Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; 2017-2018 Summer Flounder Specifications and Announcement of 2017 Summer Flounder and Black Sea Bass Commercial Accountability Measures, 93842-93850 [2016-30876]

Download as PDF 93842 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations V. Regulatory Flexibility Act A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows: The objective of the rule is to clarify that the use of certain customary contract financing does not require further justification, as it has been determined to be in DoD’s best interest for fixed-price contracts with a period of performance in excess of one year that meet the dollar thresholds in FAR 32.104(d). DoD does not expect this final rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This rule only changes processes that are internal to the Government and does not have any impact on small entities. There were no significant issues raised by the public in response to the initial regulatory flexibility analysis. There is no change to reporting or recordkeeping as a result of this rule. There are no known significant alternative approaches to the rule that would meet the requirements. VI. Paperwork Reduction Act The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). List of Subjects in 48 CFR Part 232 Government procurement. Jennifer L. Hawes, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR part 232 is amended as follows: PART 232—CONTRACT FINANCING 1. The authority citation for part 232 continues to read as follows: ■ Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 2. Add section 232.104 to subpart 232.1 to read as follows: ■ Lhorne on DSK30JT082PROD with RULES 232.104 Providing contract financing. For fixed-price contracts with a period of performance in excess of a year that meet the dollar thresholds established in FAR 32.104(d), and for solicitations expected to result in such contracts, in lieu of the requirement at FAR 32.104(d)(1)(ii) for the contractor to demonstrate actual financial need or the unavailability of private financing, DoD has determined that— VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 (1) The use of customary contract financing (see FAR 32.113), other than loan guarantees and advance payments, is in DoD’s best interest; and (2) Further justification of its use in individual acquisitions is unnecessary. [FR Doc. 2016–30596 Filed 12–21–16; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 161017970–6999–02] RIN 0648–XE976 Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; 2017–2018 Summer Flounder Specifications and Announcement of 2017 Summer Flounder and Black Sea Bass Commercial Accountability Measures National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: In this rule, NMFS issues revised final 2017 and 2018 specifications for the summer flounder fishery, which include commercial and recreational catch limits and prohibit federally permitted commercial fishing vessels from landing summer flounder in Delaware in 2017 due to continued quota repayment from previous years’ overages. NMFS also announces a black sea bass commercial accountability measure that revises the 2017 annual catch target and commercial quota to account for a catch overage in 2015. These actions are necessary to comply with regulations implementing the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, and to ensure compliance with the MagnusonStevens Fishery Conservation and Management Act. The intent of this action is to establish harvest levels and other management measures based on updated scientific information to ensure that summer flounder are not overfished or subject to overfishing in 2017 and 2018, and to enact the catch limit adjustments that are required by the fishery management plan. DATES: Effective January 1, 2017, through December 31, 2018. ADDRESSES: Copies of the specifications document, consisting of a supplemental environmental assessment (SEA), Initial SUMMARY: PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 Regulatory Flexibility Analysis (IRFA), other supporting documents used by the Mid-Atlantic Fishery Management Council and its committees, and the original environmental assessment for the 2016–2018 summer flounder, scup, and black sea bass specifications are available from Dr. Christopher Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 North State Street, Dover, DE 19901. The specifications document is also accessible via the Internet at https:// www.greateratlantic.fisheries.noaa.gov. The Final Regulatory Flexibility Analysis (FRFA) consists of the IRFA, public comments and responses contained in this final rule, and the summary of impacts and alternatives contained in this final rule. Copies of the small entity compliance guide are available from John K. Bullard, Regional Administrator, Greater Atlantic Region, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930–2298. FOR FURTHER INFORMATION CONTACT: Emily Gilbert, Fishery Policy Analyst, (978) 281–9244. SUPPLEMENTARY INFORMATION: Background The Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission cooperatively manage the summer flounder, scup, and black sea bass fisheries. The Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) and its implementing regulations outline the Council’s process for establishing specifications. Specifications in these fisheries include various catch and landing subdivisions, such as the commercial and recreational sector annual catch limits (ACLs), annual catch targets (ACTs), and sectorspecific landing limits (i.e., the commercial fishery quota and recreational harvest limit). Annual specifications may be established for three-year periods, and, in interim years, specifications are reviewed by the Council to ensure previously established multi-year specifications remain appropriate. The FMP and its implementing regulations also outline the Council’s process for establishing specifications. Requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), including the 10 national standards, also apply to specifications. The most recent specifications for summer flounder, scup, and black sea bass fisheries were established in a December 28, 2015, final rule (80 FR E:\FR\FM\22DER1.SGM 22DER1 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations 80689) that set catch limits for all three species for 2016 through 2018. At that time, the 2015 summer flounder stock assessment update indicated that the stock size was declining and that overfishing was occurring in 2014 (see the November 9, 2015, proposed rule, 80 FR 69179, and also the November 15, 2016, proposed rule for this action, 81 FR 80038). The Council and NMFS expected these specifications would end overfishing on summer flounder and allow for stock growth. The background for establishing the 2016–2018 specifications, including the results of the 2015 assessment update, are outlined in the proposed and final rules for the December 2015 specifications rulemaking, and are not repeated here. When recommending those specifications, the Council and its Scientific and Statistical Committee (SSC) requested a stock assessment update in July 2016 to determine if the previously recommended acceptable biological catches (ABCs) and subsequent catch limits remain appropriate for 2017 and 2018. The Council and its SSC reviewed that assessment update when it became available in July 2016. As detailed in the proposed rule (81 FR 80038, November 15, 2016), the 2016 assessment update indicates that overfishing of the summer flounder stock continued through 2015 and the stock has continued its decline. As a result, catch limits need to be lowered to end overfishing and minimize the risk that the stock will become overfished. The assessment update noted that the consistent pattern in both underestimation of fishing mortality and overestimation of spawning stock biomass and recruitment is continuing, even though catches have not substantially exceeded ABC levels. In retrospect, these over and underestimates provided overly optimistic outlooks for the stock and resulted in recommended catch levels that have allowed overfishing to continue, even though catches have not frequently or excessively exceeded catch limits. Stated simply, the information from the latest assessment update made clear that catch advice, including the initial 2016–2018 catch limits, has been set too high. Based on this information regarding the status of the summer flounder stock, as updated to include data from 2015, this final rule revises the previously established summer flounder specifications for the 2017 and 2018 fishing years. Another assessment update will be available next summer, and notice will be provided in the Federal Register on whether the revised 2018 specifications will remain 93843 in place or be further updated based on any new information. NMFS will establish the 2017 recreational management measures (i.e., minimum fish size, possession limits, and fishing seasons) for summer flounder, scup, and black sea bass by publishing proposed and final rules in the Federal Register in late winter/early spring 2017. Revised 2017–2018 Summer Flounder Specifications This rule implements the Council’s revised ABC recommendations and the commercial and recreational catch limits for fishing years 2017 and 2018 (Table 1), as outlined in the proposed rule. As discussed in the proposed rule, the revised 2017 ABC and associated commercial and recreational catch limits are approximately 30 percent lower than those previously established for 2017 ABC. The revised 2018 ABC and associated catch limits are 16 percent lower than those previously established for 2018. These ABC revisions follow the Council’s standard risk policy based on the recalculated overfishing limits (OFLs) recommended by the assessment update. This action makes no other changes to the Federal commercial summer flounder management measures. TABLE 1—SUMMARY OF THE REVISED 2017–2018 SUMMER FLOUNDER SPECIFICATIONS 2016 (current) million lb Lhorne on DSK30JT082PROD with RULES OFL .......................................................... ABC .......................................................... ABC Landings Portion ............................. ABC Discards Portion .............................. Commercial ACL ...................................... Commercial ACT ...................................... Projected Commercial Discards .............. Commercial Quota ................................... Recreational ACL ..................................... Recreational ACT ..................................... Projected Recreational Discards ............. Recreational Harvest Limit ....................... 18.06 16.26 13.54 2.72 9.43 9.43 1.30 8.12 6.84 6.84 1.42 5.42 Table 2 summarizes the commercial summer flounder quotas for each state. As mentioned in the proposed rule, this final rule announces any necessary commercial state quota overage reductions necessary for fishing year 2017. Table 2 includes percent shares as outlined in 50 CFR 648.102(c)(1)(i), the resultant 2017 commercial quotas, quota overages (as needed), and the final VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 2017 million lb mt 8,194 7,375 6,142 1,233 4,275 4,275 590 3,685 3,100 3,100 643 2,457 Frm 00053 Fmt 4700 Sfmt 4700 million lb mt 16.76 11.30 9.43 1.87 6.57 6.57 0.92 5.66 4.72 4.72 0.95 3.77 adjusted 2017 commercial quotas. The 2016 quota overage is determined by comparing landings for January through October 2016, plus any 2015 landings overage that was not previously addressed in the 2016–2018 specifications, for each state. For Delaware, this includes continued repayment of overharvest from previous years. Table 3 presents the initial 2018 PO 00000 2018 7,600 5,125 4,278 847 2,982 2,982 415 2,567 2,143 2,143 432 1,711 18.69 13.23 11.05 2.18 7.70 7.70 1.07 6.63 5.53 5.53 1.11 4.42 mt 8,476 5,999 5,010 989 3,491 3,491 485 3,006 2,508 2,508 504 2,004 quota by state. The 2018 state quota allocations are preliminary and are subject to change if there are overages of states’ quotas carried over from a previous fishing year. Notice of any commercial quota adjustments to account for overages will be published in the Federal Register prior to the start of the 2018 fishing year. E:\FR\FM\22DER1.SGM 22DER1 93844 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations TABLE 2—FINAL STATE-BY-STATE COMMERCIAL SUMMER FLOUNDER QUOTAS FOR 2017 2017 Initial quota FMP percent share State lb Overages through October 31, 2016 kg lb Adjusted 2017 quota, less overages * kg lb kg Maine ........................... New Hampshire ........... Massachusetts ............. Rhode Island ................ Connecticut .................. New York ..................... New Jersey .................. Delaware ...................... Maryland ...................... Virginia ......................... North Carolina .............. 0.04756 0.00046 6.82046 15.68298 2.25708 7.64699 16.72499 0.01779 2.0391 21.31676 27.44584 2,692 26 385,988 887,542 127,734 432,764 946,512 1,007 115,398 1,206,372 1,553,233 1,221 12 175,081 402,582 57,939 196,298 429,331 457 52,344 547,201 704,535 0 0 0 0 0 0 0 ¥49,365 0 0 0 0 0 0 0 0 0 0 ¥22,392 0 0 0 2,692 26 385,988 887,542 127,734 432,764 946,512 ¥48,358 115,398 1,206,372 1,553,233 1,221 12 175,081 402,582 57,939 196,298 429,330 ¥21,935 52,344 547,201 704,535 Total ...................... 100 5,659,266 2,567,000 0 0 5,658,260 2,566,544 Notes: Kilograms are as converted from pounds and may not necessarily add due to rounding. Total quota is the sum for all states with an allocation. A state with a negative number has a 2017 allocation of zero (0). Total adjusted 2017 quota, less overages, does not include negative allocations (i.e., Delaware’s overage). TABLE 3—2018 INITIAL SUMMER FLOUNDER STATE COMMERCIAL QUOTAS FMP percent share State 2018 Quota lb kg Maine ........................................................................................................................................... New Hampshire ........................................................................................................................... Massachusetts ............................................................................................................................. Rhode Island ................................................................................................................................ Connecticut .................................................................................................................................. New York ..................................................................................................................................... New Jersey .................................................................................................................................. Delaware ...................................................................................................................................... Maryland ...................................................................................................................................... Virginia ......................................................................................................................................... North Carolina .............................................................................................................................. 