Final Rule for the 2012 Summer Flounder, Scup, and Black Sea Bass Recreational Fisheries in Federal Waters

The National Marine Fisheries Service (NMFS) implements management measures for the 2012 summer flounder, scup, and black sea bass recreational fisheries in Federal waters. These actions are necessary to comply with regulations implementing the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) and to ensure compliance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Recreational management measures are intended to prevent overfishing the summer flounder, scup, and black sea bass resources in 2012.

Effective May 18, 2012

ADDRESSES: Copies of the Supplemental Environmental Assessment (SEA) for the 2012 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 at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Moira Kelly, Fishery Policy Analyst, (978) 281-9218.

2012 Recreational Management Measures

The 2012 coastwide recreational harvest limits were previously established by a final rule published on April 23, 2012 (77 FR 24151). The 2012 recreational harvest limits are as follows: Summer flounder, 8.76 million lb (3,973 mt); scup, 8.45 million lb (3,833 mt); and black sea bass, 1.32 million lb (599 mt). Recreational harvest limits are the target objectives or ``quotas'' established for the summer flounder, scup, and black sea bass recreational fisheries. The management measures (i.e., minimum fish size requirements, angler possession limits, and fishing seasons) established by this rule are all designed to ensure that recreational landings do not exceed the recreational harvest limits.

This final rule implements management measures that apply in the Federal waters of the EEZ and to all federally permitted party/charter vessels with applicable summer flounder, scup, and/or black sea bass permits, regardless of where they fish during the 2012 fishing year. The management measures established by this rule are as follows: For summer flounder, use of state-by-state conservation equivalency measures, which is the status quo management system; for scup, a 10.5-inch (26.67-cm) minimum fish size, a 20-fish per person possession limit, and a year-round season; and, for black sea bass, a 12.5-in (31.75-cm) minimum fish size, a 25-fish per person possession limit and fishing seasons from May 19-October 14 and November 1-December 31, as well as an open season of January 1 through the end of February that would have a 12.5-in (31.75 cm) minimum fish size and a 15-fish per person possession limit. More detail on these measures is provided in the following sections:

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 2012 scup and black sea bass recreational fisheries.

All minimum fish sizes discussed below are total length measurements of the fish, i.e., the straight-line distance from the tip of the snout to the end of the tail while the fish is lying on its side. For black sea bass, total length measurement does not include the caudal fin tendril. All possession limits discussed below are per person.

Summer Flounder Recreational Management Measures

This final rule implements conservation equivalency as the management approach for the 2012 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 be utilized as the Federal waters measures for 2012.

The Commission notified the NMFS Northeast Regional Administrator by letter dated May 4, 2012, that the 2012 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 2012 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 2012 are the conservation equivalent of the season, minimum size, and possession limit prescribed in Sec. Sec.  648.102, 648.103, and 648.105(a), respectively. 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 2012. For clarity, the 2012 summer flounder management measures adopted by the individual states vary according to the state of landing, as specified in Table 1.

Table 1--2012 Commission Approved State-by-State Conservation Equivalent Recreational Management Measures for

                                                 Summer Flounder

----------------------------------------------------------------------------------------------------------------

                                 Minimum size

             State                 (inches)           Possession limit                    Open season

----------------------------------------------------------------------------------------------------------------

Massachusetts.................            16.5  5 fish......................  May 22-September 30.

Rhode Island..................            18.5  8 fish......................  May 1-December 31.

Connecticut *.................              18  5 fish......................  May 15-October 31.

New York......................            19.5  4 fish......................  May 1-September 30.

New Jersey....................            17.5  5 fish......................  May 5-September 28.

Delaware......................              18  4 fish......................  January 1-October 23.

Maryland......................              17  3 fish......................  April 14-December 16.

PRFC..........................            16.5  4 fish......................  All year.

Virginia......................            16.5  4 fish......................  All year.

North Carolina................              15  6 fish......................  All year.

----------------------------------------------------------------------------------------------------------------

Note: At 44 designated shore sites in CT, anglers may keep 5 fish at 16.0 inches (40.64 cm), May 1-September 30.

