Fisheries of the Northeastern United States: 2024 and 2025 Summer Flounder and Scup, and 2024 Black Sea Bass Recreational Management Measures

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

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 once the Council and Commission's makes their recommendation. This action approves conservation equivalency for summer flounder and black sea bass in 2024 and for summer flounder in 2025.

For scup, no changes to the Federal recreational management measures are being implemented. The 2024 and 2025 Federal recreational scup management measures are a 10-inch (25.4-centimeters (cm)) minimum fish size, a 50-fish per person possession limit, and a year-round open season.

Conservation Equivalency

In this final rule, NMFS is implementing conservation equivalency to manage the 2024 and 2025 summer flounder and 2024 black sea bass recreational fisheries, as proposed in the proposed rule published on February 23, 2024 (89 FR 13674). Under conservation equivalency, Federal recreational measures are waived 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 to constrain recreational harvest at a state or regional level that are likely to meet the needs of anglers in each area, as opposed 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 Summer Flounder, Scup, and Black Sea Bass Board (Board) each year. States, through the Commission, are collectively implementing measures designed to constrain landings to the recreational harvest targets. Additional information on the development of these measures is provided in the proposed rule (see 89 FR 13674, February 23, 2024) and not repeated here.

Summer Flounder Recreational Management Measures

On April 4, 2024, the Commission notified NMFS that it had certified that the 2024 and 2025 recreational fishing measures required to be implemented in state waters for summer flounder are, collectively, the conservation equivalent of the season, fish size, and possession limit prescribed in §§ 648.104(b), 648.105, and 648.106(a). Pursuant to § 648.102(d)(2), if conservation equivalency is adopted, vessels subject to the recreational fishing measures are not subject to Federal measures and instead are subject to the recreational fishing measures implemented by the state in which they land. Section 648.107(a) is amended through this final rule to recognize state-implemented measures as the conservation equivalent of the Federal coastwide recreational management measures for 2024 and 2025.

In addition, this action revises the default "non-preferred" summer flounder coastwide measures at §§ 648.104(b), 648.105, and 648.106(a). For 2024 and 2025, the non-preferred coastwide measures are: (1) an 18.5-inch (46.99-cm) minimum fish size; (2) a three-fish per person possession limit; and (3) an open season from May 8 to September 30. 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.

Black Sea Bass Recreational Management Measures

On April 4, 2024, the Commission notified NMFS that it had certified that the 2024 recreational fishing measures required to be implemented in state waters for black sea bass are, collectively, the conservation equivalent of the season, fish size, and possession limit prescribed in §§ 648.145(a), 648.146, and 648.147(b). According to § 648.142(d)(2), if conservation equivalency is adopted, vessels subject to the recreational fishing measures are not subject to Federal measures and instead are subject to the recreational fishing measures implemented by the state in which they land. Section 648.151 is amended through this final rule to recognize state-implemented measures as the conservation equivalent of the Federal coastwide recreational management measures for 2024.

Regulatory Text Correction

The definition of a recreational fishing vessel found at § 648.2 previously only referenced the recreational scup fishery. However, the definition applies to all recreational fisheries. This action corrects this definition, removing the reference to the scup fishery.

Changes From the Proposed Rule

There are no changes from the proposed rule.

Comments and Responses

NMFS received 18 comments on the proposed rule. Comments were received from 15 individuals, the Natural Resources Defense Council (NRDC), the Virginia Beach Charter Captains, and one comment was submitted anonymously. Ten comments focused, in whole or in part, on state measures or commercial management, which were not part of the proposed action and, therefore, are not addressed in the following responses.

NMFS received a comment from the NRDC. Attached to NRDC's comment letter was a copy of the complaint they filed in ongoing litigation on Framework 17 ( NRDC v. Raimondo, No. 23-cv-982 (D.D.C. Aug. 29, 2023)). That legal challenge is fully briefed, and the parties await the court's decision. Given that this litigation is ongoing, NMFS will not address the complaint here. NRDC also incorporated, by reference, its comments on the 2023 summer flounder, scup, and black sea bass recreational measures. Our responses to those comments are provided in the final rule (88 FR 55411, August 15, 2023), and are not repeated here.