0.04756 0.00046 6.82046 15.68298 2.25708 7.64699 16.72499 0.01779 2.0391 21.31676 27.44584 3,152 30 451,998 1,039,326 149,579 506,773 1,108,381 1,179 135,133 1,412,682 1,818,862 1,430 14 205,023 471,430 67,848 229,868 502,753 535 61,295 640,782 825,022 Total ...................................................................................................................................... 100 6,627,096 3,006,000 Lhorne on DSK30JT082PROD with RULES Delaware Summer Flounder Closure Table 2 shows that, for Delaware, the amount of overharvest from previous years is greater than the amount of commercial quota allocated to Delaware for 2017. As a result, there is no quota available for 2017 in Delaware. The regulations at 50 CFR 648.4(b) provide that Federal permit holders, as a condition of their permit, must not land summer flounder in any state that the NMFS Greater Atlantic Region Administrator has determined no longer has commercial quota available for harvest. Therefore, landings of summer flounder in Delaware by vessels holding commercial Federal summer flounder permits are prohibited for the 2017 calendar year, unless additional quota becomes available through a quota transfer and is announced in the Federal Register. Federally permitted dealers are advised that they may not purchase summer flounder from federally permitted vessels that land in Delaware for the 2017 calendar year, VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 unless additional quota becomes available through a transfer, as mentioned above. Accountability Measure Quota Adjustment Announcements Black Sea Bass Each year, NMFS publishes a notice, either in combination with the specifications final rule or separately, to inform the public and the states of any commercial summer flounder, scup, or black sea bass overages that are deducted from a fishing year’s allocations for the start of the fishing year. This final rule is announcing an 2017 accountability measure for the black sea bass commercial fishery, as required by the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan and in compliance with the regulations at 50 CFR 648.143. In 2015, due to an overage of the commercial quota and higher-thananticipated discards, the commercial fishery exceeded its ACL. The fishery PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 exceeded its 2015 commercial quota by 3.8 percent. However, estimated commercial dead discards of 523.3 mt were much higher than projected (166 mt), accounting for 44.4 percent of the total catch for 2015. We currently estimate that 100 percent of black sea bass caught in trawls and gillnets die post release, with that estimate lowered to 15 percent for black sea bass caught in commercial hook and line and commercial fish pots. In the event that the commercial ACL has been exceeded and the overage cannot be accommodated through the landingsbased accountability measure, the regulations at § 648.143(b) require that the exact amount of the overage, in pounds, be deducted from a subsequent single year’s commercial ACL. The 2017 commercial ACT is reduced by 849,363 lb (385 mt) from 3,148,200 lb (1,428 mt) to 2,298,837 lb (1,043 mt). After estimated commercial discards are removed (436,515 lb; 198 mt), the 2017 commercial quota is 1,862,322 lb (845 mt). E:\FR\FM\22DER1.SGM 22DER1 93845 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations The results of a new black sea bass benchmark stock assessment has undergone peer review and a final report will be available for review by the SSC and the Council later this winter. Should the information provided by this assessment indicate a need to revise the 2017 black sea bass specifications, we will work with the Council to publish a mid-year adjustment in the Federal Register. These accountability measures will be reevaluated based on any information the assessment may provide and any updated 2015 catch information, if available, would be incorporated at that time. The 2017 commercial and recreational black sea bass catch limits are outlined in Table 4. The recreational catch limits are unchanged from the December 2015 rulemaking. TABLE 4—REVISED BLACK SEA BASS published in the Federal Register prior 2017 SPECIFICATIONS FOLLOWING to the start of the 2018 fishing year of ACCOUNTABILITY MEASURE ADJUST- the previously established scup quotas. This notice will include any necessary commercial quota revision or ACL accountability measure should the 2016 scup quota be exceeded. The 2017 commercial and recreational catch limits established in the December 2015 rulemaking are outlined in Table 5. MENTS 2017 million lb Commercial ACL .......... Commercial ACT 1 ........ Projected Commercial Discards .................... Commercial Quota 1 ..... Recreational ACL ......... Recreational ACT ......... Projected Recreational Discards .................... Recreational Harvest Limit ........................... 1 Incorporates mt 3.15 2.30 1,428 1,043 0.44 1.86 3.52 3.52 198 845 1,597 1,597 0.70 317 2.82 1,280 TABLE 5—SCUP 2017 SPECIFICATIONS 2017 million lb Commercial Annual Catch Limit and Annual Catch Target ..... Recreational Annual Catch Limit and Annual Catch Target ..... Commercial Quota ........ Recreational Harvest Limit ........................... reductions for 2015 overages. Scup No commercial scup quota overage is applicable to 2017; therefore, no adjustments to the previously implemented 2017 quota or possession limits are necessary. The 2017 catch limits are repeated in this preamble for ease of reference. Notification will be mt 22.15 10,047 6.25 18.38 2,834 8,337 5.50 2,495 The 2017 scup commercial quota is divided into three commercial fishery quota periods, as outlined in Table 6. TABLE 6—COMMERCIAL SCUP QUOTA ALLOCATIONS FOR 2017 BY QUOTA PERIOD 2017 Initial quota Quota period Percent share lb mt Winter I ........................................................................................................................................ Summer ....................................................................................................................................... Winter II ....................................................................................................................................... 45.11 38.95 15.94 8,291,190 7,158,986 2,929,762 3,761 3,247 1,329 Total ...................................................................................................................................... 100.0 18,379,939 8,337 Note: Metric tons are as converted from pounds and may not necessarily total due to rounding. The quota period possession limits are unchanged from the December 2015 rulemaking. Lhorne on DSK30JT082PROD with RULES Comments and Responses On November 15, 2016, NMFS published the proposed summer flounder specifications for public notice and comment. NMFS received 1,231 comments from individuals, as well as comment letters from the Recreational Fisheries Alliance (RFA), the Jersey Coast Anglers Association, On The Water L.L.C., and the Marine Trades Association of New Jersey. Only the comments relating to the proposed 2017 and 2018 summer flounder specifications, including the analyses used to support them, are responded to below. We received numerous comment letters that mentioned summer flounder recreational management measures. The Council and Commission are currently VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 reviewing necessary 2017 recreational management measures for summer flounder, scup, and black sea bass. Rulemaking for those decisions will occur in a separate action in early spring 2017 and the public can comment on the proposed recreational management recommendations at that time. Many comments relevant to this action used similar language or themes; therefore, the significant issues and concerns have been summarized and responded to here. No changes to the proposed specifications were made as a result of these comments. The specifications are based on the Council’s recommendation which, in turn, was based on the SSC’s advice and application of the Council Risk Policy to the best available scientific information. Comment 1: Many commenters stated that quota cuts are unnecessary because there is an abundance of summer flounder. Some stated they do not PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 believe in the results from the various fishery independent surveys. Response: NMFS disagrees. The prevailing information from the assessment and multiple fish surveys indicate a continual decline in abundance over the past few years. The Northeast Fisheries Science Center (NESFC) performed a summer flounder stock assessment update in June 2016. This update used the peer-reviewed model developed and accepted during the most recent benchmark assessment completed and reviewed during the 57th Stock Assessment Workshop and Stock Assessment Review Committee (SAW/SARC 57). The Council’s SSC used the results of the assessment update in developing its 2017 and 2018 ABC recommendations. Spawning Stock Biomass (SSB) in the assessment update was estimated to be 36,240 mt, based on information through 2015, the most recent complete E:\FR\FM\22DER1.SGM 22DER1 Lhorne on DSK30JT082PROD with RULES 93846 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations year of fishery dependent and independent data. The assessment update indicates that the summer flounder stock, as indicated by SSB, has declined in size each year for the past six years. An extensive survey data set is used in the summer flounder assessment model. These surveys span both state and Federal waters, are conducted at varying times of the year, and provide information on both young-of-the-year (YOY) and adult summer flounder distribution. Surveys include: Age compositions from the NEFSC winter, spring, and fall, Massachusetts spring and fall; Rhode Island fall and monthly fixed; Connecticut spring and fall; Delaware; New York; New Jersey; Virginia Institute of Marine Science (VIMS) surveys. Aggregate indices of stock abundance from the University of Rhode Island trawl survey and NEFSC larval surveys, and recruitment indices (YOY) from surveys conducted by the states of Massachusetts, Delaware, Maryland, and Virginia are also used in the model calibration. The Council’s SSC noted that a downward trend is evident in the majority of these surveys’ stock indices, including recruitment, since 2011. In addition to considering the information on stock abundance, the SSC considered updated information on fishing mortality and recruitment estimates, fishery performance, and risk of depleting the stock to an overfished condition. Based on this evaluation and application of the Council’s Risk Policy, the SSC noted a clear need to reduce catch in 2017 and 2018 from levels previously recommended in order to end overfishing and ensure the stock does not become overfished. The Council considered these recommendations and the SSC’s rationale and agreed, recommending the catch levels being implemented by NMFS in this rule. NMFS acknowledges there is the possibility for potential changes in availability of fish to some surveys and to the fishery as a result of changes in the distribution of the summer flounder population. However, the available information provided by the assessment update deriving biomass estimates from multiple sources indicate the summer flounder stock is, in fact, in decline and in need of further conservation, consistent with the recommendations of the Council and its SSC to end overfishing and to prevent the stock from becoming overfished. Therefore, we are implementing the measures outlined in this rule’s preamble. Comment 2: Many commenters stated that the most recent summer flounder VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 benchmark assessment is outdated and incorrect. While some offered no specifics as to why they believe this to be true, others stated that stock assessment has failed to keep pace with the changes being observed in the stock as it continues to expand and move north and east. Some stated that although summer flounder is one of the best assessed fisheries in the MidAtlantic region, significant and rapid changes are being experienced in the summer flounder stock and the frequency of benchmark assessments has not kept pace. As a result, they cannot support any reductions to the summer flounder ABC until a benchmark assessment is conducted. Response: NMFS agrees that summer flounder is one of the best assessed fisheries in the Mid-Atlantic. Detailed information on the frequency of benchmark, operational, and updates to assessments can be found on the NEFSC Web site at: https://www.nefsc.noaa.gov/ saw/. The 2017 and 2018 summer flounder specifications are based on an update to the 2013 peer-review accepted benchmark assessment model. That is, updated fishery independent survey information (see response to Comment 1) and fishery dependent information (commercial and recreational catch) through 2015 were used to re-run the assessment model to provide updated stock advice for the SSC and Council to consider. While a benchmark assessment typically considers new or alternative modeling approaches and stock assumptions, the core fishery data sets—surveys and catch data—are already very expansive for summer flounder. While it is possible that a benchmark assessment, if developed, may derive a different perception of stock status, NMFS, the Council and its SSC all determined the available information was reliable and appropriate for use, consistent with National Standard 2, to establish the catch limits from which these specifications are derived. Another assessment update is scheduled for 2017, which will provide the opportunity to review the adequacy of the catch limits implemented in this final rule for fishing year 