50 CFR § 648.100-648.111 - Fisheries of the Northeastern United States - Management Measures for the Summer Flounder Fisheries

941 Fishery Conservation and Management § 648.100 (ii) NMFS action. If the Councils fail to take appropriate action to correct an ACL overage consistent with para graph (d)(1)(i) of this section, the Re gional Administrator shall implement the required adjustment, as described in paragraph (d)(2)(i) of this section, in cluding the specification of DAS and trip limits using a formulaic approach developed by the PDT, in accordance with the Administrative Procedure Act and other applicable law. Notification of the proposed ACL revision and DAS and/or trip limit adjustments shall be published in the FEDERAL REGISTER no later than January 1, if possible, for implementation on May 1 of the second fishing year following the fishing year in which the ACL overage occurred. (e) Emergency action. Nothing in this section is meant to derogate from the authority of the Secretary to take emergency action under section 305(c) of the Magnuson-Stevens Act. [76 FR 30274, May 25, 2011, as amended at 76 FR 81849, Dec. 29, 2011; 80 FR 37196, June 30, 2015] § 648.97 Closed areas. (a) Oceanographer Canyon Closed Area. No fishing vessel or person on a fishing vessel may enter, fish, or be in the area known as Oceanographer Canyon Closed Area (copies of a chart depicting this area are available from the Re gional Administrator upon request), as defined by straight lines connecting the following points in the order stat ed, while on a monkfish DAS: OCEANOGRAPHER CANYON CLOSED AREA Point N. Lat. W. Long. (1) OC1 40°10′ 68°12′ (2) OC2 40°24′ 68°09′ (3) OC3 40°24′ 68°08′ (4) OC4 40°10′ 67°59′ (5) OC1 40°10′ 68°12′ (b) Lydonia Canyon Closed Area. No fishing vessel or person on a fishing vessel may enter, fish, or be in the area known as Lydonia Canyon Closed Area (copies of a chart depicting this area are available from the Regional Ad ministrator upon request), as defined by straight lines connecting the fol lowing points in the order stated, while on a monkfish DAS: LYNDONIA CANYON CLOSED AREA Point N. Lat. W. Long. (1) LC1 40°16′ 67°34′ (2) LC2 40°16′ 67°42′ (3) LC3 40°20′ 67°43′ (4) LC4 40°27′ 67°40′ (5) LC5 40° 27′ 67°38′ (6) LC1 40°16′ 67°34′ [70 FR 21946, Apr. 28, 2005] Subpart G—Management Meas ures for the Summer Flounder Fisheries § 648.100 Summer flounder Annual Catch Limit (ACL). (a) The Summer Flounder Monitoring Committee shall recommend to the MAFMC separate ACLs for the com mercial and recreational summer flounder fisheries, the sum total of which shall be equal to the ABC rec ommended by the SSC. (1) Sector allocations. The commercial and recreational fishing sector ACLs will be established consistent with the allocation guidelines contained in the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP). (2) Periodicity. The summer flounder commercial and recreational sector ACLs may be established on an annual basis for up to 3 years at a time, de pendent on whether the SSC provides single or multiple year ABC rec ommendations. (b) Performance review. The Summer Flounder Monitoring Committee shall conduct a detailed review of fishery performance relative to the sector ACLs at least every 5 years. (1) If one or both of the sector-spe cific ACLs is exceeded with a frequency greater than 25 percent (i.e., more than once in 4 years or any 2 consecutive years), the Summer Flounder Moni toring Committee will review fishery performance information and make recommendations to the MAFMC for changes in measures intended to ensure ACLs are not exceeded as frequently. (2) The MAFMC may specify more frequent or more specific ACL perform ance review criteria as part of a stock rebuilding plan following a determina tion that the summer flounder stock has become overfished. 942 50 CFR Ch. VI (10–1–22 Edition) § 648.101 (3) Performance reviews shall not substitute for annual reviews that occur to ascertain if prior year ACLs have been exceeded but may be con ducted in conjunction with such re views. [76 FR 60626, Sept. 29, 2011] § 648.101 Summer flounder Annual Catch Target (ACT). (a) The Summer Flounder Monitoring Committee shall identify and review the relevant sources of management uncertainty to recommend ACTs for the commercial and recreational fish ing sectors as part of the summer flounder specification process. The Summer Flounder Monitoring Com mittee recommendations shall identify the specific sources of management un certainty that were considered, tech nical approaches to mitigating these sources of uncertainty, and any addi tional relevant information considered in the ACT recommendation process. (1) Sectors. Commercial and rec reational specific ACTs shall be less than or equal to the sector-specific ACLs. The Summer Flounder Moni toring Committee shall recommend any reduction in catch necessary to ad dress sector-specific management un certainty, consistent with paragraph (a) of this section. (2) Periodicity. ACTs may be estab lished on an annual basis for up to 3 years at a time, dependent on whether the SSC provides single or multiple year ABC recommendations. (b) Performance review. The Summer Flounder Monitoring Committee shall conduct a detailed review of fishery performance relative to ACTs in con junction with any ACL performance re view, as outlined in § 648.100(b)(1) through (3). [76 FR 60626, Sept. 29, 2011] § 648.102 Summer flounder specifica tions. (a) Commercial quota, recreational landing limits, research set-asides, and other specification measures. The Sum mer Flounder Monitoring Committee shall recommend to the MAFMC, through the specifications process, for use in conjunction with each ACL and ACT, a sector-specific research set aside, estimates of sector-related dis cards, recreational harvest limit, and commercial quota, along with other measures, as needed, that are projected to ensure the sector-specific ACL for an upcoming fishing year or years will not be exceeded. The measures to be considered by the Summer Flounder Monitoring Committee are: (1) Research quota set from a range of 0 to 3 percent of the allowable land ings level for both the commercial and recreational sectors. (2) Commercial