Comment 1: A comment from NRDC stated that the proposed rule and Framework 17, on which this proposed rule is based, are inconsistent with the Magnuson-Stevens Fishery Conservation Management Act's (Magnuson-Stevens Act) annual catch limits (ACL) provisions because they allow the Council to manage recreational fishing to new recreational harvest target levels that are not consistent with the ACLs derived from the Science and Statistical Committee's (SSC) recommendations.

Response: The Percent Change Approach has been established by the rulemaking implementing Framework 17 and, as such, must be followed in setting the recreational management measures in this action. Deviating from this approach would require new rulemaking to modify Framework 17, which is beyond the scope of this action. However, as explained in detail in the final rule implementing Framework 17, the new Percent Change Approach is a harvest control rule designed by the Council and Commission for use in managing mid-Atlantic recreational fisheries and 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 the confidence interval (CI) around an estimate of expected harvest under status quo measures with 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 ( i.e., a percentage change in expected harvest).

The Percent Change Approach does not change the process for setting measurable and objective status determination criteria ( e.g., overfishing limit (OFL), acceptable biological catch (ABC), ACL) as required by National Standard 1. The status determination criteria continue to be based on the best available scientific information as determined by the Council's SSC. The Percent Change Approach does not eliminate the recreational ACL or RHL and continues to use both in the process of setting measures and triggering accountability measures (AM). Together, these measures meet the requirements of National Standard 1. The Percent Change Approach is a method for determining the need for, and extent of, recreational fishing measures to prevent overfishing while allowing catch to target optimal yield. This approach attempts to constrain harvest to prevent overfishing while also acknowledging that recreational catch estimates are uncertain and often highly variable (more so than commercial catch estimates). The Percent Change Approach makes incremental adjustments, thus reducing the tendency of management measures to chase after the highs and lows by either liberalizing or restricting measures too much in any given year in reaction to potentially large swings in recreational catch estimates.

The approach also builds in more precaution for stocks at lower biomass levels. Biomass levels and the target are taken directly from the approved and peer-reviewed stock assessments that occur every other year. Consider that when biomass is in decline, the stock often becomes less available to the recreational fishery, and, therefore, catch estimates may decline relative to the RHL. Formerly, management measures would be liberalized, sometimes significantly, while catch fell due to a declining biomass, increasing fishing pressure on a declining stock. Conversely, as healthy stocks increase, sometimes far above the target biomass level, such as the current situations with black sea bass and scup, the fish become more available to the fishery even under restrictive measures, resulting in catch estimates that exceed the RHL. However, what appear to be overages have, in these circumstances, been found to have no negative biological impact on abundant stocks, as NMFS continues to see increases in biomass in a subsequent stock assessment. Therefore, not all overages result in overfishing. For example, black sea bass has not been subject to overfishing in over 10 years despite sustained high recreational catch levels that sometimes exceeded the RHL and the recreational ACL.

Prior to implementing the Percent Change Approach, the method used to determine recreational measures used the same criteria ( i.e., RHL and estimated catch) but did not consider or incorporate stock biomass in determining the extent of changes (whether more liberal or more conservative). The prior method prescribed the same degree of changes to management measures whether a stock biomass was considered overfished ( i.e., less than 50 percent of its maximum sustainable yield target) or over 200 percent of its target level. The Percent Change Approach also considers the estimated harvest compared to the RHL, but, in contrast to the previous approach, also incorporates information about stock status to determine whether, and how much, to either liberalize or restrict management measures. This ensures more conservative responses than the previous method for stocks in lower biomass conditions, while allowing potentially more liberal responses only for stocks at very high biomass levels.