2018. The next benchmark assessment will be scheduled through the Northeast Region Coordinating Council (NRCC). This group, comprised of senior leaders of both the New England and MidAtlantic Councils, the Atlantic States Marine Fisheries Commission, NMFS Greater Atlantic Regional Fisheries Office and the NEFSC, develops an agreed schedule for assessments based on need, available resources, and, PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 importantly, advances in available information. This schedule is reviewed on a biannual basis and updates are considered at those times. There is very little value in developing benchmark assessments if additional information or advances in science have not occurred since the last benchmark was conducted. The NRCC will discuss assessment scheduling in the late spring and fall of 2017. Comment 3: We received comments from 841 people through a form letter stating that new science from Cornell University will help inform a more accurate stock assessment for summer flounder. These commenters mentioned that a new benchmark stock assessment is expected in early 2017, which would replace the out-of-date 2013 assessment that is currently used. They stated that because this new information will provide a more accurate indication of the true health of the fishery, NMFS should delay such a drastic and potentially catastrophic reduction until the new stock assessment, that incorporates the science from Cornell, is complete. Other comments alluded more generally to wanting new information incorporated in the stock assessment. Response: NMFS disagrees and clarifies that the commenters are incorrect regarding a benchmark assessment (see response to Comment 2). There is currently no benchmark stock assessment scheduled for summer flounder in early 2017. Commenters may be confusing this with the black sea bass benchmark assessment that was recently completed and peer-reviewed. The Council’s SSC has requested to review another summer flounder assessment update (i.e., adding 2016 survey and fishing data to the existing assessment model) next summer to review the status of the stock and see if adjustments to the 2018 ABC recommendation should be made. In order for such an assessment to produce new results (e.g., revised biological reference points), new scientific information, such as the final results of the Cornell study, is necessary. Once that information is available, the NRCC may schedule an assessment, as described in response to Comment 2 above. The Council and its SSC, as well as NMFS, are obligated by National Standard 2 of the Magnuson-Stevens Act to make use of the best available scientific information. The current assessment update, incorporating information from the 2015 fishing year, is the best available scientific information. This information informs us that the stock is subject to E:\FR\FM\22DER1.SGM 22DER1 Lhorne on DSK30JT082PROD with RULES Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations overfishing, that projections of fishing mortality have been frequently underestimated while stock and recruitment and biomass projections have been overly optimistic, and that overall the stock is close to an overfished condition. Based on this information, catch reductions are necessary to end overfishing and ensure the stock does not become overfished. If the stock becomes overfished, the Council would be required to establish a formal rebuilding program, as outlined in the Magnuson-Stevens Act. Comment 4: The Jersey Coast Anglers Association stated that SSBmsy (i.e., the stock biomass target) is at too high a level and that the summer flounder fishery would be sustainable even with a much smaller biomass. Response: NMFS disagrees that the SSBmsy biomass target is too high. As previously mentioned, the SSB in the assessment update was estimated to be 36,240 mt, based on information through 2015, the most recent complete year of fishery dependent and independent data. The assessment update indicates that the summer flounder stock, as indicated by SSB, has declined in size each year for the past six years. The update estimated that SSB is at 58 percent of maximum sustainable yield (SSBmsy) and only 16 percent above the minimum stock size threshold (1⁄2 SSBmsy). If SSB estimates fall below this threshold, the stock is considered overfished and must be put into a formal rebuilding program. Comment 5: Ten commenters were supportive of the proposed quota cuts. Some noted that they have noticed a decline in summer flounder abundance in the last few years. Response: NMFS agrees and is implementing the proposed quotas for the reasons outlined in the preamble to this rule. Comment 6: Numerous commenters, including the RFA, recommended that NMFS approve an ABC of 16.26 million lb (7,375 mt) for both years (i.e., the current 2016 ABC). Others recommended maintaining the previously established ABCs for 2017 and 2018. The RFA commented that NMFS is not bound to the same requirement as the Council to develop ACLs that do not exceed the recommendation of its SSC. The RFA also stated that the Council’s risk policy is too precautionary for the summer flounder stock and that it is not in the best interest of the Council or the fishing industry to defer all authority to manage risk to the SSC. The RFA stated that NMFS is able to set 2017 and 2018 summer flounder ABCs that are equal to VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 but not exceeding the OFLs derived in the assessment update. Response: NMFS disagrees that it would be appropriate for the agency to unilaterally implement ABCs that are higher than those recommended by the Council. Section 302(h)(6) of the Magnuson-Stevens Act provides that a Council may not develop ACLs that exceed the ABC recommendations of its SSC. The statute does not explicitly address whether NMFS may establish catch limits in excess of those recommendations. However, it is unnecessary in this instance for NMFS to resolve this question of statutory interpretation, as NMFS has concluded that the Council and its SSC’s recommendations reflect the best available scientific information, and are well-founded and consistent with the requirements of the Magnuson-Stevens Act. NMFS, in reviewing the Council’s recommendations, finds that its SSC did appropriately interpret and make use of the available stock assessment information and the Council’s recommendation to NMFS was based on the ABC advice from the SSC. The SSC’s meeting report (available from the Mid-Atlantic Council at: https://goo.gl/817OeI) indicates a thorough and deliberate process to fully address the terms of reference established for creating ABC advice, including application of the Council’s Risk Policy. The SSC received detailed information on the assessment update and was able to ask direct questions to both Council and NEFSC staff that have familiarity and expertise with the summer flounder assessment and fishery management plan. Moreover, the SSC, in compiling its advice to the Council, noted several substantial concerns about the status of the stock in regards to persistent overfishing, likelihood of the stock becoming overfished if catches are not reduced, and the overall poor status of the stock. Given that there is a very clear record supporting the SSC’s ABC derivation process as well as a clear record that the Council used the SSC recommendations appropriately and consistently with National Standard 2 to meet the intent of National Standard 1 to prevent overfishing, NMFS finds it would be wholly inappropriate in this instance to establish catch limits higher than those recommended by the Council and its SSC. Moreover, setting ABC equal to OFL would remove any consideration of scientific and management uncertainty to the summer flounder stock/fishery. The SSC’s report and the benchmark assessment model outline several sources of uncertainty for the summer flounder stock assessment. As a result, PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 93847 it would be inappropriate for NMFS to assume there is no need to offset ABC from OFL. Comment 7: Many mentioned that the summer flounder recreational harvest limit will be reduced up to 40 percent due to estimated declines in the stock and because the recreational sector is estimated to have exceeded its 2016 harvest limit. They recommended that NMFS assume that the recreational sector met, but did not exceed its recreational harvest of 5.42 million lb (2,458 mt) in 2016. Response: This action will reduce the 2017 recreational harvest limit by approximately 30 percent from the 2016 limit (from 5.42 million lb (2,457 mt) to 3.77 million lb (1,711 mt)). NMFS clarifies that any additional reduction necessary to prevent an overage of the 2017 recreational harvest limit due to estimated 2016 overages will be determined after the end of the 2016 fishing year and announced through rulemaking that will establish the 2017 summer flounder, scup, and black sea bass recreational management measures. Although preliminary Marine Recreational Information Program estimates indicate that 2016 recreational harvest limit overages may necessitate a total reduction closer to 40 percent, this amount is subject to change and may ultimately be greater or less than that amount. As for the suggestion to assume the recreational sector met but did not exceed its recreational harvest limit for 2016, the Council must recommend, and NMFS is required to implement, recreational management measures that will constrain landings to the recreational harvest limit for a given fishing year. If data show that the fishery exceeded its limit in 2016, this informs the Council and NMFS about the extent to which adjustments to recreational management measures are needed to appropriately constrain catch in 2017. The determination of any 2016 overage, and how that will affect 2017 recreational management measures, is outside the scope of this action. A separate notice-and-comment rulemaking for the 2017 recreational summer flounder management measures will be conducted in late winter/early spring of 2017. Comment 8: The majority of commenters mentioned that these catch limit reductions would be very difficult for the fishing industry, particularly the recreational sector, and coastal communities. Some stated that these cuts are occurring with no consideration to the communities who depend on summer flounder fishing for their livelihoods. Others noted their concerns that these cuts would likely drive them E:\FR\FM\22DER1.SGM 22DER1 Lhorne on DSK30JT082PROD with RULES 93848 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations out of business. Some recreational anglers stated they would no longer fish if these cuts resulted in lower bag limits, higher minimum sizes, or shorter seasons. Response: NMFS recognizes that these revised summer flounder catch limits, representing nearly a 30-percent decrease from 2016 catch levels, will result in constrained recreational and commercial fisheries. The Council’s SEA and Regulatory Flexibility Act Analysis provides information on the potential impacts of these reductions for each fishery. As for the recreational fishery, the effects of specific recreational management measures (i.e., bag limits, size limits, and seasonal closures) will be described and analyzed in the action that implements those measures in 2017. The overall potential revenue reduction associated with the 2017 commercial quota reduction is approximately $7.7 million. Catch limits must meet conservation objectives and satisfy applicable Magnuson-Stevens Act requirements to end overfishing and prevent fish stocks from becoming overfished, even if they result in negative economic impacts. The Council selected the ABC recommended by the SSC, which is the highest possible ABC allowed that will end overfishing. The Council based its recommendations for the 2017 and 2018 summer flounder catch limits on the advice of its SSC, which, as explained further in response to previous comments, represents the best scientific information available. Comment 9: One commenter encouraged NMFS to hold more meetings in different areas so that more fishermen could participate. Response: The public had the opportunity to provide comments during the development of the 2017 and 2018 catch limits at the following meetings: • Summer Flounder, Scup, and Black Sea Bass Monitoring Committee Meeting; July 25, 2016 (webinar); • Summer Flounder, Scup, and Black Sea Bass Advisory Panel Meetings; July 29, 2016 (webinar); • Joint Council and Commission meeting to develop 2017 and 2018 catch limit recommendations; August 9, 2016 (Virginia Beach, VA). Additionally, there have been opportunities to comment on the development of 2017 recreational management measures at the following meetings: • Summer Flounder, Scup, and Black Sea Bass Monitoring Committee Meetings; November 9–10, 2016 (Baltimore, MD); VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 • Summer Flounder, Scup, and Black Sea Bass Advisory Panel Meeting; November 17, 2016 (webinar); • Joint Council and Commission meeting to develop 2017 recreational management measure recommendations; December 12–15, 2016 (Baltimore, MD). These meetings are scheduled by the Council, which is responsible for the development of catch recommendations to NMFS. Council-related meetings are generally held annually at similar dates and are accessible through webinar. NMFS encourages interested parties to check the Council’s Web site for information on how to access upcoming meetings (https://www.mafmc.org). Furthermore, the measures of this rule have been subject to public comment through proposed rulemaking, as required under the Administrative Procedure Act. Comment 10: A few commenters noted frustration that overfishing did not occur in their states, either recreationally or commercially, and questioned why fishermen from that state are being punished for overfishing that occurred in other states. Response: In the case of summer flounder, overfishing is not the result of states exceeding individual commercial quotas or recreational targets, but rather results from the coastwide sector allocations being set at a level that is not sustainable for the stock overall. Based on the retrospective patterns in the assessment that have continually underestimated previous years’ fishing mortality and overestimated stock size and recruitment, catch limits have been set at optimistic, higher levels. While catch has largely stayed within these levels, further evaluation indicates that the catch limits themselves for prior years, including 2016 and those previously