACL & ACT....................              2.13               966              2.60             1,179

Commercial Quota........................              1.78               805              2.17               986

Recreational ACL & ACT..................              2.37             1,075              2.90             1,315

Recreational Harvest Limit..............              1.85               838              2.26             1,026



    As a result of this increase in the black sea bass catch limits, 

there is a corresponding increase of 25,000 lb (11.3 mt) of black sea 

bass in the available Research Set-Aside (RSA). Of the total 140,000 lb 

(65.5 mt) of black sea bass RSA now available, 129,420 lb (58.7 mt) 

have been awarded. The resulting difference of 10,580 lb (4.8 mt) is 

redistributed to the recreational harvest limit and the commercial 

quota, proportionally based on the sector allocations specified in the 

FMP (i.e., 49 percent to the commercial sector and 51 percent to the 

recreational sector.) Therefore, this rule implements a recreational 

harvest limit of 2,262,929 lb (1,026 mt) and a commercial quota of 

2,174,312 lb (986 mt).


2013 Recreational Management Measures


    This rule implements the following measures that would apply in the 

Federal waters of the EEZ and to all federally permitted party/charter 

vessels with applicable summer flounder, scup, or black sea bass 

permits regardless of where they fish. For summer flounder, use of 

state-by-state conservation equivalency measures, which are the status 

quo measures; for scup, a 10-inch (25.4-cm) minimum fish size, a 30-

fish per person possession limit, and an open season of January 1 

through December 31; and, for black sea bass, a 12.5-inch (31.8-cm) 

minimum fish size, and a 20-fish per person possession limit for open 

seasons of May 19 through October 14 and November 1 through December 


    Federal permit holders are reminded that, as a condition of their 

Federal permit, they must abide by the Federal measures, even if 

fishing in state waters. In addition, in instances where the state-

implemented measures are different than the Federal measures, federally 

permitted vessels must adhere to the more restrictive of the two 

measures. This will be applicable for both the 2013 scup and black sea 

bass recreational fisheries.


Summer Flounder Recreational Management Measures


    This final rule implements the use of conservation equivalency to 

manage the 2013 summer flounder recreational fishery. NMFS implemented 

Framework Adjustment 2 to the FMP on July 29, 2001 (66 FR 36208), to 

permit the use of conservation equivalency to manage the recreational 

summer flounder fishery. Conservation equivalency allows each state to 

establish its own recreational management measures to achieve its state 

harvest limit partitioned from the coastwide recreational harvest limit 

by the Commission. The combined effect of all of the states' management 

measures achieves the same level of conservation as would Federal 

coastwide measures, hence the term conservation equivalency. This means 

that minimum fish sizes, possession limits, and fishing seasons 

developed and adopted by the individual states from Massachusetts to 

North Carolina will replace the Federal waters measures for 2013.

    The Commission notified the NMFS Northeast Regional Administrator 

by letter dated May 14, 2013, that the 2013 summer flounder 

recreational fishery management programs (i.e., minimum fish size, 

possession limit, and fishing seasons) implemented by the states from 

Massachusetts to North Carolina have been reviewed by the Commission's 

Technical Committee and approved by the Commission's Summer Flounder 

Management Board (SF Board). The correspondence indicates that the 

Commission-approved management programs are projected to restrict 2013 

recreational summer flounder coastwide landings consistent with the 

state-specific requirements established by the Technical Committee and 

SF Board through the Commission process.

    Based on the recommendation of the Commission, the NMFS Northeast 

Regional Administrator finds that the recreational summer flounder 

fishing measures proposed to be implemented by the individual states 

for 2013 are the conservation equivalent of the season, minimum size, 

and possession limit prescribed in Sec. Sec.  648.104(b), 648.105, and 

648.106(a), respectively. According to Sec.  648.107(a)(1), vessels 

subject to the recreational fishing measures of this part and landing 

summer flounder in a state with an approved conservation equivalency 

program shall not be subject to Federal measures, and shall instead be 

subject to the recreational fishing measures implemented by the state 

in which they land. Section 648.107(a) has been amended to recognize 

state-implemented measures as conservation equivalent of the coastwide 

recreational management measures for 2013. For clarity, the 2013 summer 

flounder management measures adopted by the individual states vary 

according to the state of landing, as specified in Table 1.


              Table 2--2013 Commission Approved State-by-State Conservation Equivalent Recreational Management Measures for Summer Flounder


                                           Minimum Size      Minimum Size

                 State                       (inches)            (cm)               Possession Limit                         Open Season


Massachusetts.........................               16                40.6  5 fish........................  May 22-September 30.

Rhode Island..........................               18                45.7  8 fish........................  May 1-December 31.