Comment 2: NRDC commented that the recreational harvest target for scup (13.76 million pounds (lb); 6,241 metric tons (mt)) overshoots the 2024 and 2025 RHLs prescribed by the specifications. The NRDC comment also concludes that the total expected scup harvest will exceed the OFL in 2025.

Response: Application of the Percent Change Approach and the Recreational Demand Model (RDM) resulted in a recommendation of a 10-percent reduction in scup harvest in 2024 and 2025. This is because scup has a very high biomass, but harvest under status quo measures is expected to be above the RHL.

Scup is a healthy stock far above the target biomass level, because of the high abundance and availability to the fishery, even under restrictive measures, the catch is likely to exceed the RHL. However, observed recent overages of the scup RHL, ACL, ABC, and even OFL have had no negative biological impact on the stock. The conservation risk of a harvest reduction that is less than what would have previously been applied is negligible for a stock, like scup, that has a very high biomass (over 150 percent of its biomass target). The Magnuson-Stevens Act defines overfishing as a "rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis" (emphasis added) (16 U.S.C. 1802(34)). This scenario, in which a stock continues to maintain biomass significantly above the target, does not constitute overfishing.

Moreover, it is highly unlikely that there will be overfishing of scup when such a determination takes into account both recreational and commercial harvest, and the commercial scup fishery has not come close to harvesting its allocation of the scup ACL in recent years. From 2018 to 2021, the commercial sector only landed between 55 percent and 63 percent of its allocated scup quota, an annual average of 13.42 million lb (6,087 mt) landed. The commercial scup quotas for 2024 and 2025 are 21.15 million lb (9,593 mt) and 18.80 million lb (8,527 mt), respectively, higher than recent commercial landings. In this context, even if there is a recreational harvest above the RHL it is unlikely to result in negative biological consequences for the scup stock, where the overall total of commercial and recreational harvests remains below overfishing levels.

In 2022, the total scup catch did exceed the 2022 OFL. The scup total catch was 35.98 million lb (16,322 mt), compared to the OFL of 32.56 million lb (14,770 mt), corresponding to an 11 percent overage. Although the catch exceeded the OFL and the ABC, the status determination criteria for scup makes use of the annual fishing mortality rate relative to a maximum fishing mortality rate to determine if overfishing has occurred. The 2023 Management Track Assessment estimated fishing mortality rate was 0.171, which is below the fishing mortality rate at maximum sustainable yield (F _MSY ) of 0.19, which means that despite an exceedance of the OFL, there was no overfishing of scup.

Additionally, the estimated biomass (159,050 mt) was estimated to be well above the biomass at maximum sustainable yield (78,593 mt). Despite the overage of the OFL in 2022, the best available science supports the determination that overfishing was not occurring. As seen in 2022 with scup, overages of the OFL do not always correspond to overfishing. The OFL and corresponding catch limits are based on projections from a stock assessment and can prove to be inaccurate when considered retrospectively with the insight of a subsequent stock assessment.

It is also important to again note the uncertainty in estimated recreational harvests. This uncertainty is one of the main drivers for the adoption of the Percent Change Approach in Framework 17. Here, the median coastwide projected 2024-2025 harvest under 2023 measures is 15.29 million lb (6,935 mt), with an 80 percent CI of 14.07-16.29 million lb (6,382-7,389 mt), meaning that, statistically, the estimate can fall anywhere in that range with equal likelihood. With the 10 percent reduction adopted here, the recreational harvest of scup could be anywhere from 12.66 million lb (5,744 mt) to 14.66 million lb (6,650 mt). The average 2024-2025 scup RHL is 12.51 million lb (5,674 mt), which is only about 1 percent below the likely range of scup harvest after the 10 percent reduction is applied. Given the significant uncertainty of both recreational harvest and the specifications themselves, coupled with low risk of overfishing, a 10 percent scup reduction is a reasonable approach. To the extent that biomass remains high but additional reductions are needed the next time that recreational measures are developed, another 10-percent reduction would occur. However, due to the inherent variability and uncertainty in recreational catch data in the context of a very high biomass of scup, more drastic changes to measures could prove to be unwarranted and could lead to the undesirable result of increased recreational discards of dead fish. Scup provides an example of how the gradual approach of adjustments to recreational targets that the Harvest Control Rule provides for abundant stocks can work effectively with little risk of negative consequences to the stock.