established for 2017 and 2018, were set too high and overfishing and stock depletion continued as a result. This is why the SSC recommended a substantial reduction for 2017 and 2018 to adjust for and correct this persistent catch setting error and to end the cycle of overfishing. NMFS agrees with the Council’s recommendation based on the ABC advice of its SSC and we are implementing the revised, lower ABCs outlined in the preamble as a result. Comment 11: Numerous commenters implied that the summer flounder management measures are partial to the commercial industry. One issue of particular concern raised by commenters is that the commercial minimum size limit is smaller than those established for the recreational sector. Additionally, some stated the PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 catch limits were allocated unfairly and the commercial fishery’s landings limits should be reduced. Many commented that the commercial fishing industry is negatively affecting the resource more than the recreational sector, particularly with respect to discarding. Many suggestions on commercial management measures were suggested (e.g., prohibit commercial fishing within 10 miles of the coastline, limit the amount of commercial fishing allowed in the winter months around summer flounder spawning grounds, etc.). Response: The Council evaluated the available fishery performance data and decided not to recommend adjusting the commercial minimum summer flounder size or other commercial fishery measures as part of the 2017 and 2018 specifications revision. Because NMFS’ authority is to approve, partially approve, or disapprove Councilrecommended measures, the commenters’ suggestions for changes to the commercial fishery are outside the scope of this action. The Council can consider annual changes to several management measures, including commercial minimum fish size, during its specification setting process that typically occurs at the August meeting. NMFS encourages those with concerns about the commercial fishery voice those issues directly to the Council during the appropriate specifications development cycle in 2017. The Council, working with the Commission, is currently developing a summer flounder amendment that is potentially reviewing state-by-state commercial and sector allocations. NMFS encourages commenters to stay involved with the Council process during this amendment’s development. Other management measures, such as seasonal closures or prohibiting fishing within certain areas, must also be considered through Council and Commission actions and are outside the scope of this action. Comment 12: One commenter mentioned the need for more enforcement, stating that too many people are keeping undersized fish or exceeding their bag limits. Response: NMFS agrees that adequate enforcement is essential to help ensure catch limits are effective and we will continue to work closely with our state partners under our joint enforcement agreements. NMFS encourages people to call the NMFS Office of Law Enforcement’s hotline at (800) 853–1964 if they witness illegal fishing activity. Comment 13: One commenter suggested that observer data be reviewed and the specifications should E:\FR\FM\22DER1.SGM 22DER1 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations Lhorne on DSK30JT082PROD with RULES be updated appropriately following that review. Response: The commercial discard estimates using observer data are included in the annual stock assessment updates that are utilized in deriving OFL recommendations; therefore, observer data have already been reviewed and incorporated into these specifications. Comment 14: Four commenters mentioned concerns over the impact of foreign fishing in U.S. waters and its impact on the summer flounder stock. Response: NMFS agrees that it is important to minimize the impact of foreign fishing vessels in the U.S. Exclusive Economic Zone (EEZ), which is why Congress enacted the MagnusonStevens Act in 1976. The MagnusonStevens Act prohibited foreign fishing within the EEZ, except under special circumstances. There is currently no impact from foreign fishing on summer flounder within the EEZ. Classification The Administrator, Greater Atlantic Region, NMFS, determined that this final rule is necessary for the conservation and management of the summer flounder fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws. 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 specifications are in place on January 1, 2017. This action establishes the final specifications (i.e., annual catch limits) for the summer flounder and the final commercial quota for the black sea bass fishery for the 2017 fishing year, which begins on January 1, 2017. This rule is being issued at the earliest possible date. Preparation of the proposed rule by NMFS was dependent on the submission of the SEA/IRFA in support of the specifications that is developed by the Council. A complete document was received by NMFS in mid-October 2016. Documentation in support of the Council’s recommended specifications is required for NMFS to provide the public with information from the environmental and economic analyses, as required for rulemaking, and to evaluate the consistency of the Council’s recommendation with the Magnuson-Stevens Act and other applicable law. The proposed rule published on November 15, 2016, with a 15-day comment period ending November 30, 2016. Publication of the summer flounder specification at the start of the fishing year that begins January 1 of each fishing year, is VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 required by the order of Judge Robert Doumar in North Carolina Fisheries Association v. Daley. Although there are currently established 2017 commercial and recreational catch limits for summer flounder, fishing at these levels would result in overfishing of the stock. The existing catch limits need to be replaced by the catch limits implemented through this action, which represent a necessary 30-percent reduction. If the 30-day delay in effectiveness is not waived, the catch limit currently in place for the summer flounder fishery on January 1, 2017, will be too high, will be inconsistent with the prevailing scientific advice, and will perpetuate overfishing on the stock in a period of consistently poor recruitment, representing a substantial risk to the stock. Allowing fishing at this level is inconsistent with the Magnuson-Stevens Act, National Standard 1, and National Standard 2. The summer flounder fishery is expected, based on historic participation and harvest patterns, to be very active at the start of the fishing season in 2017. Without these revised specifications in place on January 1, 2017, individual states will not be held to the reduced catch limits and will be unable to set appropriate commercial possession and/or trip limits, which apportion the catch over the entirety of the calendar year. Disproportionately large harvest occurring within the first weeks of 2017 would disadvantage some gear sectors or owners and operators of smaller vessels that typically fish later in the fishing season. It is reasonable to conclude that the commercial fishing fleet possesses sufficient capacity to exceed the established commercial quota for summer flounder before the regulations would become effective, should these updated specifications not be in place on January 1, 2017. Should this occur, the fishing mortality objectives for summer flounder would be compromised, thus undermining the intent of the rule. Additionally, if states are unable to constrain harvest within these revised specifications at the start of the fishing year, resulting in overages in the total 2017 catch limits, these overages will count against the 2018 fishing year limits, further impacting the fishing fleet. Similarly, the commercial fishing fleet could potentially exceed the revised commercial black sea bass catch limit before these specifications would be effective, if not in place by January 1, 2017. To ensure the effectiveness of this required accountability measure, the black sea bass catch limit revision must also be in place before the start of the fishing year. For all of these reasons, a 30-day delay PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 93849 in effectiveness would be contrary to the public interest. Therefore, NMFS is waiving the requirement to ensure the revised summer flounder specifications are in place on January 1, 2017. These specifications are exempt from the procedures of Executive Order 12866. This final rule does not duplicate, conflict, or overlap with any existing Federal rules. A FRFA was prepared pursuant to 5 U.S.C. 604(a), and incorporates the IRFA, a summary of any significant issues raised by the public comments in response to the IRFA and NMFS’s responses to those comments, and a summary of the analyses completed to support the action. A copy of the EA/ IRFA is available from the Council (see ADDRESSES). The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated here. Final Regulatory Flexibility Analysis A Summary of Significant Issues Raised by the Public in Response to the Summary of the Agency’s Assessment of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result Our responses to all of the comments received on the proposed rule, including those that raised significant issues with the proposed action, can be found in the Comments and Responses section of this rule. None of the comments received raised specific issues regarding the economic analyses summarized in the IRFA. As outlined in Comment 9, commenters were generally concerned with the impacts of a 30percent reduction on the fishing industry and shoreside businesses. Most comments were focused on the recreational fishery. Our response to those comments are not repeated here. No changes to the proposed rule were required to be made as a result of public comments. Description and Estimate of Number of Small Entities to Which the Rule Will Apply On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry and $7 million in annual gross receipts for all businesses primarily engaged in for-hire fishing activity (NAICS 11411) for Regulatory Flexibility Act (RFA) compliance purposes only (80 FR 81194, December 29, 2015). The North American Industry E:\FR\FM\22DER1.SGM 22DER1 93850 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations Classification System (NAICS) is the standard used by Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy. The categories of small entities likely to be affected by this action include commercial and charter/party vessel owners holding an active Federal permit for summer flounder, as well as owners of vessels that fish for summer flounder in state waters. The Council estimates that the 2017 and 2018 summer flounder specifications could affect 958 small entities and six large entities, assuming average revenues for the 2013–2015 period. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements No additional reporting, recordkeeping, or other compliance requirements are included in this final rule. Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes Lhorne on DSK30JT082PROD with RULES Specification of commercial quotas and possession limits is constrained by the conservation objectives set forth in the FMP and implemented at 50 CFR part 648 under the authority of the Magnuson-Stevens Act. Economic impacts of changes in year-to-year quota specifications may be offset by adjustments to such measures as commercial fish sizes, changes to mesh sizes, gear restrictions, or possession and trip limits that may increase efficiency or value of the fishery. The Council recommended no such VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 management measure changes, so none are implemented in this final rule. Therefore, the economic impact analysis of the action is evaluated on the different levels of quota specified in the alternatives. The ability of NMFS to minimize economic impacts for this action is constrained by quota levels that provide the maximum availability of fish while still ensuring that the required objectives and directives of the FMP, its implementing regulations, and the Magnuson-Stevens Act are met. In particular, the Council’s SSC has made recommendations for the 2017 and 2018 ABC level for the summer flounder stock designed to end overfishing and foster stock growth. NMFS considers these recommendations to be consistent with National Standard 2 of the Magnuson-Stevens Act, which requires that the best available scientific information be used in fishery decision making. This action sets commercial quotas and recreational harvest limits for the summer flounder fishery for the 2017 and 2018 fishing years that achieve the objectives outlined in the preamble of this rule. The landings limits for 2017 include a commercial quota of 5.66 million lb (2,567 mt) and a recreational harvest limit of 3.77 million lb (1,711 mt). For 2018, the measures include an initial commercial quota of 6.63 million lb (3,006 mt) and a recreational harvest limit of 4.42 million lb (2,004 mt). The only other alternatives considered were the status quo alternatives that are identical to the summer flounder landings limits implemented in December 2015 (i.e., the previously implemented 2017 and 2018 levels). If these specifications remained in place, they would have greater positive socioeconomic impacts than the preferred alternatives. However, these alternatives were not selected as PO 00000 Frm 00060 Fmt 4700 Sfmt 9990 preferred, as they do not address the new scientific information regarding summer flounder stock status, and, therefore, would likely result in overfishing, which would be inconsistent with the FMP, National Standard 1 guidance under the Magnuson-Stevens Act, and the most recent advice of the Council’s SSC. Because these alternatives are inconsistent with the purpose and need of this action, they are not considered further under this analysis. Small Entity Compliance Guide Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as ‘‘small entity compliance guides.’’ The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all holders of Federal permits issued for the summer flounder, scup, and black sea bass fisheries. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from NMFS (see ADDRESSES) and at the following Web site: https:// www.greateratlantic.fisheries.noaa.gov. Authority: 16 U.S.C. 1801 et seq. Dated: December 19, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2016–30876 Filed 12–21–16; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\22DER1.SGM 22DER1