minimum fish size. (3) Minimum mesh size. (4) Restrictions on gear other than otter trawls. (5) Adjustments to the exempted area boundary and season specified in § 648.108(b)(1) by 30-minute intervals of latitude and longitude and 2-week in tervals, respectively, based on data re viewed by Summer Flounder Moni toring Committee during the specifica tion process, to prevent discarding of sublegal sized summer flounder in ex cess of 10 percent, by weight. (6) Recreational possession limit set from a range of 0 to 15 summer floun der to achieve the recreational harvest limit, set after reductions for research quota. (7) Recreational minimum and/or maximum fish size. (8) Recreational season. (9) Recreational state conservation equivalent and precautionary default measures utilizing possession limits, minimum fish sizes, and/or seasons set after reductions for research quota. (10) Changes, as appropriate, to the SBRM, including the CV-based per formance standard, the means by which discard data are collected/ob tained, fishery stratification, the proc ess for prioritizing observer sea-day al locations, reports, and/or industry funded observers or observer set aside programs. (11) Modification of existing AM measures and ACT control rules uti lized by the Summer Flounder Moni toring Committee. (b) Specification fishing measures. The Demersal Species Committee shall re view the recommendations of the Sum mer Flounder Monitoring Committee. Based on these recommendations and any public comment, the Demersal 943 Fishery Conservation and Management § 648.102 Species Committee shall recommend to the MAFMC measures necessary that are projected to ensure the sector-spe cific ACLs for an upcoming fishing year or years will not be exceeded. The MAFMC shall review these rec ommendations and, based on the rec ommendations and any public com ment, recommend to the Regional Ad ministrator measures that are pro jected to ensure the sector-specific ACL for an upcoming fishing year or years will not be exceeded. The MAFMC’s recommendations must in clude supporting documentation, as ap propriate, concerning the environ mental and economic impacts of the recommendations. The Regional Ad ministrator shall review these rec ommendations and any recommenda tions of the ASMFC. (c) After such review, the Regional Administrator will publish a proposed rule in the FEDERAL REGISTER to im plement a coastwide commercial quota, a recreational harvest limit, re search set-aside, adjustments to ACL or ACT resulting from AMs, and addi tional management measures for the commercial fishery. After considering public comment, NMFS will publish a final rule in the FEDERAL REGISTER. (1) Distribution of annual commercial quota. (i) For years when the annual commercial quota is at or below 9,550,000 lb (4,332 mt), the quota will be distributed to the states, based upon the following percentages (state fol lowed by percent share in parenthesis): Maine (0.04756); New Hampshire (0.00046); Massachusetts (6.82046); Rhode Island (15.68298); Connecticut (2.25708); New York (7.64699); New Jersey (16.72499); Delaware (0.01779); Maryland (2.03910); Virginia (21.31676); and North Carolina (27.44584). (ii) For years when the annual com mercial quota is greater than 9,550,000 lb (4,332 mt), the quota up to this amount will be distributed as outlined in paragraph (c)(1)(i) of this section, and the additional quota above 9,550,000 lb (4,332 mt) will be distributed based upon the following percentages (state followed by percent share in paren thesis): Maine (0.333); New Hampshire (0.333); Massachusetts (12.375); Rhode Island (12.375); Connecticut (12.375); New York (12.375); New Jersey (12.375); Delaware (0.333); Maryland (12.375); Vir ginia (12.375); and North Carolina (12.375). (2) Quota transfers and combinations. Any state implementing a state com mercial quota for summer flounder may request approval from the Re gional Administrator to transfer part or its entire annual quota to one or more states. Two or more states imple menting a state commercial quota for summer flounder may request approval from the Regional Administrator to combine their quotas, or part of their quotas, into an overall regional quota. Requests for transfer or combination of commercial quotas for summer floun der must be made by individual or joint letter(s) signed by the principal state official with marine fishery manage ment responsibility and expertise, or his/her previously named designee, for each state involved. The letter(s) must certify that all pertinent state require ments have been met and identify the states involved and the amount of quota to be transferred or combined. (i) Within 10 working days following the receipt of the letter(s) from the states involved, the Regional Adminis trator shall notify the appropriate state officials of the disposition of the request. In evaluating requests to transfer a quota or combine quotas, the Regional Administrator shall consider whether: (A) The transfer or combination would preclude the overall annual quota from being fully harvested; (B) The transfer addresses an unfore seen variation or contingency in the fishery; and (C) The transfer is consistent with the objectives of the FMP and the Mag nuson-Stevens Act. (ii) The transfer of quota or the com bination of quotas will be valid only for the calendar year for which the request was made; (iii) A state may not submit a re quest to transfer quota or combine quotas if a request to which it is party is pending before the Regional Admin istrator. A state may submit a new re quest when it receives notice that the Regional Administrator has dis approved the previous request or when notice of the approval of the transfer 944 50 CFR Ch. VI (10–1–22 Edition) § 648.102 or combination has been filed at the Office of the Federal Register. (iv) If there is a quota overage among states involved in the combination of quotas at the end of the fishing year, the overage will be deducted from the following year’s quota for each of the states involved in the combined quota. The deduction will be proportional, based on each state’s relative share of the combined quota for the previous year. A transfer of