Comment 3: One comment expressed concern about the lack of new information on the biomass of black sea bass, three comments noted that the black sea bass stock is very abundant and expanding, and one of these comments noted concerns about the impact of the high abundance of black sea bass on other species.

Response: In December 2023, a research track assessment was completed for black sea bass. Research track assessments are not used to inform management or make official determinations of stock status. In spring 2024, a management track assessment will be conducted for black sea bass, incorporating data through 2023. The results of this assessment will be used to inform specifications and recreational management measures for 2025. Although the research track assessment is not used for official status determinations, the results did indicate that the black sea bass stock is at a very high biomass level and that biomass has been increasing in recent years.

Comment 4: One comment on the summer flounder recreational management measures noted concerns about the minimum size requirement (18.5 inches (46.99 cm)). This commenter suggested that the minimum size should be lower (16.5 inches (41.91 cm)). The lower minimum size was suggested due to concerns about the post-release survival of small summer flounder. The comment noted that most of the fish they encounter are less than the minimum size.

Response: The 18.5-inch (46.99-cm) minimum size is part of the non-preferred coastwide measures. These measures are being waived for 2024 and 2025, as NMFS has approved conservation equivalency. Anglers must adhere to the measures in the state where they land. The minimum size specified for a state or region may differ from the 18.5-inch (46.99-cm) minimum size proposed as part of the non-preferred measures. One benefit of the conservation equivalency approach is that states and regions can tailor recreational management measures to meet the needs of anglers in their state or region, compared to coastwide measures that may be advantageous to anglers in some areas and unnecessarily restrictive in others.

Comment 5: Four comments expressed concern about recreational data. Two comments specifically suggested that new data collection techniques be implemented, such as the development of a reporting application or the use of for-hire vessel trip reports (VTR). One commenter was concerned about the underreporting of recreational catch.

Response: The data used to inform the summer flounder, scup, and black sea bass recreational management measures are the best available data on recreational catch. In addition to Marine Recreational Information Program (MRIP) data, a bioeconomic model, the RDM, was used to estimate harvest. The RDM uses trip attributes such as expected harvest and costs, as well as the availability of different sizes of fish, to estimate the likelihood that an angler will go fishing under a given set of regulations. The RDM is informed by a 2022 survey of anglers from Maine through Virginia as well as recent size distribution information from the stock assessment.

Expanded use of recreational for-hire VTRs may be considered in the future. The Council has initiated an action to consider additional changes to recreational fisheries management, including the consideration of options related to recreational catch accounting, such as private angler reporting and enhanced VTR requirements.

Comment 6: One comment cited concerns about the recreational data, specifically MRIP data and that the recent pilot study that indicates that the current configuration of MRIP may be resulting in effort being overestimated. The comment expressed concern that information from the pilot study was not currently being accepted or used.

Response: This comment correctly points out that NMFS has conducted a pilot study on the recreational Fishing Effort Survey. The preliminary results suggest that the order of the questions in the Fishing Effort Survey may lead to overestimation of fishing effort. However, these are preliminary results and a more robust study to analyze this issue is currently underway. Additional analyses are necessary to confirm findings. Once sufficient information has been collected and the implications of the MRIP estimates are fully understood, that information will be incorporated into the relevant science and management processes.

Comment 7: Two comments opposed more restrictive black sea bass recreational regulations and one comment opposed more restrictive summer flounder recreational regulations. These comments also highlighted the importance of recreational fisheries to the economy.

Response: The 2024 black sea bass measures are the same as those implemented in 2023, no additional restrictions have been implemented.