Agencies

[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)]
[Rules and Regulations]
[Pages 93842-93850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30876]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 161017970-6999-02]
RIN 0648-XE976

Fisheries of the Northeastern United States; Summer Flounder,
Scup, and Black Sea Bass Fisheries; 2017-2018 Summer Flounder
Specifications and Announcement of 2017 Summer Flounder and Black Sea
Bass Commercial Accountability Measures

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: In this rule, NMFS issues revised final 2017 and 2018
specifications for the summer flounder fishery, which include
commercial and recreational catch limits and prohibit federally
permitted commercial fishing vessels from landing summer flounder in
Delaware in 2017 due to continued quota repayment from previous years'
overages. NMFS also announces a black sea bass commercial
accountability measure that revises the 2017 annual catch target and
commercial quota to account for a catch overage in 2015. These actions
are necessary to comply with regulations implementing the Summer
Flounder, Scup, and Black Sea Bass Fishery Management Plan, and to
ensure compliance with the Magnuson-Stevens Fishery Conservation and
Management Act. The intent of this action is to establish harvest
levels and other management measures based on updated scientific
information to ensure that summer flounder are not overfished or
subject to overfishing in 2017 and 2018, and to enact the catch limit
adjustments that are required by the fishery management plan.

DATES: Effective January 1, 2017, through December 31, 2018.

ADDRESSES: Copies of the specifications document, consisting of a
supplemental environmental assessment (SEA), Initial Regulatory
Flexibility Analysis (IRFA), other supporting documents used by the
Mid-Atlantic Fishery Management Council and its committees, and the
original environmental assessment for the 2016-2018 summer flounder,
scup, and black sea bass specifications are available from Dr.
Christopher Moore, Executive Director, Mid-Atlantic Fishery Management
Council, Suite 201, 800 North State Street, Dover, DE 19901. The
specifications document is also accessible via the Internet at https://www.greateratlantic.fisheries.noaa.gov. The Final Regulatory
Flexibility Analysis (FRFA) consists of the IRFA, public comments and
responses contained in this final rule, and the summary of impacts and
alternatives contained in this final rule. Copies of the small entity
compliance guide are available from John K. Bullard, Regional
Administrator, Greater Atlantic Region, National Marine Fisheries
Service, 55 Great Republic Drive, Gloucester, MA 01930-2298.

FOR FURTHER INFORMATION CONTACT: Emily Gilbert, Fishery Policy Analyst,
(978) 281-9244.

SUPPLEMENTARY INFORMATION:

Background

The Mid-Atlantic Fishery Management Council and the Atlantic States
Marine Fisheries Commission cooperatively manage the summer flounder,
scup, and black sea bass fisheries. The Summer Flounder, Scup, and
Black Sea Bass Fishery Management Plan (FMP) and its implementing
regulations outline the Council's process for establishing
specifications. Specifications in these fisheries include various catch
and landing subdivisions, such as the commercial and recreational
sector annual catch limits (ACLs), annual catch targets (ACTs), and
sector-specific landing limits (i.e., the commercial fishery quota and
recreational harvest limit). Annual specifications may be established
for three-year periods, and, in interim years, specifications are
reviewed by the Council to ensure previously established multi-year
specifications remain appropriate. The FMP and its implementing
regulations also outline the Council's process for establishing
specifications. Requirements of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act), including the
10 national standards, also apply to specifications.
The most recent specifications for summer flounder, scup, and black
sea bass fisheries were established in a December 28, 2015, final rule
(80 FR

[[Page 93843]]

80689) that set catch limits for all three species for 2016 through
2018. At that time, the 2015 summer flounder stock assessment update
indicated that the stock size was declining and that overfishing was
occurring in 2014 (see the November 9, 2015, proposed rule, 80 FR
69179, and also the November 15, 2016, proposed rule for this action,
81 FR 80038). The Council and NMFS expected these specifications would
end overfishing on summer flounder and allow for stock growth. The
background for establishing the 2016-2018 specifications, including the
results of the 2015 assessment update, are outlined in the proposed and
final rules for the December 2015 specifications rulemaking, and are
not repeated here. When recommending those specifications, the Council
and its Scientific and Statistical Committee (SSC) requested a stock
assessment update in July 2016 to determine if the previously
recommended acceptable biological catches (ABCs) and subsequent catch
limits remain appropriate for 2017 and 2018. The Council and its SSC
reviewed that assessment update when it became available in July 2016.
As detailed in the proposed rule (81 FR 80038, November 15, 2016),
the 2016 assessment update indicates that overfishing of the summer
flounder stock continued through 2015 and the stock has continued its
decline. As a result, catch limits need to be lowered to end
overfishing and minimize the risk that the stock will become
overfished. The assessment update noted that the consistent pattern in
both underestimation of fishing mortality and overestimation of
spawning stock biomass and recruitment is continuing, even though
catches have not substantially exceeded ABC levels. In retrospect,
these over and underestimates provided overly optimistic outlooks for
the stock and resulted in recommended catch levels that have allowed
overfishing to continue, even though catches have not frequently or
excessively exceeded catch limits. Stated simply, the information from
the latest assessment update made clear that catch advice, including
the initial 2016-2018 catch limits, has been set too high. Based on
this information regarding the status of the summer flounder stock, as
updated to include data from 2015, this final rule revises the
previously established summer flounder specifications for the 2017 and
2018 fishing years. Another assessment update will be available next
summer, and notice will be provided in the Federal Register on whether
the revised 2018 specifications will remain in place or be further
updated based on any new information.
NMFS will establish the 2017 recreational management measures
(i.e., minimum fish size, possession limits, and fishing seasons) for
summer flounder, scup, and black sea bass by publishing proposed and
final rules in the Federal Register in late winter/early spring 2017.

Revised 2017-2018 Summer Flounder Specifications

This rule implements the Council's revised ABC recommendations and
the commercial and recreational catch limits for fishing years 2017 and
2018 (Table 1), as outlined in the proposed rule.
As discussed in the proposed rule, the revised 2017 ABC and
associated commercial and recreational catch limits are approximately
30 percent lower than those previously established for 2017 ABC. The
revised 2018 ABC and associated catch limits are 16 percent lower than
those previously established for 2018. These ABC revisions follow the
Council's standard risk policy based on the recalculated overfishing
limits (OFLs) recommended by the assessment update.
This action makes no other changes to the Federal commercial summer
flounder management measures.

Table 1--Summary of the Revised 2017-2018 Summer Flounder Specifications
--------------------------------------------------------------------------------------------------------------------------------------------------------
2016 (current) 2017 2018
-----------------------------------------------------------------------------------------------
million lb mt million lb mt million lb mt
--------------------------------------------------------------------------------------------------------------------------------------------------------
OFL..................................................... 18.06 8,194 16.76 7,600 18.69 8,476
ABC..................................................... 16.26 7,375 11.30 5,125 13.23 5,999
ABC Landings Portion.................................... 13.54 6,142 9.43 4,278 11.05 5,010
ABC Discards Portion.................................... 2.72 1,233 1.87 847 2.18 989
Commercial ACL.......................................... 9.43 4,275 6.57 2,982 7.70 3,491
Commercial ACT.......................................... 9.43 4,275 6.57 2,982 7.70 3,491
Projected Commercial Discards........................... 1.30 590 0.92 415 1.07 485
Commercial Quota........................................ 8.12 3,685 5.66 2,567 6.63 3,006
Recreational ACL........................................ 6.84 3,100 4.72 2,143 5.53 2,508
Recreational ACT........................................ 6.84 3,100 4.72 2,143 5.53 2,508
Projected Recreational Discards......................... 1.42 643 0.95 432 1.11 504
Recreational Harvest Limit.............................. 5.42 2,457 3.77 1,711 4.42 2,004
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 2 summarizes the commercial summer flounder quotas for each
state. As mentioned in the proposed rule, this final rule announces any
necessary commercial state quota overage reductions necessary for
fishing year 2017. Table 2 includes percent shares as outlined in 50
CFR 648.102(c)(1)(i), the resultant 2017 commercial quotas, quota
overages (as needed), and the final adjusted 2017 commercial quotas.
The 2016 quota overage is determined by comparing landings for January
through October 2016, plus any 2015 landings overage that was not
previously addressed in the 2016-2018 specifications, for each state.
For Delaware, this includes continued repayment of overharvest from
previous years. Table 3 presents the initial 2018 quota by state. The
2018 state quota allocations are preliminary and are subject to change
if there are overages of states' quotas carried over from a previous
fishing year. Notice of any commercial quota adjustments to account for
overages will be published in the Federal Register prior to the start
of the 2018 fishing year.

[[Page 93844]]

Table 2--Final State-by-State Commercial Summer Flounder Quotas for 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
2017 Initial quota Overages through October 31, Adjusted 2017 quota, less
FMP percent -------------------------------- 2016 overages *
State share ---------------------------------------------------------------
lb kg lb kg lb kg
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maine................................... 0.04756 2,692 1,221 0 0 2,692 1,221
New Hampshire........................... 0.00046 26 12 0 0 26 12
Massachusetts........................... 6.82046 385,988 175,081 0 0 385,988 175,081
Rhode Island............................ 15.68298 887,542 402,582 0 0 887,542 402,582
Connecticut............................. 2.25708 127,734 57,939 0 0 127,734 57,939
New York................................ 7.64699 432,764 196,298 0 0 432,764 196,298
New Jersey.............................. 16.72499 946,512 429,331 0 0 946,512 429,330
Delaware................................ 0.01779 1,007 457 -49,365 -22,392 -48,358 -21,935
Maryland................................ 2.0391 115,398 52,344 0 0 115,398 52,344
Virginia................................ 21.31676 1,206,372 547,201 0 0 1,206,372 547,201
North Carolina.......................... 27.44584 1,553,233 704,535 0 0 1,553,233 704,535
---------------------------------------------------------------------------------------------------------------
Total............................... 100 5,659,266 2,567,000 0 0 5,658,260 2,566,544
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes: Kilograms are as converted from pounds and may not necessarily add due to rounding. Total quota is the sum for all states with an allocation. A
state with a negative number has a 2017 allocation of zero (0). Total adjusted 2017 quota, less overages, does not include negative allocations (i.e.,
Delaware's overage).

Table 3--2018 Initial Summer Flounder State Commercial Quotas
----------------------------------------------------------------------------------------------------------------
2018 Quota
State FMP percent -------------------------------
share lb kg
----------------------------------------------------------------------------------------------------------------
Maine........................................................... 0.04756 3,152 1,430
New Hampshire................................................... 0.00046 30 14
Massachusetts................................................... 6.82046 451,998 205,023
Rhode Island.................................................... 15.68298 1,039,326 471,430
Connecticut..................................................... 2.25708 149,579 67,848
New York........................................................ 7.64699 506,773 229,868
New Jersey...................................................... 16.72499 1,108,381 502,753
Delaware........................................................ 0.01779 1,179 535
Maryland........................................................ 2.0391 135,133 61,295
Virginia........................................................ 21.31676 1,412,682 640,782
North Carolina.................................................. 27.44584 1,818,862 825,022
-----------------------------------------------
Total....................................................... 100 6,627,096 3,006,000
----------------------------------------------------------------------------------------------------------------

Delaware Summer Flounder Closure

Table 2 shows that, for Delaware, the amount of overharvest from
previous years is greater than the amount of commercial quota allocated
to Delaware for 2017. As a result, there is no quota available for 2017
in Delaware. The regulations at 50 CFR 648.4(b) provide that Federal
permit holders, as a condition of their permit, must not land summer
flounder in any state that the NMFS Greater Atlantic Region
Administrator has determined no longer has commercial quota available
for harvest. Therefore, landings of summer flounder in Delaware by
vessels holding commercial Federal summer flounder permits are
prohibited for the 2017 calendar year, unless additional quota becomes
available through a quota transfer and is announced in the Federal
Register. Federally permitted dealers are advised that they may not
purchase summer flounder from federally permitted vessels that land in
Delaware for the 2017 calendar year, unless additional quota becomes
available through a transfer, as mentioned above.