quota or combina tion of quotas does not alter any state’s percentage share of the overall quota specified in paragraph (d)(1)(i) of this section. (d) Recreational specification measures. The Demersal Species Committee shall review the recommendations of the Summer Flounder Monitoring Com mittee. Based on these recommenda tions and any public comment, the Demersal Species Committee shall rec ommend to the MAFMC and ASMFC measures that are projected to ensure the sector-specific ACL for an upcom ing fishing year or years will not be ex ceeded. The MAFMC shall review these recommendations and, based on the recommendations and any public com ment, recommend to the Regional Ad ministrator measures that are pro jected to ensure the sector-specific ACL for an upcoming fishing year or years will not be exceeded. The MAFMC’s recommendations must in clude supporting documentation, as ap propriate, concerning the environ mental and economic impacts of the recommendations. The MAFMC and the ASMFC will recommend that the Regional Administrator implement ei ther: (1) Coastwide measures. Annual coastwide management measures that constrain the recreational summer flounder fishery to the recreational harvest limit, or (2) Conservation equivalent measures. Individual states, or regions formed voluntarily by adjacent states (i.e., multi-state conservation equivalency regions), may implement different combinations of minimum and/or max imum fish sizes, possession limits, and closed seasons that achieve equivalent conservation as the coastwide meas ures established under paragraph (e)(1) of this section. Each state or multi state conservation equivalency region may implement measures by mode or area only if the proportional standard error of recreational landing estimates by mode or area for that state is less than 30 percent. (i) After review of the recommenda tions, the Regional Administrator will publish a proposed rule in the FEDERAL REGISTER as soon as possible to imple ment the overall percent adjustment in recreational landings required for the fishing year, and the ASMFC’s rec ommendation concerning conservation equivalency, the precautionary default measures, and coastwide measures. (ii) The ASMFC will review conserva tion equivalency proposals and deter mine whether or not they achieve the necessary adjustment to recreational landings. The ASMFC will provide the Regional Administrator with the indi vidual state and/or multi-state region conservation measures for the ap proved state and/or multi-state region proposals and, in the case of dis approved state and/or multi-state re gion proposals, the precautionary de fault measures that should be applied to a state or region. At the request of the ASMFC, precautionary default measures would apply to federally per mitted party/charter vessels and other recreational fishing vessels harvesting summer flounder in or from the EEZ when landing in a state that imple ments measures not approved by the ASMFC. (iii) After considering public com ment, the Regional Administrator will publish a final rule in the FEDERAL REGISTER to implement either the state specific conservation equivalency measures or coastwide measures to en sure that the applicable specified tar get is not exceeded. (iv) The ASMFC may allow states as signed the precautionary default meas ures to resubmit revised management measures. The ASMFC will detail the procedures by which the state can de velop alternate measures. The ASMFC will notify the Regional Administrator of any resubmitted state proposals ap proved subsequent to publication of the final rule and the Regional Adminis trator will publish a document in the FEDERAL REGISTER to notify the public. 945 Fishery Conservation and Management § 648.103 (e) Research quota. See § 648.22(g). [76 FR 60626, Sept. 29, 2011, as amended at 76 FR 81849, Dec. 29, 2011; 80 FR 37196, June 30, 2015; 84 FR 65702, Nov. 29, 2019; 85 FR 36803, June 18, 2020; 85 FR 80666, Dec. 14, 2020] § 648.103 Summer flounder account ability measures. (a) Commercial sector EEZ closure. The Regional Administrator shall close the EEZ to fishing for summer flounder by commercial vessels for the remainder of the calendar year by publishing noti fication in the FEDERAL REGISTER if he/ she determines that the inaction of one or more states will cause the commer cial sector ACL to be exceeded, or if the commercial fisheries in all states have been closed. The Regional Admin istrator may reopen the EEZ if earlier inaction by a state has been remedied by that state, or if commercial fish eries in one or more states have been reopened without causing the sector ACL to be exceeded. (b) State commercial landing quotas. The Regional Administrator will mon itor state commercial quotas based on dealer reports and other available in formation and shall determine the date when a state commercial quota will be harvested. The Regional Administrator shall publish notification in the FED ERAL REGISTER advising a state that, effective upon a specific date, its com mercial quota has been harvested and notifying vessel and dealer permit holders that no commercial quota is available for landing summer flounder in that state. (1) Commercial ACL overage evaluation. The commercial sector ACL will be evaluated based on a single-year exam ination of total catch (landings and dead discards). Both landings and dead discards will be evaluated in deter mining if the commercial sector ACL has been exceeded. (2) Commercial landings overage repay ment. All summer flounder landed for sale in a state shall be applied against that state’s annual commercial quota, regardless of where the summer floun der were harvested. Any landings in ex cess of the commercial quota in any state, inclusive of any state-to-state transfers, will be deducted from that state’s annual quota for the following year in the final rule that establishes the annual state-by-state quotas, irre spective of whether the commercial sector ACL is exceeded. The overage deduction will be based on landings for the current year through October 31 and on landings for the previous cal endar year that were not included when the overage deduction was made in the final rule that