The 28-percent reduction implemented for summer flounder is based on the results of the Percent Change Approach. Because summer flounder biomass is in the low category and the 2023 management measures were expected to result in an RHL overage, the approach requires a reduction in recreational harvest. It is also important to note that the 2023 management track assessment for summer flounder indicated that overfishing was occurring. Thus, this reduction, in addition to commercial quota reductions, is necessary to ensure that overfishing is ended.

Comment 8: One comment asked if jigging would become illegal for summer flounder, noting that they are a terrible fish to spear.

Response: This action does not ban jigging for summer flounder.

Comment 9: One comment supported the implementation of conservation equivalency.

Response: NMFS agrees, and this action implements conservation equivalency for both summer flounder and black sea bass.

Comment 10: One comment supported the 28-percent harvest reduction for summer flounder, citing their observations of declining recreational catch over the years. An additional comment was supportive of the non-preferred coastwide measures for summer flounder.

Response: NMFS agrees. NMFS has approved conservation equivalency. States and regions have implemented measures consistent with the 28-percent harvest reduction. While the non-preferred coastwide measures have been waived for 2024 and 2025, the measures implemented by the states or regions are equivalent in terms of their conservation benefit.

Classification

Pursuant to section 305(d) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this action is necessary to carry out the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, and its implementing regulations and that this final rule is consistent with the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, other provisions of the Magnuson-Stevens Act, and other applicable law.

The Assistant Administrator for Fisheries, NOAA, finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay of effectiveness period for this rule, to ensure that the final management measures are in place as soon as possible. This action implements 2024 recreational management measures for summer flounder and black sea bass.

NMFS could not publish this final 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 evaluates 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 published on February 23, 2024, with a public comment period open through March 11, 2024. After the comment period closes NMFS, must review, consider, and respond to all comments on the proposed rule and develop the final rule package, which is then subject to further review upon completion. In addition, during the proposed rule development and comment period, the states are developing management measures and submitting that information to the Commission to ensure that the suite of state measures are the conservation equivalent of coastwide Federal measures. The letter confirming conservation equivalent measures from the Commission was received by NMFS on April 4, 2024. Pursuant to §§ 648.102(d)(2)(ii) and 648.142(d)(2)(ii), NMFS cannot finalize conservation equivalency without this information from the Commission. This final rule was submitted to the Department of Commerce Office of General Council on April 9, 2024. Given the time needed to review the recommendations and prepare the Federal rulemaking, and the need to confirm conservation equivalency through the Commission's process, this is the earliest this rule could be published.

The Federal coastwide regulatory measures for recreational summer flounder and black sea bass fishing that were codified last year (88 FR 55411, August 15, 2023) remain in effect until the decision to waive Federal measures for 2024 is made effective by this final rule. Many states have already implemented their conservationally equivalent 2024 measures and a delay in implementing the measures of this rule will increase confusion on what measures are in place in Federal waters. Inconsistencies between the states' measures and the Federal measures could lead to misunderstanding of the applicable regulations and could increase the likelihood of noncompliant landings.

Additionally, the Federal summer flounder measures currently in place are more liberal than many of the measures in state waters. Further delay of the implementation of the 2024 measures will increase the likelihood that the 2024 RHL and recreational ACL will be exceeded. NMFS is required to implement measures to constrain recreational harvest to prevent overfishing.

Unlike actions that require an adjustment period to comply with new rules, this action does not require recreational and charter/party operators to purchase new equipment or otherwise expend time or money to comply with this action's management measures. Rather, compliance with this final rule simply means adhering to the published state management measures for summer flounder and black sea bass while the recreational and charter/party operators are engaged in fishing activities.

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 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.

For these reasons, the Assistant Administrator finds good cause to waive the 30-day delay in the date of effectiveness and to implement this rule upon the date of publication in the Federal Register .

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. NMFS received no comments regarding this certification. Therefore, a final regulatory flexibility analysis was not required and none was prepared.

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

For the reasons set out in the preamble, NMFS amends 50 CFR part 648 as follows:

Part 648 Fisheries of the Northeastern United States