Accountability Measure Quota Adjustment Announcements

Black Sea Bass

Each year, NMFS publishes a notice, either in combination with the
specifications final rule or separately, to inform the public and the
states of any commercial summer flounder, scup, or black sea bass
overages that are deducted from a fishing year's allocations for the
start of the fishing year. This final rule is announcing an 2017
accountability measure for the black sea bass commercial fishery, as
required by the Summer Flounder, Scup, and Black Sea Bass Fishery
Management Plan and in compliance with the regulations at 50 CFR
648.143.
In 2015, due to an overage of the commercial quota and higher-than-
anticipated discards, the commercial fishery exceeded its ACL. The
fishery exceeded its 2015 commercial quota by 3.8 percent. However,
estimated commercial dead discards of 523.3 mt were much higher than
projected (166 mt), accounting for 44.4 percent of the total catch for
2015. We currently estimate that 100 percent of black sea bass caught
in trawls and gillnets die post release, with that estimate lowered to
15 percent for black sea bass caught in commercial hook and line and
commercial fish pots. In the event that the commercial ACL has been
exceeded and the overage cannot be accommodated through the landings-
based accountability measure, the regulations at Sec. 648.143(b)
require that the exact amount of the overage, in pounds, be deducted
from a subsequent single year's commercial ACL. The 2017 commercial ACT
is reduced by 849,363 lb (385 mt) from 3,148,200 lb (1,428 mt) to
2,298,837 lb (1,043 mt). After estimated commercial discards are
removed (436,515 lb; 198 mt), the 2017 commercial quota is 1,862,322 lb
(845 mt).

[[Page 93845]]

The results of a new black sea bass benchmark stock assessment has
undergone peer review and a final report will be available for review
by the SSC and the Council later this winter. Should the information
provided by this assessment indicate a need to revise the 2017 black
sea bass specifications, we will work with the Council to publish a
mid-year adjustment in the Federal Register. These accountability
measures will be reevaluated based on any information the assessment
may provide and any updated 2015 catch information, if available, would
be incorporated at that time.
The 2017 commercial and recreational black sea bass catch limits
are outlined in Table 4. The recreational catch limits are unchanged
from the December 2015 rulemaking.

Table 4--Revised Black Sea Bass 2017 Specifications Following
Accountability Measure Adjustments
------------------------------------------------------------------------
2017
-------------------
million
lb mt
------------------------------------------------------------------------
Commercial ACL...................................... 3.15 1,428
Commercial ACT \1\.................................. 2.30 1,043
Projected Commercial Discards....................... 0.44 198
Commercial Quota \1\................................ 1.86 845
Recreational ACL.................................... 3.52 1,597
Recreational ACT.................................... 3.52 1,597
Projected Recreational Discards..................... 0.70 317
Recreational Harvest Limit.......................... 2.82 1,280
------------------------------------------------------------------------
\1\ Incorporates reductions for 2015 overages.

Scup

No commercial scup quota overage is applicable to 2017; therefore,
no adjustments to the previously implemented 2017 quota or possession
limits are necessary. The 2017 catch limits are repeated in this
preamble for ease of reference. Notification will be published in the
Federal Register prior to the start of the 2018 fishing year of the
previously established scup quotas. This notice will include any
necessary commercial quota revision or ACL accountability measure
should the 2016 scup quota be exceeded.
The 2017 commercial and recreational catch limits established in
the December 2015 rulemaking are outlined in Table 5.

Table 5--Scup 2017 Specifications
------------------------------------------------------------------------
2017
-------------------
million
lb mt
------------------------------------------------------------------------
Commercial Annual Catch Limit and Annual Catch 22.15 10,047
Target.............................................
Recreational Annual Catch Limit and Annual Catch 6.25 2,834
Target.............................................
Commercial Quota.................................... 18.38 8,337
Recreational Harvest Limit.......................... 5.50 2,495
------------------------------------------------------------------------

The 2017 scup commercial quota is divided into three commercial
fishery quota periods, as outlined in Table 6.

Table 6--Commercial Scup Quota Allocations for 2017 by Quota Period
----------------------------------------------------------------------------------------------------------------
2017 Initial quota
Quota period Percent share -------------------------------
lb mt
----------------------------------------------------------------------------------------------------------------
Winter I........................................................ 45.11 8,291,190 3,761
Summer.......................................................... 38.95 7,158,986 3,247
Winter II....................................................... 15.94 2,929,762 1,329
-----------------------------------------------
Total....................................................... 100.0 18,379,939 8,337
----------------------------------------------------------------------------------------------------------------
Note: Metric tons are as converted from pounds and may not necessarily total due to rounding.

The quota period possession limits are unchanged from the December
2015 rulemaking.

Comments and Responses

On November 15, 2016, NMFS published the proposed summer flounder
specifications for public notice and comment. NMFS received 1,231
comments from individuals, as well as comment letters from the
Recreational Fisheries Alliance (RFA), the Jersey Coast Anglers
Association, On The Water L.L.C., and the Marine Trades Association of
New Jersey. Only the comments relating to the proposed 2017 and 2018
summer flounder specifications, including the analyses used to support
them, are responded to below.
We received numerous comment letters that mentioned summer flounder
recreational management measures. The Council and Commission are
currently reviewing necessary 2017 recreational management measures for
summer flounder, scup, and black sea bass. Rulemaking for those
decisions will occur in a separate action in early spring 2017 and the
public can comment on the proposed recreational management
recommendations at that time.
Many comments relevant to this action used similar language or
themes; therefore, the significant issues and concerns have been
summarized and responded to here. No changes to the proposed
specifications were made as a result of these comments. The
specifications are based on the Council's recommendation which, in
turn, was based on the SSC's advice and application of the Council Risk
Policy to the best available scientific information.
Comment 1: Many commenters stated that quota cuts are unnecessary
because there is an abundance of summer flounder. Some stated they do
not believe in the results from the various fishery independent
surveys.
Response: NMFS disagrees. The prevailing information from the
assessment and multiple fish surveys indicate a continual decline in
abundance over the past few years. The Northeast Fisheries Science
Center (NESFC) performed a summer flounder stock assessment update in
June 2016. This update used the peer-reviewed model developed and
accepted during the most recent benchmark assessment completed and
reviewed during the 57th Stock Assessment Workshop and Stock Assessment
Review Committee (SAW/SARC 57). The Council's SSC used the results of
the assessment update in developing its 2017 and 2018 ABC
recommendations.
Spawning Stock Biomass (SSB) in the assessment update was estimated
to be 36,240 mt, based on information through 2015, the most recent
complete

[[Page 93846]]

year of fishery dependent and independent data. The assessment update
indicates that the summer flounder stock, as indicated by SSB, has
declined in size each year for the past six years.
An extensive survey data set is used in the summer flounder
assessment model. These surveys span both state and Federal waters, are
conducted at varying times of the year, and provide information on both
young-of-the-year (YOY) and adult summer flounder distribution. Surveys
include: Age compositions from the NEFSC winter, spring, and fall,
Massachusetts spring and fall; Rhode Island fall and monthly fixed;
Connecticut spring and fall; Delaware; New York; New Jersey; Virginia
Institute of Marine Science (VIMS) surveys. Aggregate indices of stock
abundance from the University of Rhode Island trawl survey and NEFSC
larval surveys, and recruitment indices (YOY) from surveys conducted by
the states of Massachusetts, Delaware, Maryland, and Virginia are also
used in the model calibration.
The Council's SSC noted that a downward trend is evident in the
majority of these surveys' stock indices, including recruitment, since
2011. In addition to considering the information on stock abundance,
the SSC considered updated information on fishing mortality and
recruitment estimates, fishery performance, and risk of depleting the
stock to an overfished condition. Based on this evaluation and
application of the Council's Risk Policy, the SSC noted a clear need to
reduce catch in 2017 and 2018 from levels previously recommended in
order to end overfishing and ensure the stock does not become
overfished. The Council considered these recommendations and the SSC's
rationale and agreed, recommending the catch levels being implemented
by NMFS in this rule.
NMFS acknowledges there is the possibility for potential changes in
availability of fish to some surveys and to the fishery as a result of
changes in the distribution of the summer flounder population. However,
the available information provided by the assessment update deriving
biomass estimates from multiple sources indicate the summer flounder
stock is, in fact, in decline and in need of further conservation,
consistent with the recommendations of the Council and its SSC to end
overfishing and to prevent the stock from becoming overfished.
Therefore, we are implementing the measures outlined in this rule's
preamble.
Comment 2: Many commenters stated that the most recent summer
flounder benchmark assessment is outdated and incorrect. While some
offered no specifics as to why they believe this to be true, others
stated that stock assessment has failed to keep pace with the changes
being observed in the stock as it continues to expand and move north
and east. Some stated that although summer flounder is one of the best
assessed fisheries in the Mid-Atlantic region, significant and rapid
changes are being experienced in the summer flounder stock and the
frequency of benchmark assessments has not kept pace. As a result, they
cannot support any reductions to the summer flounder ABC until a
benchmark assessment is conducted.
Response: NMFS agrees that summer flounder is one of the best
assessed fisheries in the Mid-Atlantic. Detailed information on the
frequency of benchmark, operational, and updates to assessments can be
found on the NEFSC Web site at: https://www.nefsc.noaa.gov/saw/.
The 2017 and 2018 summer flounder specifications are based on an
update to the 2013 peer-review accepted benchmark assessment model.
That is, updated fishery independent survey information (see response
to Comment 1) and fishery dependent information (commercial and
recreational catch) through 2015 were used to re-run the assessment
model to provide updated stock advice for the SSC and Council to
consider. While a benchmark assessment typically considers new or
alternative modeling approaches and stock assumptions, the core fishery
data sets--surveys and catch data--are already very expansive for
summer flounder.
While it is possible that a benchmark assessment, if developed, may
derive a different perception of stock status, NMFS, the Council and
its SSC all determined the available information was reliable and
appropriate for use, consistent with National Standard 2, to establish
the catch limits from which these specifications are derived. Another
assessment update is scheduled for 2017, which will provide the
opportunity to review the adequacy of the catch limits implemented in
this final rule for fishing year 2018.
The next benchmark assessment will be scheduled through the
Northeast Region Coordinating Council (NRCC). This group, comprised of
senior leaders of both the New England and Mid-Atlantic Councils, the
Atlantic States Marine Fisheries Commission, NMFS Greater Atlantic
Regional Fisheries Office and the NEFSC, develops an agreed schedule
for assessments based on need, available resources, and, importantly,
advances in available information. This schedule is reviewed on a
biannual basis and updates are considered at those times. There is very
little value in developing benchmark assessments if additional
information or advances in science have not occurred since the last
benchmark was conducted. The NRCC will discuss assessment scheduling in
the late spring and fall of 2017.
Comment 3: We received comments from 841 people through a form
letter stating that new science from Cornell University will help
inform a more accurate stock assessment for summer flounder. These
commenters mentioned that a new benchmark stock assessment is expected
in early 2017, which would replace the out-of-date 2013 assessment that
is currently used. They stated that because this new information will
provide a more accurate indication of the true health of the fishery,
NMFS should delay such a drastic and potentially catastrophic reduction
until the new stock assessment, that incorporates the science from
Cornell, is complete. Other comments alluded more generally to wanting
new information incorporated in the stock assessment.
Response: NMFS disagrees and clarifies that the commenters are
incorrect regarding a benchmark assessment (see response to Comment 2).
There is currently no benchmark stock assessment scheduled for summer
flounder in early 2017. Commenters may be confusing this with the black
sea bass benchmark assessment that was recently completed and peer-
reviewed. The Council's SSC has requested to review another summer
flounder assessment update (i.e., adding 2016 survey and fishing data
to the existing assessment model) next summer to review the status of
the stock and see if adjustments to the 2018 ABC recommendation should
be made. In order for such an assessment to produce new results (e.g.,
revised biological reference points), new scientific information, such
as the final results of the Cornell study, is necessary. Once that
information is available, the NRCC may schedule an assessment, as
described in response to Comment 2 above.
The Council and its SSC, as well as NMFS, are obligated by National
Standard 2 of the Magnuson-Stevens Act to make use of the best
available scientific information. The current assessment update,
incorporating information from the 2015 fishing year, is the best
available scientific information. This information informs us that the
stock is subject to