established the annual quota for the current year. If the Regional Administrator determines during the fishing year that any part of an overage deduction was based on er roneous landings data that were in ex cess of actual landings for the period concerned, he/she will restore the over age that was deducted in error to the appropriate quota allocation. The Re gional Administrator will publish noti fication in the FEDERAL REGISTER an nouncing such restoration. (3) Non-landing accountability measure. In the event that the commercial ACL is exceeded and that the overage has not been accommodated through the landings-based AM, then the following procedure will be followed: (i) Overfishing, rebuilding, or unknown stock status. If the most recent estimate of biomass is below the BMSY threshold (i.e., B/BMSY is less than 0.5), the stock is under a rebuilding plan, or the bio logical reference points (B or BMSY) are unknown, and the commercial ACL has been exceeded, then the exact amount, in pounds, by which the most recent year’s commercial catch estimate ex ceeded the most recent year’s commer cial ACL will be deducted, in the fol lowing fishing year from the commer cial ACT, as a single-year adjustment. (ii) If biomass is above the threshold, but below the target, and the stock is not under rebuilding. If the most recent es timate of biomass is above the biomass threshold (B/BMSY is greater than 0.5), but below the biomass target (B/BMSY is less than 1.0), and the stock is not under a rebuilding plan, then the fol lowing AMs will apply: (A) If the Commercial ACL has been exceeded, but not the overall ABC, then no single-year AM payback is re quired. (B) If the Commercial ACL and ABC have been exceeded, then a scaled sin gle-year adjustment to the commercial ACT will be made, in the following fishing year. The ACT will be reduced 946 50 CFR Ch. VI (10–1–22 Edition) § 648.103 by the exact amount, in pounds, of the product of the overage, defined as the difference between the commercial catch and the commercial ACT, and the payback coefficient. The payback coefficient is the difference between the most recent estimate of biomass and BMSY (i.e., BMSY¥B) divided by one half of BMSY. (iii) If biomass is above BMSY. If the most recent estimate of biomass is above BMSY (i.e., B/BMSY is greater than 1.0), then no single-year AM payback is required. (c) Recreational ACL Evaluation. The recreational sector ACL will be evalu ated based on a 3-year moving average comparison of total catch (landings and dead discards). Both landings and dead discards will be evaluated in de termining if the 3-year average rec reational sector ACL has been exceed ed. The 3-year moving average will be phased in over the first 3 years, begin ning with 2012: Total recreational catch from 2012 will be compared to the 2012 recreational sector ACL; the aver age total catch from both 2012 and 2013 will be compared to the average of the 2012 and 2013 recreational sector ACLs; the average total catch from 2012, 2013, and 2014 will be compared to the aver age of the 2012, 2013, and 2014 rec reational sector ACLs; and for all sub sequent years, the preceding 3-year av erage recreational total catch will be compared to the preceding 3-year aver age recreational sector ACL. (d) Recreational AMs. If the rec reational ACL is exceeded, then the following procedure will be followed: (1) If biomass is below the threshold, the stock is under rebuilding, or biological ref erence points are unknown. If the most recent estimate of biomass is below the BMSY threshold (i.e., B/BMSY is less than 0.5), the stock is under a rebuilding plan, or the biological reference points (B or BMSY) are unknown, and the rec reational ACL has been exceeded, then the exact amount, in pounds, by which the most recent year’s recreational catch estimate exceeded the most re cent year’s recreational ACL will be deducted, in the following fishing year, or as soon as possible, thereafter, once catch data are available, from the rec reational ACT, as a single-year adjust ment. (2) If biomass is above the threshold, but below the target, and the stock is not under rebuilding. If the most recent es timate of biomass is above the biomass threshold (B/BMSY is greater than 0.5), but below the biomass target (B/BMSY is less than 1.0), and the stock is not under a rebuilding plan, then the fol lowing AMs will apply: (i) If the Recreational ACL has been ex ceeded. If the Recreational ACL has been exceeded, then adjustments to the recreational management measures, taking into account the performance of the measures and conditions that pre cipitated the overage, will be made in the following fishing year, or as soon as possible thereafter, once catch data are available, as a single-year adjust ment. (ii) If the ABC has been exceeded. If the ABC has been exceeded, then a sin gle-year adjustment to the rec reational ACT will be made, in the fol lowing fishing year, or as soon as pos sible thereafter, once catch data are available, as described in paragraph (d)(2)(ii)(A) of this section. In addition, adjustments to the recreational man agement measures, taking into account the performance of the measures and conditions that precipitated the over age, will be made in the following year. (A) Adjustment to Recreational ACT. If an adjustment to the following year’s Recreational ACT is required, then the ACT will be reduced by the exact amount, in pounds, of the product of the overage, defined as the difference between the recreational catch and the recreational ACL, and the payback co efficient, as specified in paragraph (d)(2)(ii)(B) of this section. (B) Payback coefficient. The payback coefficient is the difference between the most recent estimate of biomass and BMSY (i.e., BMSY¥B) divided by one half of BMSY. (3) If biomass is above BMSY. If the most recent estimate of biomass is above BMSY (i.e., B/BMSY is greater than 1.0), then adjustments to the rec reational management measures, tak ing into account the performance of the measures and conditions that pre cipitated the overage, will be made in the following fishing year, or as soon as possible thereafter, once catch data 947 Fishery Conservation and Management § 648.106 are available, as a single-year adjust ment. (e) State/Federal disconnect AM. If the total catch, allowable landings, com mercial quotas, and/or RHL measures adopted by the ASMFC Summer Floun der, Scup and Black Sea Bass Manage ment Board and the MAFMC differ for a given fishing year, administrative ac tion will be taken as soon as possible to revisit the respective recommenda tions of the two groups. The intent of this action shall be to achieve align ment through consistent state and Federal measures such that no dif ferential effects occur on Federal per mit holders. [76 FR 60628, Sept. 29, 2011, as amended at 78 FR 76763, Dec. 19, 2013; 83 FR 53826, Oct. 25, 2018] § 648.104 Summer flounder size re quirements. (a) Moratorium (commercial) permitted vessels. The minimum size for summer flounder is 14 inches (35.6 cm) TL for all vessels issued a moratorium permit under § 648.4(a)(3), except on board party and charter boats carrying pas sengers for hire or carrying more than three crew members, if a charter boat, or more than five crew members, if a party boat. (b) Party/charter permitted vessels and recreational fishery participants. The minimum size for summer flounder is 18.5-inches (47 cm) total length for all vessels that do not qualify for a sum mer flounder moratorium permit under § 648.4(a)(3), and charter boats holding a summer flounder moratorium permit if fishing with more than three crew members, or party boats holding a summer flounder moratorium permit if fishing with passengers for hire or car rying more than five crew members, unless otherwise specified in the con servation equivalency regulations at § 648.107. If conservation equivalency is not in effect in any given year, posses sion of smaller (or larger, if applicable) summer flounder harvested from state waters is allowed for state-only per mitted vessels when transiting Federal waters within the Block Island Sound Transit Area provided they follow the provisions at § 648.111 and abide by state regulations. (c) Measurement. The size limits in this section apply to whole fish or to any part of a fish found in possession, e.g., fillets, except that party and char ter vessels fishing exclusively in state waters possessing valid state permits authorizing filleting at sea may possess fillets smaller than the size specified if all state requirements are met. [76 FR 60629, Sept. 29, 2011, as amended at 78 FR 37479, June 21, 2013; 82 FR 31494, July 7, 2017; 84 FR 65702, Nov. 29, 2019; 87 FR 35116, June 9, 2022] § 648.105 Summer flounder rec reational fishing season. No person may fish for summer flounder in the EEZ from May 15 through September 15 unless that per son is the owner or operator of a fish ing vessel issued a commercial summer flounder moratorium permit, or is issued a summer flounder dealer per mit, or unless otherwise specified in the conservation equivalency measures at § 648.107. Persons aboard a commer cial vessel that is not eligible for a summer flounder moratorium permit are subject to this recreational fishing season. This time period may be ad justed pursuant to the procedures in § 648.102. Possession of summer flounder harvested from state waters during this time is allowed for state-only per mitted vessels when transiting Federal waters within the Block Island Sound Transit Area provided they follow the provisions at § 648.111 and abide by state regulations. [84 FR 65702, Nov. 29, 2019] § 648.106 Summer flounder possession restrictions. (a) Party/charter and recreational pos session limits. No person shall possess more than four summer flounder in, or harvested from, the EEZ, per trip un less that person is the owner or oper ator of a fishing vessel issued a sum mer flounder moratorium permit, or is issued a summer flounder dealer per mit, or unless otherwise specified in the conservation equivalency measures at § 648.107. Persons aboard a commer cial vessel that is not eligible for a summer flounder moratorium permit are subject to this possession limit. The owner, operator, and crew of a charter or party boat issued a summer 948 50 CFR Ch. VI (10–1–22 Edition) § 648.107 flounder moratorium permit are sub ject to the possession limit when car rying passengers for hire or when car rying more than five crew members for a party boat, or more than three crew members for a charter boat. This pos session limit may be adjusted pursuant to the procedures in § 648.102. Posses sion of summer flounder harvested from state waters above this possession limit is allowed for state-only per mitted vessels when transiting Federal waters within the Block Island Sound Transit Area provided they follow the provisions at § 648.111 and abide by state regulations. (b) If whole summer flounder are processed into fillets, the number of fillets will be converted to whole sum mer flounder at the place of landing by dividing the fillet number by two. If summer flounder are filleted into sin gle (butterfly) fillets, each fillet is deemed to be from one whole summer flounder. (c) Summer flounder harvested by vessels subject to the possession limit with more than one person on board may be pooled in one or more con tainers. Compliance with the posses sion limit will be determined by divid ing the number of summer flounder on board by the number of persons on board, other than the captain and the crew. If there is a violation of the pos session limit on board a vessel carrying more than one person, the violation shall be deemed to have been com mitted by the owner and operator of the vessel. (d) Commercially permitted vessel pos session limits. Owners and operators of otter trawl vessels issued a permit under § 648.4(a)(3) that fish with or pos sess nets or pieces of net on board that do not meet the minimum mesh re quirements and that are not stowed in accordance with § 648.108(e), may not retain 100 lb (45.4 kg) or more of sum mer flounder from May 1 through Octo ber 31, or 200 lb (90.7 kg) or more of summer flounder from November 1 through April 30, unless the vessel pos sesses a valid summer flounder small mesh exemption LOA and is fishing in the exemption area as specified in § 648.108(b). Summer flounder on board these vessels must be stored