Connecticut...........................               17.5              44.5  5 fish........................  May 15-October 31.

New York..............................               19                48.3  4 fish........................  May 1-September 29.

New Jersey............................               17.5              44.5  5 fish........................  May 18-September 16.


[[Page 37477]]



Delaware..............................               17                43.2  4 fish........................  All Year.

Maryland..............................               16                40.6  4 fish........................  March 28-December 31.

PRFC..................................               16                40.6  4 fish........................  All year.

Virginia..............................               16                40.6  4 fish........................  All year.

North Carolina........................               15                38.1  6 fish........................  All Year.


Note: At 42 designated shore sites in CT, anglers may keep 5 fish at 16.0 inches (40.6 cm), May 15-October 31.


Scup Recreational Management Measures


    This final rule implements the Council and Commission's recommended 

scup recreational management measures for 2013 in Federal waters. The 

2013 scup recreational harvest limit is 7.55 million lb (3,425 mt), as 

published in final rule (December 31, 2012; 77 FR 76942). Estimated 

2012 scup recreational landings are 4.06 million lb (1,842 mt), well 

below the 2013 recreational harvest limit; therefore, no reduction in 

landings is needed. The measures for the 2013 scup recreational fishery 

are for a 10-inch (25.4-cm) minimum fish size, a 30-fish per person 

possession limit, and an open season of January 1 through December 31.


Black Sea Bass Recreational Management Measures


    This final rule implements the Council's recommended recreational 

management measures to reduce landings for black sea bass. The 2013 

black sea bass recreational harvest limit is 2.26 million lb (1,026 

mt). The 2012 recreational harvest limit was 1.32 million lb (599 mt), 

and the projected 2012 recreational landings were 2.99 million lb 

(1,356 mt). The projected 2012 landings are above the 2012 recreational 

harvest limit and both the previously established and the new 

recreational harvest limit for 2013. The Council and the Commission, 

therefore, needed to establish management measures to reduce landings 

in 2013 to a level below the 2013 recreational harvest limit. The 

majority of the recreational black sea bass fishery occurs in state 

waters. As such, the Commission agreed to make more significant changes 

to the state-waters measures to ensure the 2013 recreational harvest 

limit is not exceeded. Specifically, at the December 2012 meeting, the 

available data indicated that the Commission needed to reduce landings 

by 32 percent. However, data corrections and updates to the average 

weight per fish have resulted in the Commission needing to reduce 

landings by 24 percent as compared to 2012. In a letter dated May 16, 

2013, the Commission has indicated that there was a reasonable 

likelihood that the state measures, including the proposed measures for 

Connecticut, would constrain recreational landings to the recreational 

harvest limit.

    In light of the Commission's changes to the state-water measures, 

this final rule implements a 12.5-inch (31.8-cm) minimum fish size and 

20-fish possession limit for open seasons of May 19--October 14 and 

November 1-December 31.


Comments and Responses


    NMFS received one comment regarding the proposed recreational 

management measures and increase to the black sea bass specifications. 

The commenter stated that there was no factual reason for an increase 

in the catch limits and that the catch limits for all three species 

should be reduced by 25 percent to prevent extinction. NMFS disagrees 

with these statements. The catch limits that were established for 

summer flounder and scup in the specifications final rule (December 31, 

2012; 77 FR 76942) and the increase to the black sea bass 

specifications established in this rule are based on the best available 

scientific information and on recommendations of the Council's SSC. 

None of these species is overfished or experiencing overfishing, and, 

therefore, not in danger of extinction.




    The Regional Administrator, Northeast Region, NMFS, determined that 

this final rule implementing the 2013 summer flounder, scup, and black 

sea bass recreational management measures and 2013 and 2014 black sea 

bass specifications is necessary for the conservation and management of 

the summer flounder, scup, and black sea bass fisheries, and is 

consistent with the Magnuson-Stevens Act and other applicable laws.

    This final rule has been determined to be not significant for 

purposes of Executive Order 12866.


