        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 223 and 224
        [Docket No. 160614518-6518-01]
        RIN 0648-XE685
        Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List Chambered Nautilus as Threatened or Endangered Under the Endangered Species Act

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

          ACTION:
          90-Day petition finding, request for information.

          SUMMARY:

          We, NMFS, announce a 90-day finding on a petition to list the chambered nautilus (Nautilus pompilius) as a threatened species or an endangered species under the Endangered Species Act (ESA). We find that the petition, along with information readily available in our files, presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We will conduct a status review of this species to determine whether the petitioned action is in fact warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information pertaining to the chambered nautilus from any interested party.

          DATES:
          Information and comments on the subject action must be received by October 25, 2016.

          ADDRESSES:
          You may submit comments, information, or data on this document, identified by the code NOAA-NMFS-2016-0098, by either of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0098. Click the “Comment Now” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Maggie Miller, NMFS Office of Protected Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910, USA.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Copies of the petition and related materials are available on our Web site at http://www.fisheries.noaa.gov/pr/species/invertebrates/chambered-nautilus.html.

          FOR FURTHER INFORMATION CONTACT:
          Maggie Miller, Office of Protected Resources, 301-427-8403.

        SUPPLEMENTARY INFORMATION:
        Background

        On May 31, 2016, we received a petition from the Center for Biological Diversity to list the chambered nautilus (N. pompilius) as a threatened species or an endangered species under the ESA. Copies of the petition are available upon request (see ADDRESSES).
        ESA Statutory, Regulatory, and Policy Provisions and Evaluation Framework

        Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When it is found that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, we conclude the review with a finding as to whether, in fact, the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a “may be warranted” finding does not prejudge the outcome of the status review.

        Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). Because the chambered nautilus is an invertebrate, the DPS option does not apply. Under the ESA, a species or subspecies is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, or “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
        ESA-implementing regulations issued jointly by NMFS and the U.S. Fish and Wildlife Service (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating whether substantial information is contained in a petition, we must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
        At the 90-day finding stage, we evaluate the petitioners' request based upon the information in the petition including its references considered together with the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners' sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude it supports the petitioners' assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone precludes a positive 90-day finding if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue.

        To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species faces an extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1).
        Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information indicating that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.

        Many petitions identify risk classifications made by nongovernmental organizations, such as the International Union for Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but such classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (http://www.natureserve.org/prodServices/pdf/NatureServeStatusAssessmentsListing-Dec%202008.pdf). Additionally, species classifications under IUCN and the ESA are not equivalent; data standards, criteria used to evaluate species, and treatment of uncertainty are also not necessarily the same. Thus, when a petition cites such classifications, we will evaluate the source of information that the classification is based upon in light of the standards on extinction risk and impacts or threats discussed above.
        Taxonomy of the Petitioned Chambered Nautilus

        The petition notes that the taxonomy of the nautiloids is controversial. Based on the Integrated Taxonomic Information System, which has a disclaimer that it “is based on the latest scientific consensus available . . . [but] is not a legal authority for statutory or regulatory purposes,” there are presently five recognized species within the genus Nautilus: N. belauensis (Saunders, 1981), N. macromphalus (Sowerby, 1849), N. pompilius (Linnaeus, 1758), N. repertus (Iredale, 1944), and N. stenomphalus (Sowerby, 1849). However, a review and analysis of recent genetic and morphological data suggests that perhaps only two of these five species are valid: N. pompilius and N. macromphalus, with the other three species more parsimoniously placed within N. pompilius (Ward et al., 2016). While the taxonomy of the Nautilus genus may not be fully resolved, we find that the information provided by the petitioner and readily available in our files presents substantial scientific or commercial information indicating that the petitioned entity, N. pompilius, constitutes a valid “species” and is thus is a type of entity that may be eligible for listing under the ESA.
        Range, Distribution and Life History

        The chambered nautilus is found in tropical, coastal reef, deep-water habitats of the Indo-Pacific. Its known range includes waters off American Samoa, Australia, Fiji, India, Indonesia, Malaysia, New Caledonia, Papua New Guinea, Philippines, Solomon Islands, and Vanuatu, and it may also potentially occur in waters off China, Myanmar, Western Samoa, Thailand, and Vietnam (Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 2016). Within its range, the chambered nautilus has a patchy distribution and is unpredictable in its area of occupancy. Based on multiple research studies, the presence of suitable habitat on coral reefs does not necessarily indicate the likelihood of chambered nautilus occurrence (CITES 2016). Additionally, the chambered nautilus is limited in its horizontal and vertical distribution throughout its range due to physiological constraints. Physiologically, the chambered nautilus cannot tolerate temperatures above approximately 25 °C or depths exceeding around 750-800 meters (m) (Ward et al., 1980; Carlson 2010). At depths greater than 800 m, the hydrostatic pressure will cause the shell of the nautilus to implode, thereby killing the animal (Ward et al., 1980). Based on these physiological constraints, the chambered nautilus is considered to be an extreme habitat specialist, found in association with steep-sloped forereefs with sandy, silty, or muddy-bottomed substrates. Within these habitats, the species ranges from around 100 m depths (which may vary depending on the water temperature) to around 500 m depths (CITES 2016). The chambered nautilus does not swim in the open water column (likely due to its vulnerability to predation), but rather remains near the reef slopes and bottom substrate, and thus can be best characterized as a nektobenthic or epibenthic species (Barord et al., 2014; CITES 2016).