[[Page 93847]]

overfishing, that projections of fishing mortality have been frequently
underestimated while stock and recruitment and biomass projections have
been overly optimistic, and that overall the stock is close to an
overfished condition. Based on this information, catch reductions are
necessary to end overfishing and ensure the stock does not become
overfished. If the stock becomes overfished, the Council would be
required to establish a formal rebuilding program, as outlined in the
Magnuson-Stevens Act.
Comment 4: The Jersey Coast Anglers Association stated that
SSBmsy (i.e., the stock biomass target) is at too high a
level and that the summer flounder fishery would be sustainable even
with a much smaller biomass.
Response: NMFS disagrees that the SSBmsy biomass target
is too high. As previously mentioned, the SSB in the assessment update
was estimated to be 36,240 mt, based on information through 2015, the
most recent complete year of fishery dependent and independent data.
The assessment update indicates that the summer flounder stock, as
indicated by SSB, has declined in size each year for the past six
years. The update estimated that SSB is at 58 percent of maximum
sustainable yield (SSBmsy) and only 16 percent above the
minimum stock size threshold (\1/2\ SSBmsy). If SSB
estimates fall below this threshold, the stock is considered overfished
and must be put into a formal rebuilding program.
Comment 5: Ten commenters were supportive of the proposed quota
cuts. Some noted that they have noticed a decline in summer flounder
abundance in the last few years.
Response: NMFS agrees and is implementing the proposed quotas for
the reasons outlined in the preamble to this rule.
Comment 6: Numerous commenters, including the RFA, recommended that
NMFS approve an ABC of 16.26 million lb (7,375 mt) for both years
(i.e., the current 2016 ABC). Others recommended maintaining the
previously established ABCs for 2017 and 2018. The RFA commented that
NMFS is not bound to the same requirement as the Council to develop
ACLs that do not exceed the recommendation of its SSC. The RFA also
stated that the Council's risk policy is too precautionary for the
summer flounder stock and that it is not in the best interest of the
Council or the fishing industry to defer all authority to manage risk
to the SSC. The RFA stated that NMFS is able to set 2017 and 2018
summer flounder ABCs that are equal to but not exceeding the OFLs
derived in the assessment update.
Response: NMFS disagrees that it would be appropriate for the
agency to unilaterally implement ABCs that are higher than those
recommended by the Council. Section 302(h)(6) of the Magnuson-Stevens
Act provides that a Council may not develop ACLs that exceed the ABC
recommendations of its SSC. The statute does not explicitly address
whether NMFS may establish catch limits in excess of those
recommendations. However, it is unnecessary in this instance for NMFS
to resolve this question of statutory interpretation, as NMFS has
concluded that the Council and its SSC's recommendations reflect the
best available scientific information, and are well-founded and
consistent with the requirements of the Magnuson-Stevens Act. NMFS, in
reviewing the Council's recommendations, finds that its SSC did
appropriately interpret and make use of the available stock assessment
information and the Council's recommendation to NMFS was based on the
ABC advice from the SSC.
The SSC's meeting report (available from the Mid-Atlantic Council
at: https://goo.gl/817OeI) indicates a thorough and deliberate process
to fully address the terms of reference established for creating ABC
advice, including application of the Council's Risk Policy. The SSC
received detailed information on the assessment update and was able to
ask direct questions to both Council and NEFSC staff that have
familiarity and expertise with the summer flounder assessment and
fishery management plan. Moreover, the SSC, in compiling its advice to
the Council, noted several substantial concerns about the status of the
stock in regards to persistent overfishing, likelihood of the stock
becoming overfished if catches are not reduced, and the overall poor
status of the stock.
Given that there is a very clear record supporting the SSC's ABC
derivation process as well as a clear record that the Council used the
SSC recommendations appropriately and consistently with National
Standard 2 to meet the intent of National Standard 1 to prevent
overfishing, NMFS finds it would be wholly inappropriate in this
instance to establish catch limits higher than those recommended by the
Council and its SSC. Moreover, setting ABC equal to OFL would remove
any consideration of scientific and management uncertainty to the
summer flounder stock/fishery. The SSC's report and the benchmark
assessment model outline several sources of uncertainty for the summer
flounder stock assessment. As a result, it would be inappropriate for
NMFS to assume there is no need to offset ABC from OFL.
Comment 7: Many mentioned that the summer flounder recreational
harvest limit will be reduced up to 40 percent due to estimated
declines in the stock and because the recreational sector is estimated
to have exceeded its 2016 harvest limit. They recommended that NMFS
assume that the recreational sector met, but did not exceed its
recreational harvest of 5.42 million lb (2,458 mt) in 2016.
Response: This action will reduce the 2017 recreational harvest
limit by approximately 30 percent from the 2016 limit (from 5.42
million lb (2,457 mt) to 3.77 million lb (1,711 mt)). NMFS clarifies
that any additional reduction necessary to prevent an overage of the
2017 recreational harvest limit due to estimated 2016 overages will be
determined after the end of the 2016 fishing year and announced through
rulemaking that will establish the 2017 summer flounder, scup, and
black sea bass recreational management measures. Although preliminary
Marine Recreational Information Program estimates indicate that 2016
recreational harvest limit overages may necessitate a total reduction
closer to 40 percent, this amount is subject to change and may
ultimately be greater or less than that amount. As for the suggestion
to assume the recreational sector met but did not exceed its
recreational harvest limit for 2016, the Council must recommend, and
NMFS is required to implement, recreational management measures that
will constrain landings to the recreational harvest limit for a given
fishing year. If data show that the fishery exceeded its limit in 2016,
this informs the Council and NMFS about the extent to which adjustments
to recreational management measures are needed to appropriately
constrain catch in 2017. The determination of any 2016 overage, and how
that will affect 2017 recreational management measures, is outside the
scope of this action. A separate notice-and-comment rulemaking for the
2017 recreational summer flounder management measures will be conducted
in late winter/early spring of 2017.
Comment 8: The majority of commenters mentioned that these catch
limit reductions would be very difficult for the fishing industry,
particularly the recreational sector, and coastal communities. Some
stated that these cuts are occurring with no consideration to the
communities who depend on summer flounder fishing for their
livelihoods. Others noted their concerns that these cuts would likely
drive them

[[Page 93848]]

out of business. Some recreational anglers stated they would no longer
fish if these cuts resulted in lower bag limits, higher minimum sizes,
or shorter seasons.
Response: NMFS recognizes that these revised summer flounder catch
limits, representing nearly a 30-percent decrease from 2016 catch
levels, will result in constrained recreational and commercial
fisheries. The Council's SEA and Regulatory Flexibility Act Analysis
provides information on the potential impacts of these reductions for
each fishery. As for the recreational fishery, the effects of specific
recreational management measures (i.e., bag limits, size limits, and
seasonal closures) will be described and analyzed in the action that
implements those measures in 2017. The overall potential revenue
reduction associated with the 2017 commercial quota reduction is
approximately $7.7 million. Catch limits must meet conservation
objectives and satisfy applicable Magnuson-Stevens Act requirements to
end overfishing and prevent fish stocks from becoming overfished, even
if they result in negative economic impacts. The Council selected the
ABC recommended by the SSC, which is the highest possible ABC allowed
that will end overfishing. The Council based its recommendations for
the 2017 and 2018 summer flounder catch limits on the advice of its
SSC, which, as explained further in response to previous comments,
represents the best scientific information available.
Comment 9: One commenter encouraged NMFS to hold more meetings in
different areas so that more fishermen could participate.
Response: The public had the opportunity to provide comments during
the development of the 2017 and 2018 catch limits at the following
meetings:
Summer Flounder, Scup, and Black Sea Bass Monitoring
Committee Meeting; July 25, 2016 (webinar);
Summer Flounder, Scup, and Black Sea Bass Advisory Panel
Meetings; July 29, 2016 (webinar);
Joint Council and Commission meeting to develop 2017 and
2018 catch limit recommendations; August 9, 2016 (Virginia Beach, VA).
Additionally, there have been opportunities to comment on the
development of 2017 recreational management measures at the following
meetings:
Summer Flounder, Scup, and Black Sea Bass Monitoring
Committee Meetings; November 9-10, 2016 (Baltimore, MD);
Summer Flounder, Scup, and Black Sea Bass Advisory Panel
Meeting; November 17, 2016 (webinar);
Joint Council and Commission meeting to develop 2017
recreational management measure recommendations; December 12-15, 2016
(Baltimore, MD).
These meetings are scheduled by the Council, which is responsible
for the development of catch recommendations to NMFS. Council-related
meetings are generally held annually at similar dates and are
accessible through webinar. NMFS encourages interested parties to check
the Council's Web site for information on how to access upcoming
meetings (https://www.mafmc.org).
Furthermore, the measures of this rule have been subject to public
comment through proposed rulemaking, as required under the
Administrative Procedure Act.
Comment 10: A few commenters noted frustration that overfishing did
not occur in their states, either recreationally or commercially, and
questioned why fishermen from that state are being punished for
overfishing that occurred in other states.
Response: In the case of summer flounder, overfishing is not the
result of states exceeding individual commercial quotas or recreational
targets, but rather results from the coastwide sector allocations being
set at a level that is not sustainable for the stock overall. Based on
the retrospective patterns in the assessment that have continually
underestimated previous years' fishing mortality and overestimated
stock size and recruitment, catch limits have been set at optimistic,
higher levels. While catch has largely stayed within these levels,
further evaluation indicates that the catch limits themselves for prior
years, including 2016 and those previously established for 2017 and
2018, were set too high and overfishing and stock depletion continued
as a result. This is why the SSC recommended a substantial reduction
for 2017 and 2018 to adjust for and correct this persistent catch
setting error and to end the cycle of overfishing. NMFS agrees with the
Council's recommendation based on the ABC advice of its SSC and we are
implementing the revised, lower ABCs outlined in the preamble as a
result.
Comment 11: Numerous commenters implied that the summer flounder
management measures are partial to the commercial industry. One issue
of particular concern raised by commenters is that the commercial
minimum size limit is smaller than those established for the
recreational sector. Additionally, some stated the catch limits were
allocated unfairly and the commercial fishery's landings limits should
be reduced. Many commented that the commercial fishing industry is
negatively affecting the resource more than the recreational sector,
particularly with respect to discarding. Many suggestions on commercial
management measures were suggested (e.g., prohibit commercial fishing
within 10 miles of the coastline, limit the amount of commercial
fishing allowed in the winter months around summer flounder spawning
grounds, etc.).
Response: The Council evaluated the available fishery performance
data and decided not to recommend adjusting the commercial minimum
summer flounder size or other commercial fishery measures as part of
the 2017 and 2018 specifications revision. Because NMFS' authority is
to approve, partially approve, or disapprove Council-recommended
measures, the commenters' suggestions for changes to the commercial
fishery are outside the scope of this action. The Council can consider
annual changes to several management measures, including commercial
minimum fish size, during its specification setting process that
typically occurs at the August meeting. NMFS encourages those with
concerns about the commercial fishery voice those issues directly to
the Council during the appropriate specifications development cycle in
2017. The Council, working with the Commission, is currently developing
a summer flounder amendment that is potentially reviewing state-by-
state commercial and sector allocations. NMFS encourages commenters to
stay involved with the Council process during this amendment's
development. Other management measures, such as seasonal closures or
prohibiting fishing within certain areas, must also be considered
through Council and Commission actions and are outside the scope of
this action.
Comment 12: One commenter mentioned the need for more enforcement,
stating that too many people are keeping undersized fish or exceeding
their bag limits.
Response: NMFS agrees that adequate enforcement is essential to
help ensure catch limits are effective and we will continue to work
closely with our state partners under our joint enforcement agreements.
NMFS encourages people to call the NMFS Office of Law Enforcement's
hotline at (800) 853-1964 if they witness illegal fishing activity.
Comment 13: One commenter suggested that observer data be reviewed
and the specifications should