so as to be readily available for inspection in standard 100-lb (45.3-kg) totes or fish boxes having a liquid capacity of 18.2 gal (70 L), or a volume of not more than 4,320 in3 (2.5 ft3 or 70.79 cm3). [76 FR 60629, Sept. 29, 2011, as amended at 78 FR 37479, June 21, 2013; 80 FR 35258, June 19, 2015; 82 FR 31494, July 7, 2017; 84 FR 65703, Nov. 29, 2019] § 648.107 Conservation equivalent measures for the summer flounder fishery. (a) The Regional Administrator has determined that the recreational fish ing measures proposed to be imple mented by the states of Maine through North Carolina for 2022 are the con servation equivalent of the season, size limits, and possession limit prescribed in §§ 648.104(b), 648.105, and 648.106. This determination is based on a rec ommendation from the Summer Floun der Board of the Atlantic States Ma rine Fisheries Commission. (1) Federally permitted vessels sub ject to the recreational fishing meas ures of this part, and other rec reational fishing vessels harvesting summer flounder in or from the EEZ and subject to the recreational fishing measures of this part, landing summer flounder in a state whose fishery man agement measures are determined by the Regional Administrator to be con servation equivalent shall not be sub ject to the more restrictive Federal measures, pursuant to the provisions of § 648.4(b). Those vessels shall be subject to the recreational fishing measures implemented by the state in which they land. (2) [Reserved] (b) Federally permitted vessels sub ject to the recreational fishing meas ures of this part, and other rec reational fishing vessels registered in states and subject to the recreational fishing measures of this part, whose fishery management measures are not determined by the Regional Adminis trator to be the conservation equiva lent of the season, size limits and pos session limit prescribed in §§ 648.102, 648.103(b), and 648.105(a), respectively, due to the lack of, or the reversal of, a conservation equivalent recommenda tion from the Summer Flounder Board of the Atlantic States Marine Fisheries 949 Fishery Conservation and Management § 648.108 Commission shall be subject to the fol lowing precautionary default measures: Season—July 1 through August 31; minimum size—20 inches (50.8 cm); and possession limit—two fish. [79 FR 38264, July 7, 2014, as amended at 80 FR 35258, June 19, 2015; 81 FR 51378, Aug. 4, 2016; 82 FR 31494, July 7, 2017; 83 FR 24947, May 31, 2018; 84 FR 31745, July 3, 2019; 84 FR 65703, Nov. 29, 2019; 85 FR 36803, June 18, 2020; 86 FR 24361, May 6, 2021; 87 FR 35116, June 9, 2022] § 648.108 Summer flounder gear re strictions. (a) General. (1) Otter trawlers whose owners are issued a summer flounder permit and that land or possess 100 lb (45.4 kg) or more of summer flounder from May 1 through October 31, or 200 lb (90.7 kg) or more of summer flounder from November 1 through April 30, per trip, must fish with nets that have a minimum mesh size of 5.5-inch (14.0 cm) diamond or 6.0-inch (15.2-cm) square mesh applied throughout the body, extension(s), and codend portion of the net, except as required in a TED extension, in accordance with § 223.206(d)(2)(iii) of this title. (2) Mesh size is measured by using a wedge-shaped gauge having a taper of 2 cm (0.79 inches) in 8 cm (3.15 inches), and a thickness of 2.3 mm (0.09 inches), inserted into the meshes under a pres sure or pull of 5 kg (11.02 lb) for mesh size less than 120 mm (4.72 inches) and under a pressure or pull of 8 kg (17.64 lb) for mesh size at, or greater than, 120 mm (4.72 inches). The mesh size is the average of the measurements of any se ries of 20 consecutive meshes for nets having 75 or more meshes, and 10 con secutive meshes for nets having fewer than 75 meshes. The mesh in the regu lated portion of the net is measured at least five meshes away from the lacings, running parallel to the long axis of the net. (b) Exemptions. Unless otherwise re stricted by this part, the minimum mesh-size requirements specified in paragraph (a)(1) of this section do not apply to: (1) Vessels issued a summer flounder moratorium permit, a Summer Floun der Small-Mesh Exemption Area letter of authorization (LOA), required under paragraph (b)(1)(i) of this section, and fishing from November 1 through April 30 in the exemption area, which is east of the line that follows 72°30.0′ W. long. until it intersects the outer boundary of the EEZ (copies of a map depicting the area are available upon request from the Regional Administrator). Ves sels fishing under the LOA shall not fish west of the line. Vessels issued a permit under § 648.4(a)(3)(iii) may tran sit the area west or south of the line, if the vessel’s fishing gear is stowed in a manner prescribed under § 648.108(e), so that it is not ‘‘available for immediate use’’ outside the exempted area. The Regional Administrator may terminate this exemption if he/she determines, after a review of sea sampling data, that vessels fishing under the exemp tion are discarding more than 10 per cent, by weight, of their entire catch of summer flounder per trip. If the Re gional Administrator makes such a de termination, he/she shall publish noti fication in the FEDERAL REGISTER ter minating the exemption for the re mainder of the exemption season. (i) Requirements. (A) A vessel fishing in the Summer Flounder Small-Mesh Exemption Area under this exemption must have on board a valid LOA issued by the Regional Administrator. (B) The vessel must be in enrolled in the exemption program for a minimum of 7 days. (ii) [Reserved] (2) Vessels fishing with a two-seam otter trawl fly net with the following configuration, provided that no other nets or netting with mesh smaller than 5.5 inches (14.0 cm) are on board: (i) The net has large mesh in the wings that measures 8 inches (20.3 cm) to 64 inches (162.6 cm). (ii) The first body section (belly) of the net has 35 or more meshes that are at least 8 inches (20.3 cm). (iii) The mesh decreases in size throughout the body of the net to 2 inches (5 cm) or smaller towards the terminus of the net. (iv) The Regional Administrator may terminate this exemption if he/she de termines, after a review of sea sam pling data, that