Scup Recreational Management Measures

NMFS is implementing the management measures as proposed in the April 30, 2012, proposed rule. These measures are a 10.5-in (26.67-cm) minimum fish size, a 20-fish per person possession limit, and year-round open season (i.e., January 1-December 31). These measures, in conjunction with the regional approach being applied to state waters through the Commission, are expected to constrain landings to the 8.45-million-lb (3,833-mt) recreational harvest limit.

NMFS acknowledges that the Commission will continue managing the recreational scup fishery through a Commission-based conservation equivalency program that has no comparable measures in the Federal FMP. Thus, recreational management measures will differ between state and Federal waters in 2012. Historically, very little of the scup recreational harvest comes from Federal waters.

Black Sea Bass Recreational Management Measures

NMFS is implementing the following measures for Federal waters during the 2012 fishery: A 12.5-in (31.75-cm) minimum fish size and a 15-fish per person possession limit from January 1 through the end of February; and a 12.5-in (31.75-cm) minimum fish size and a 25-fish per person possession limit from May 19-October 14 and from November 1-December 31. Measures for state waters will vary by state. Because the Commission-based measures implemented by the states are different than the Federal water measures, Federal permit holders are required to adhere to the more restrictive set of measures irrespective of whether the vessel is fishing in state or Federal waters. Similarly, private anglers must adhere to the recreational measures implemented by the state in which the fish will be landed as all the state-implemented measures place restrictions on possession as opposed to landings.

For additional information on state-implemented management measures, please contact the marine fisheries management agency for the state in question or the Commission (www.asmfc.org; (703) 842-0740).

Comments and Responses

NMFS received three comments regarding the proposed recreational management measures. All three comments discussed the proposed opening of the recreational black sea bass fishery. Two of the comments requested that NMFS not delay implementing the final rule so that the black sea bass fishery would open on May 19, 2012. One comment requested that NMFS not make the rule effective until after that date. Detailed responses are addressed below.

Comment: The State of Delaware Division of Fish & Wildlife commented that they did not want NMFS to publish the final rule in time to make the Council's recommended May 19, 2012, start date for the recreational black sea bass fishery. Delaware's rulemaking process would not allow them to open state waters on May 19, 2012, which could put federally permitted charter/party vessels home-ported in Delaware at a disadvantage because they could not land their catch in the state until the season is opened in its waters. Delaware claims that this is a violation of National Standard 4 of the Magnuson-Stevens Act.

Response: NMFS disagrees that implementing the Council's recommended measure for the start of the black sea bass fishery is a violation of National Standard 4. Reopening a fishing season is not an allocation or assignment of fishing privileges contemplated by National Standard 4, and does not discriminate between residents of different states. Currently, the Federal regulations prescribe that the black sea bass season starts on May 22. Delaying implementation of this action to satisfy Delaware's request would have negative economic impacts for charter and party boat owners that are home-ported in other states that open the recreational fishing season on May 19. These vessels would be prevented from fishing on their traditional fishing grounds in Federal waters on a weekend (May 19-20) during which a significant amount of recreational fishing is expected to occur. The fact that a uniform coastwide reopening of the black sea bass season in Federal waters has a differing effect among the states is a function of the varied processes these states follow to establish a fishing season. It is not a discriminatory, unfair, or inequitable result imposed by the Federal regulation opening the recreational black sea bass fishery in Federal waters.

Comment: The Recreational Fishing Alliance commented that it supported all of the proposed measures for summer flounder, scup, and black sea bass. The comment expressed concern regarding the opening of the black sea bass fishery and stressed the importance of the additional fishing opportunity that having the rule effective before May 19, 2012, would provide to recreational fishermen.

Response: NMFS agrees that the additional weekend is important for recreational fishermen to take advantage of the increased fishing opportunity recommended by the Council. NMFS has made this rule effective as soon as possible after the close of the proposed rule comment period in an effort to have the fishery open on May 19, 2012.

Comment: One commenter said that he hoped that there would not be a delay in opening the black sea bass fishery beyond May 19. The commenter suggested that if the opening was delayed beyond the Council's recommended start date that NMFS add additional time on to the end of the season.

Response: As noted above, NMFS has made this rule effective as soon as possible after the close of the proposed rule comment period in an effort to have the fishery open on May 19, 2012. If the opening is delayed, however, the Council's recommended black sea bass season, as implemented through this rule, already extends the season in October an additional weekend beyond the status quo, and it would not be appropriate from NMFS to add 3 additional days beyond that.