[[Page 93849]]

be updated appropriately following that review.
Response: The commercial discard estimates using observer data are
included in the annual stock assessment updates that are utilized in
deriving OFL recommendations; therefore, observer data have already
been reviewed and incorporated into these specifications.
Comment 14: Four commenters mentioned concerns over the impact of
foreign fishing in U.S. waters and its impact on the summer flounder
stock.
Response: NMFS agrees that it is important to minimize the impact
of foreign fishing vessels in the U.S. Exclusive Economic Zone (EEZ),
which is why Congress enacted the Magnuson-Stevens Act in 1976. The
Magnuson-Stevens Act prohibited foreign fishing within the EEZ, except
under special circumstances. There is currently no impact from foreign
fishing on summer flounder within the EEZ.

Classification

The Administrator, Greater Atlantic Region, NMFS, determined that
this final rule is necessary for the conservation and management of the
summer flounder fishery and that it is consistent with the Magnuson-
Stevens Act and other applicable laws.
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 specifications are in
place on January 1, 2017. This action establishes the final
specifications (i.e., annual catch limits) for the summer flounder and
the final commercial quota for the black sea bass fishery for the 2017
fishing year, which begins on January 1, 2017.
This rule is being issued at the earliest possible date.
Preparation of the proposed rule by NMFS was dependent on the
submission of the SEA/IRFA in support of the specifications that is
developed by the Council. A complete document was received by NMFS in
mid-October 2016. Documentation in support of the Council's recommended
specifications is required for NMFS to provide the public with
information from the environmental and economic analyses, as required
for rulemaking, and to evaluate the consistency of the Council's
recommendation with the Magnuson-Stevens Act and other applicable law.
The proposed rule published on November 15, 2016, with a 15-day comment
period ending November 30, 2016. Publication of the summer flounder
specification at the start of the fishing year that begins January 1 of
each fishing year, is required by the order of Judge Robert Doumar in
North Carolina Fisheries Association v. Daley. Although there are
currently established 2017 commercial and recreational catch limits for
summer flounder, fishing at these levels would result in overfishing of
the stock. The existing catch limits need to be replaced by the catch
limits implemented through this action, which represent a necessary 30-
percent reduction.
If the 30-day delay in effectiveness is not waived, the catch limit
currently in place for the summer flounder fishery on January 1, 2017,
will be too high, will be inconsistent with the prevailing scientific
advice, and will perpetuate overfishing on the stock in a period of
consistently poor recruitment, representing a substantial risk to the
stock. Allowing fishing at this level is inconsistent with the
Magnuson-Stevens Act, National Standard 1, and National Standard 2. The
summer flounder fishery is expected, based on historic participation
and harvest patterns, to be very active at the start of the fishing
season in 2017. Without these revised specifications in place on
January 1, 2017, individual states will not be held to the reduced
catch limits and will be unable to set appropriate commercial
possession and/or trip limits, which apportion the catch over the
entirety of the calendar year. Disproportionately large harvest
occurring within the first weeks of 2017 would disadvantage some gear
sectors or owners and operators of smaller vessels that typically fish
later in the fishing season. It is reasonable to conclude that the
commercial fishing fleet possesses sufficient capacity to exceed the
established commercial quota for summer flounder before the regulations
would become effective, should these updated specifications not be in
place on January 1, 2017. Should this occur, the fishing mortality
objectives for summer flounder would be compromised, thus undermining
the intent of the rule. Additionally, if states are unable to constrain
harvest within these revised specifications at the start of the fishing
year, resulting in overages in the total 2017 catch limits, these
overages will count against the 2018 fishing year limits, further
impacting the fishing fleet. Similarly, the commercial fishing fleet
could potentially exceed the revised commercial black sea bass catch
limit before these specifications would be effective, if not in place
by January 1, 2017. To ensure the effectiveness of this required
accountability measure, the black sea bass catch limit revision must
also be in place before the start of the fishing year. For all of these
reasons, a 30-day delay in effectiveness would be contrary to the
public interest. Therefore, NMFS is waiving the requirement to ensure
the revised summer flounder specifications are in place on January 1,
2017.
These specifications are exempt from the procedures of Executive
Order 12866.
This final rule does not duplicate, conflict, or overlap with any
existing Federal rules.
A FRFA was prepared pursuant to 5 U.S.C. 604(a), and incorporates
the IRFA, a summary of any significant issues raised by the public
comments in response to the IRFA and NMFS's responses to those
comments, and a summary of the analyses completed to support the
action. A copy of the EA/IRFA is available from the Council (see
ADDRESSES).
The preamble to the proposed rule included a detailed summary of
the analyses contained in the IRFA, and that discussion is not repeated
here.

Final Regulatory Flexibility Analysis

A Summary of Significant Issues Raised by the Public in Response to the
Summary of the Agency's Assessment of Such Issues, and a Statement of
Any Changes Made in the Final Rule as a Result

Our responses to all of the comments received on the proposed rule,
including those that raised significant issues with the proposed
action, can be found in the Comments and Responses section of this
rule. None of the comments received raised specific issues regarding
the economic analyses summarized in the IRFA. As outlined in Comment 9,
commenters were generally concerned with the impacts of a 30-percent
reduction on the fishing industry and shoreside businesses. Most
comments were focused on the recreational fishery. Our response to
those comments are not repeated here. No changes to the proposed rule
were required to be made as a result of public comments.

Description and Estimate of Number of Small Entities to Which the Rule
Will Apply

On December 29, 2015, NMFS issued a final rule establishing a small
business size standard of $11 million in annual gross receipts for all
businesses primarily engaged in the commercial fishing industry and $7
million in annual gross receipts for all businesses primarily engaged
in for-hire fishing activity (NAICS 11411) for Regulatory Flexibility
Act (RFA) compliance purposes only (80 FR 81194, December 29, 2015).
The North American Industry

[[Page 93850]]

Classification System (NAICS) is the standard used by Federal
statistical agencies in classifying business establishments for the
purpose of collecting, analyzing, and publishing statistical data
related to the U.S. business economy.
The categories of small entities likely to be affected by this
action include commercial and charter/party vessel owners holding an
active Federal permit for summer flounder, as well as owners of vessels
that fish for summer flounder in state waters. The Council estimates
that the 2017 and 2018 summer flounder specifications could affect 958
small entities and six large entities, assuming average revenues for
the 2013-2015 period.

Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements

No additional reporting, recordkeeping, or other compliance
requirements are included in this final rule.

Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes

Specification of commercial quotas and possession limits is
constrained by the conservation objectives set forth in the FMP and
implemented at 50 CFR part 648 under the authority of the Magnuson-
Stevens Act. Economic impacts of changes in year-to-year quota
specifications may be offset by adjustments to such measures as
commercial fish sizes, changes to mesh sizes, gear restrictions, or
possession and trip limits that may increase efficiency or value of the
fishery. The Council recommended no such management measure changes, so
none are implemented in this final rule. Therefore, the economic impact
analysis of the action is evaluated on the different levels of quota
specified in the alternatives. The ability of NMFS to minimize economic
impacts for this action is constrained by quota levels that provide the
maximum availability of fish while still ensuring that the required
objectives and directives of the FMP, its implementing regulations, and
the Magnuson-Stevens Act are met. In particular, the Council's SSC has
made recommendations for the 2017 and 2018 ABC level for the summer
flounder stock designed to end overfishing and foster stock growth.
NMFS considers these recommendations to be consistent with National
Standard 2 of the Magnuson-Stevens Act, which requires that the best
available scientific information be used in fishery decision making.
This action sets commercial quotas and recreational harvest limits for
the summer flounder fishery for the 2017 and 2018 fishing years that
achieve the objectives outlined in the preamble of this rule. The
landings limits for 2017 include a commercial quota of 5.66 million lb
(2,567 mt) and a recreational harvest limit of 3.77 million lb (1,711
mt). For 2018, the measures include an initial commercial quota of 6.63
million lb (3,006 mt) and a recreational harvest limit of 4.42 million
lb (2,004 mt).
The only other alternatives considered were the status quo
alternatives that are identical to the summer flounder landings limits
implemented in December 2015 (i.e., the previously implemented 2017 and
2018 levels). If these specifications remained in place, they would
have greater positive socioeconomic impacts than the preferred
alternatives. However, these alternatives were not selected as
preferred, as they do not address the new scientific information
regarding summer flounder stock status, and, therefore, would likely
result in overfishing, which would be inconsistent with the FMP,
National Standard 1 guidance under the Magnuson-Stevens Act, and the
most recent advice of the Council's SSC. Because these alternatives are
inconsistent with the purpose and need of this action, they are not
considered further under this analysis.

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules.
As part of this rulemaking process, a small entity compliance guide
will be sent to all holders of Federal permits issued for the summer
flounder, scup, and black sea bass fisheries. In addition, copies of
this final rule and guide (i.e., permit holder letter) are available
from NMFS (see ADDRESSES) and at the following Web site: https://www.greateratlantic.fisheries.noaa.gov.

Authority: 16 U.S.C. 1801 et seq.

Dated: December 19, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2016-30876 Filed 12-21-16; 8:45 am]
BILLING CODE 3510-22-P

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