vessels fishing under the exemption, on average, are dis carding more than 1 percent of their entire catch of summer flounder per trip. If the Regional Administrator 950 50 CFR Ch. VI (10–1–22 Edition) § 648.109 makes such a determination, he/she shall publish notification in the FED ERAL REGISTER terminating the exemp tion for the remainder of the calendar year. (c) Net modifications. No vessel subject to this part shall use any device, gear, or material, including, but not limited to, nets, net strengtheners, ropes, lines, or chafing gear, on the top of the regulated portion of a trawl net; except that, one splitting strap and one bull rope (if present) consisting of line or rope no more than 3 inches (7.2 cm) in diameter may be used if such splitting strap and/or bull rope does not con strict, in any manner, the top of the regulated portion of the net, and one rope no greater than 0.75 inches (1.9 cm) in diameter extending the length of the net from the belly to the ter minus of the codend along the top, bot tom, and each side of the net. ‘‘Top of the regulated portion of the net’’ means the 50 percent of the entire reg ulated portion of the net that (in a hy pothetical situation) will not be in con tact with the ocean bottom during a tow if the regulated portion of the net were laid flat on the ocean floor. For the purpose of this paragraph (c), head ropes shall not be considered part of the top of the regulated portion of a trawl net. A vessel shall not use any means or mesh configuration on the top of the regulated portion of the net, as defined paragraph (c) of this section, if it obstructs the meshes of the net or otherwise causes the size of the meshes of the net while in use to diminish to a size smaller than the minimum speci fied in paragraph (a) of this section. (d) Mesh obstruction or constriction. (1) A fishing vessel may not use any mesh configuration, mesh construction, or other means on or in the top of the net, as defined in paragraph (c) of this sec tion, that obstructs the meshes of the net in any manner. (2) No person on any vessel may pos sess or fish with a net capable of catch ing summer flounder in which the bars entering or exiting the knots twist around each other. (e) Stowage of nets. Otter trawl ves sels retaining 100 lb (45.3 kg) or more of summer flounder from May 1 through October 31, or 200 lb (90.6 kg) or more of summer flounder from November 1 through April 30, and subject to the minimum mesh size requirement of paragraph (a)(1) of this section may not have ‘‘available for immediate use’’ any net or any piece of net that does not meet the minimum mesh size re quirement, or any net, or any piece of net, with mesh that is rigged in a man ner that is inconsistent with the min imum mesh size requirement. Nets must be stowed and not available for immediate use as defined in § 648.2. (f) The minimum net mesh require ment may apply to any portion of the net. The minimum mesh size and the portion of the net regulated by the minimum mesh size may be adjusted pursuant to the procedures in § 648.102. [76 FR 60629, Sept. 29, 2011, as amended at 79 FR 52583, Sept. 4, 2014; 81 FR 51378, Aug. 4, 2016] § 648.109 Sea turtle conservation. Sea turtle regulations are found at 50 CFR parts 222 and 223. [76 FR 60630, Sept. 29, 2011] § 648.110 Summer flounder framework adjustments to management meas ures. (a) Within season management action. The MAFMC may, at any time, initiate action to add or adjust management measures within the Summer Floun der, Scup, and Black Sea Bass FMP if it finds that action is necessary to meet or be consistent with the goals and objectives of the FMP. (1) Adjustment process. The MAFMC shall develop and analyze appropriate management actions over the span of at least two MAFMC meetings. The MAFMC must provide the public with advance notice of the availability of the recommendation(s), appropriate justification(s) and economic and bio logical analyses, and the opportunity to comment on the proposed adjust ment(s) at the first meeting and prior to and at the second MAFMC meeting. The MAFMC’s recommendations on ad justments or additions to management measures must come from one or more of the following categories: Adjust ments within existing ABC control rule levels; adjustments to the existing MAFMC risk policy; introduction of new AMs, including sub-ACTs; min imum fish size; maximum fish size; 951 Fishery Conservation and Management § 648.111 gear restrictions; gear requirements or prohibitions; permitting restrictions; recreational possession limit; rec reational seasons; closed areas; com mercial seasons; commercial trip lim its; commercial quota system includ ing commercial quota allocation proce dure and possible quota set asides to mitigate bycatch; recreational harvest limit; specification quota setting proc ess; FMP Monitoring Committee com position and process; description and identification of essential fish habitat (and fishing gear management meas ures that impact EFH); description and identification of habitat areas of par ticular concern; regional gear restric tions; regional season restrictions (in cluding option to split seasons); re strictions on vessel size (LOA and GRT) or shaft horsepower; operator permits; changes to the SBRM, includ ing the CV-based performance stand ard, the means by which discard data are collected/obtained, fishery strati fication, the process for prioritizing ob server sea-day allocations, reports, and/or industry-funded observers or ob server set aside programs; any other commercial or recreational manage ment measures; any other management measures currently included in the FMP; and set aside quota for scientific research. Issues that require signifi cant departures from previously con templated measures or that are other wise introducing new concepts may re quire an amendment of the FMP in stead of a framework adjustment. (2) MAFMC recommendation. After de veloping management actions and re ceiving public testimony, the MAFMC shall make a recommendation to the Regional Administrator. The MAFMC’s recommendation must include sup porting rationale, if management measures are recommended, an anal ysis of impacts, and a recommendation