Administrative Procedure Act


    The Assistant Administrator for Fisheries, NOAA, has determined 

that there is good cause to waive the requirement for a 30-day delay in 

effectiveness provision of the Administrative Procedure Act, pursuant 

to 5 U.S.C. 553(d)(3). NMFS has determined that a delay in this rule's 

effectiveness would be contrary to the public interest because it would 

undermine the intent of the rule, which is to promote the optimal 

utilization and conservation of the summer flounder, scup, and black 

sea bass resources. This action increases the trip limit for the 

recreational scup fishery in Federal waters and allows federally 

permitted charter/party vessels to be subject to the new, liberalized 

summer flounder measures in their respective states, without resulting 

in overfishing. Because some states' summer flounder fisheries are 

already open or will open during the 30-day period, federally permitted 

charter/party vessels would be restricted to the existing summer 

flounder coastwide regulations (18-inch (45.7-cm) minimum size and a 2-

fish per person possession limit) until the Federal regulations are 

effective. This would unnecessarily disadvantage the federally 

permitted vessels, which would be subject to the more restrictive 

measures while state-licensed vessels could be engaged in fishing 

activities under this year's management measures. In addition, this 

rule increases the possession limit for scup, expanding fishing 

opportunities for fishermen that would otherwise be constrained under 

the current measures, without resulting in overfishing. If the 

effectiveness of this final rule were delayed for 30 days, the fishery 

would likely forego some amount of landings and revenues during the 

delay period. While these restrictions would be alleviated after this 

rule becomes effective, fishermen may be not able to recoup the lost 

economic opportunity of foregone trips that would result from delaying 

the effectiveness of this action.

    For these reasons, the 30-day delay is waived and this rule will 



[[Page 37478]]


effective on the date of filing in the Federal Register.


Final Regulatory Flexibility Analysis


    This final rule includes is the FRFA prepared pursuant to 5 U.S.C. 

604(a). The FRFA incorporates the economic impacts described in the 

IRFA, a summary of the significant issues raised by the public comments 

in response to the IRFA, NMFS's responses to those comments, and a 

summary of the analyses completed to support the action. Copies of the 

EA/RIR/IRFA and SEA are available from the Council and NMFS (see 



Statement of Objective and Need


    A description of the reasons why the 2013 recreational management 

measures for summer flounder, scup, and black sea bass are being 

implemented, and the objectives of and legal basis for this final rule 

implementing both actions are explained in the preambles to the 

proposed rule and this final rule, and are not repeated here.


A Summary of the Significant Issues Raised by the Public Comments in 

Response to the IRFA, a Summary of the Assessment of the Agency of Such 

Issues, and a Statement of Any Changes Made in the Proposed Rule as a 

Result of Such Comments


    One comment was received on the proposed rule; however, it did not 

address the IRFA or economic analysis and did not result in any changes 

to the rule.


Description and Estimate of Number of Small Entities to Which This Rule 

Will Apply


    The recreational management measures could affect any of the 852 

vessels possessing a Federal charter/party permit for summer flounder, 

scup, and/or black sea bass in 2012. However, only 355 vessels reported 

active participation in the 2012 recreational summer flounder, scup, 

and/or black sea bass fisheries, based on Vessel Trip Reports where the 

amount of kept summer flounder, scup, or black sea bass is greater than 

zero on a reported charter/party trip. The Small Business 

Administration (SBA) considers commercial fishing entities (NAICS code 

114111) to be small entities if they have no more than $4 million in 

annual sales, while the size standard for charter/party operators (part 

of NAICS code 487210) is $7 million in sales. Because any vessel at any 

time may be issued an open access charter/party summer flounder, scup, 

and/or black sea bass permit, it is difficult to determine how many 

vessels or owners will participate in this fishery in a given year. 

Although some firms own more than one vessel, available data make it 

difficult to reliably identify ownership control over more than one 

vessel. Thus, all of the entities (fishing vessels) affected by this 

action are considered small entities under the SBA size standards for 

charter/party fishing businesses ($7.0 million in annual gross sales). 

Therefore, there are no disproportionate effects on small versus large 



Description of Projected Reporting, Recordkeeping, and Other Compliance 



    No additional reporting, recordkeeping, or other compliance 

requirements are included in this final rule.


Description of the Steps Taken To Minimize Economic Impact on Small 



    In seeking to minimize the impact of recreational management 

measures (minimum fish size, possession limit, and fishing season) on 

small entities (i.e., Federal party/charter permit holders), NMFS is 

constrained to implementing measures that meet the conservation 

objectives of the FMP and Magnuson-Stevens Act. Management measures 

must provide sufficient constraints on recreational landings, such that 

the established recreational harvest limits have a low likelihood of 

being exceeded, which might lead to overfishing the stock. This rule 

maintains the status quo recreational management measures for summer 

flounder, implements less restrictive management measures for scup, and 

slightly more restrictive measures for black sea bass in Federal 


    Summer flounder alternatives. The alternatives examined by the 

Council and forwarded for consideration by NMFS consisted of the non-

preferred alternative of coastwide measures (an 18-inch (45.7-cm) 

minimum fish size, a 4-fish per person possession limit, and open 

season from May 1 through September 30), and the preferred alternative 

of state-by-state conservation equivalency (see Table 2 for measures) 

with a precautionary default backstop (status quo). These were 

alternatives 1 and 2, respectively, in the Council's SEA/RIR/IRFA. 