to the Regional Administrator on whether to issue the management measures as a final rule. If the MAFMC recommends that the management measures should be issued as a final rule, it must consider at least the fol lowing factors and provide support and analysis for each factor considered: (i) Whether the availability of data on which the recommended manage ment measures are based allows for adequate time to publish a proposed rule, and whether the regulations would have to be in place for an entire harvest/fishing season; (ii) Whether there has been adequate notice and opportunity for participa tion by the public and members of the affected industry in the development of recommended management measures; (iii) Whether there is an immediate need to protect the resource; and (iv) Whether there will be a con tinuing evaluation of management measures adopted following their im plementation as a final rule. (3) NMFS action. If the MAFMC’s rec ommendation includes adjustments or additions to management measures and, if after reviewing the MAFMC’s recommendation and supporting infor mation: (i) NMFS concurs with the MAFMC’s recommended management measures and determines that the recommended management measures should be issued as a final rule based on the factors in paragraph (a)(2) of this section, the measures will be issued as a final rule in the FEDERAL REGISTER. (ii) If NMFS concurs with the MAFMC’s recommended management measures and determines that the rec ommended management measures should be published first as a proposed rule, the measures will be published as a proposed rule in the FEDERAL REG ISTER. After additional public com ment, if NMFS concurs with the MAFMC recommendation, the meas ures will be published as a final rule in the FEDERAL REGISTER. (iii) If NMFS does not concur, the MAFMC will be notified in writing of the reasons for the non-concurrence. (4) Emergency actions. Nothing in this section is meant to derogate from the authority of the Secretary to take emergency action under section 305(e) of the Magnuson-Stevens Act. (b) [Reserved] [76 FR 60630, Sept. 29, 2011, as amended at 76 FR 1849, Dec.. 29, 2011; 80 FR 37196, June 30, 2015] § 648.111 Block Island Sound Transit Area. (a) Vessels not issued a summer flounder Federal moratorium or party/ 952 50 CFR Ch. VI (10–1–22 Edition) § 648.120 charter permit, and recreational fish ing participants fishing exclusively in state waters may transit with summer flounder harvested from state waters on board through Federal waters of the EEZ within Block Island Sound, north of a line connecting Montauk Light, Montauk Point, NY, and Block Island Southeast Light, Block Island, RI; and west of a line connecting Point Judith Light, Point Judith, RI, and Block Is land Southeast Light, Block Island, RI. Within this area, possession of summer flounder is permitted regardless of the minimum or maximum size (as applica ble), possession limit, and seasons out lined in §§ 648.104, 648.105, and 648.106, provided no fishing takes place from the vessel while in Federal waters of the EEZ, the vessel complies with state regulations, and is in continuous tran sit. During such transit through this area, commercial gear must be stowed in accordance with the definition of ‘‘not available for immediate use’’ found at § 648.2, and party/charter ves sels and recreational participants must have all bait and hooks removed from fishing rods, and any summer flounder on board must be stored in a cooler or container. (b) The requirements of this transit zone are not necessary or applicable for recreational fishery participants dur ing years when conservation equiva lency has been adopted under § 648.107 conservation equivalency measures and recreational Federal measures are waived. [84 FR 65703, Nov. 29, 2019] Subpart H—Management Measures for the Scup Fishery SOURCE: 61 FR 43426, Aug. 23, 1996, unless otherwise noted. § 648.120 Scup Annual Catch Limit (ACL). (a) The Scup Monitoring Committee shall recommend to the MAFMC sepa rate ACLs for the commercial and rec reational scup fisheries, the sum total of which shall be equal to the ABC rec ommended by the SSC. (1) Sector allocations. The commercial and recreational fishing sector ACLs will be established consistent with the allocation guidelines contained in the Summer Flounder, Scup, and Black Sea Bass FMP. (2) Periodicity. The scup commercial and recreational sector ACLs may be established on an annual basis for up to 3 years at a time, dependent on wheth er the SSC provides single or multiple year ABC recommendations. (b) Performance review. The Scup Monitoring Committee shall conduct a detailed review of fishery performance relative to the sector ACLs at least every 5 years. (1) If one or both of the sector-spe cific ACLs is exceeded with a frequency greater than 25 percent (i.e., more than once in 4 years or any 2 consecutive years), the Scup Monitoring Com mittee will review fishery performance information and make recommenda tions to the MAFMC for changes in measures intended to ensure ACLs are not as frequently exceeded. (2) The MAFMC may specify more frequent or more specific ACL perform ance review criteria as part of a stock rebuilding plan following a determina tion that the scup stock has become overfished. (3) Performance reviews shall not substitute for annual reviews that occur to ascertain if prior year ACLs have been exceeded but may be con ducted in conjunction with such re views. [76 FR 60631, Sept. 29, 2011] § 648.121 Scup Annual Catch Target (ACT). (a) The Scup Monitoring Committee shall identify and review the relevant sources of management uncertainty to recommend ACTs for the commercial and recreational fishing sectors as part of the scup specification process. The Scup Monitoring Committee rec ommendations shall identify the spe cific sources of management uncer tainty that were considered, technical approaches to mitigating these sources of uncertainty, and any additional rel evant information considered in the ACT recommendation process. (1) Sectors. Commercial and rec reational specific ACTs shall be less than or equal to the sector-specific ACLs. The Scup Monitoring Committee shall recommend any reduction in