These two alternatives were determined by the Council to provide a high 

probability of constraining recreational landings to levels at or below 

the 2013 recreational harvest limit. Therefore, either alternative 

recreational management system could be considered for implementation 

by NMFS, as the critical metric of satisfying the regulatory and 

statutory requirements would likely be met by either.

    Next, NMFS considered the recommendation of both the Council and 

Commission. Both groups recommended implementation of state-by-state 

conservation equivalency, with a precautionary default backstop. The 

recommendations of both groups were not unanimous: Some Council and 

Commission members objected to the use of conservation equivalency, 

stating a preference for coastwide measures.

    For NMFS to disapprove the Council's recommendation for 

conservation equivalency and substitute coastwide management measures, 

NMFS must reasonably demonstrate that the recommended measures are 

either inconsistent with applicable law or that the conservation 

objectives of the FMP will not be achieved by implementing conservation 

equivalency. NMFS does not find the Council and Commission's 

recommendation to be inconsistent with the implementing regulations of 

the FMP at Sec.  648.100 or the Magnuson-Stevens Act, including the 10 

National Standards.

    The additional metric for consideration by NMFS, applicable to the 

FRFA, is examination of the economic impacts of the alternatives on 

small entities consistent with the stated objectives of applicable 

statutes. As previously stated, both coastwide measures (alternative 1) 

and conservation equivalency (alternative 2) are projected to achieve 

the conservation objectives for the 2013 summer flounder recreational 

fishery. However, the economic impacts of the two alternatives are not 

projected to be equal in the Council's analyses: The economic impacts 

on small entities under the coastwide measures management system would 

vary in comparison to the conservation equivalency system, dependent on 

the specific state wherein the small entities operate.

    Quantitative analyses of the economic impacts associated with 

conservation equivalency measures are not available. This is because 

the development of the individual state measures occurs concurrent to 

the NMFS rulemaking process to ensure timely implementation of final 

measures for the 2013 recreational fishery; thus, the specific measures 

implemented by states are not available for economic impact analyses. 

Instead, qualitative methods were utilized by the Council to assess the 

relative impact of conservation equivalency (alternative 2) to 

coastwide measures (alternative 1). The Council analysis concluded, and

NMFS agrees, that conservation equivalency is expected to minimize 

impacts on small entities because individual states can develop 

specific summer flounder management measures that allow the fishery to 

operate during each state's critical fishing periods while still 

achieving conservation goals.

    NMFS is implementing the Council and Commission's recommended 

state-by-state conservation equivalency measures because: (1) NMFS 

finds no compelling reason to disapprove the Council and Commission's 

recommended 2013 management system, as the management measures 

contained in conservation equivalency are projected to provide the 

necessary restriction on recreational landings to prevent the 

recreational harvest limit from being exceeded; and (2) the net 

economic impact to small entities on a coastwide basis are expected to 

be mitigated, to the extent practicable, for a much larger percentage 

of small entities.

    Scup alternatives. NMFS is implementing the Council's preferred 

measures as the Federal water measures for the 2013 fishing year: A 10-

inch (25.4-cm) minimum fish size; a 30-fish per person possession 

limit; and year-round open season. Similar to the summer flounder 

discussion, this suite of scup measures (alternative 2) provides the 

greatest economic opportunity for small entities from the alternatives 

available by providing the maximum fishing opportunity in Federal 

waters that also meets the requirements of the Magnuson-Stevens Act, 

the FMP, and achieves the conservation objectives for 2013. Alternative 

1 for a 10.5-inch (26.7-cm) minimum fish size, 20-fish per person 

possession limit, and year-round open season contained measures that 

had higher impacts on small entities fishing in Federal waters, as it 

contains more restrictive measures than would be necessary to satisfy 

the management objectives, and thus this alternative was not 


    Black sea bass alternatives. As previously stated in the preamble, 

individual states have developed and implemented measures for use in 

state waters. This rule implements the Council's preferred measures 

(Alternative 2 in the Council's SEA/RIR/IRFA): A 12.5-inch (31.8-cm) 

minimum fish size and a 22-fish possession limit for the May 19-October 

14 and November 1-December 31 fishing seasons. This alternative 

provides the greatest associated economic opportunities to small 

entities of the measures considered for Federal waters that also meets 

the statutory and regulatory requirements for the 2013 fishery. 

Alternative 1 (a 12.5-inch (31.8-cm) minimum fish size, a 25-fish per 

person possession limit, and open season of May 19 through October 14 

and November 1 through December 31; and a 12.5-inch (31.8-cm) minimum 

fish size, a 15-fish per person possession limit, and an open season of 

January 1-February 28), does not satisfy the management objectives of 

the FMP, as a reduction in landings as compared to 2012 is necessary, 

and thus this alternative was not implemented.