        Chambered nautiluses are described as deep-sea scavenging generalists and opportunistic predators. They have up to 90 retractable appendages, or tentacles, that they use to dig in the substrate and feed on a variety of organisms, including fish, crustaceans, echinoids, nematodes, cephalopods, other marine invertebrates, and detrital matter (Saunders and Ward 2010). The chambered nautilus also has an acute sense of olfaction and can easily smell odors (such as prey) from significant distances (Basil et al., 2000).

        The general life history characteristics of the chambered nautilus are that of a rare, long-lived, late-maturing, and slow-growing marine invertebrate species, with likely low reproductive output. Circumferential growth rate for the chambered nautilus has been estimated to range from 0.053 mm/day to 0.23 mm/day, with growth rates slowing as the animal approaches maturity (Dunstan et al., 2010; Dunstan et al., 2011b); however, overall shell size appears to vary among regions, with smaller shell diameters (170-180 mm) noted around Fiji and the Philippines (Tanabe et al., 1990), and larger diameters (up to 222 mm) off Western Australia. Additionally, the species exhibits sexual dimorphism, with males consistently growing to larger sizes than females (Saunders and Ward 2010). Males also tend to dominate the sex ratios in populations, with observed proportions ranging from 69 to 95 percent in observed populations (Saunders and Ward 2010).

        Chambered nautilus longevity is at least 20 years, with age to maturity between 10 and 17 years (Dunstan et al., 2011b; Ward et al., 2016). Very little is known regarding nautilus reproduction in the wild. Observations of captive animals suggest that nautiluses reproduce sexually and have multiple reproductive cycles over the course of their lifetime. Based on data from captive N. belauensis and N. macromphalus individuals, female nautiluses may lay up to 10 to 20 eggs per year, which hatch after a lengthy embryonic period of around 10 to 12 months (Uchiyama and Tanabe 1999; Barord and Basil 2014). There is no larval phase, with juveniles hatching at around 22-23 mm in diameter, and potentially migrating to deeper and cooler waters (Barord and Basil 2014); however, live hatchlings have rarely been observed in the wild.

        Overall, given the life history traits and physiological habitat constraints of N. pompilius, chambered nautilus populations (discussed in more detail below) are extremely susceptible to depletion and vulnerable to local extirpations (CITES 2016).
        Analysis of Information Presented in the Petition Along With Information Readily Available in NMFS' Files
        The petition contains information on the chambered nautilus, including its taxonomy, morphological characteristics, geographic distribution, habitat, population abundance and trends, and factors contributing to the species' decline. According to the petition, all five causal factors in section 4(a)(1) of the ESA are adversely affecting the continued existence of the chambered nautilus: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors.

        In the following sections, we summarize and evaluate the information presented in the petition, which we consider together with information readily available in our files on the status of N. pompilius, including demographic factors, and the ESA section 4(a)(1) factors that may be affecting its risk of global extinction. Based on this evaluation, we determine whether a reasonable person would conclude that an endangered or threatened listing under the ESA may be warranted for this species.
        Abundance and Population Trends

        The global abundance of the chambered nautilus is unknown, with no available historical baseline population data. In fact, the first study to estimate baseline population size and density for the species, in a given area, was only recently conducted by Dunstan et al., (2011a). This study examined the N. pompilius population at Osprey Reef, an isolated coral seamount off Australia's northeastern coast, with no history of nautilus exploitation. Based on data collected from 2000 to 2006, the authors estimated that the population at Osprey Reef consisted of between 844 and 4,467 individuals, with a density estimate of 13.6 individuals per square kilometer (km2) (Dunstan et al., 2011a). Subsequent research, conducted by Barord et al., (2014), provided density estimates of nautiluses (species not identified) from four locations in the Indo-Pacific: The Panglao region of the Bohol Sea, Philippines, with 0.03 individuals per km2, Taena Bank near Pago Pago harbor, American Samoa, with 0.16 individuals per km2, the Beqa Passage in Viti Levu, Fiji, with 0.21 individuals per km2, and the Great Barrier Reef along a transect from Cairns to Lizard Island, Australia, with 0.34 individuals per km2. With the exception of the Bohol Sea, these populations are located in areas where fishing for nautilus does not occur, suggesting that nautiluses may be naturally rare, or that other unknown factors, besides fishing, may be affecting abundance of these species. The authors also indicate that the population estimates from this study may, in fact, be overestimates as they used baited remote underwater video systems to attract individuals to the observation area (Barord et al., 2014). In either case, these very low population estimates suggest that chambered nautiluses are especially vulnerable to exploitation, with limited capacity to recover from depletion. This theory is further supported by the comparison between the population size in the Panglao region of the Bohol Sea, where nautilus fishing is occurring, and the unfished sites in American Samoa, Fiji, and Australia, with the Bohol Sea population estimated to be less than 20 percent of the smallest unfished population (Barord et al., 2014).

        In terms of current trends in abundance, populations are considered to be stable in areas where fisheries are absent (e.g., Fiji and Solomon Islands), although data to confirm this are lacking (CITES 2016). In the Osprey Reef population discussed above, Dunstan et al. (2010) used mark-and-recapture methods to examine the trend in the catch per unit effort (CPUE) of individuals over a 12-year period. Analysis of the CPUE data showed a slight increase of 28 percent from 1997 to 2008, and while this increase was not statistically significant, the results indicate a stable N. pompilius population in this unexploited area (Dunstan et al., 2010). However, in locations where fisheries have operated or currently operate, anecdotal declines and observed decreases in catches of nautilus species are reported. Citing multiple personal communications, the 2016 proposal to include the Family Nautilidae in Appendix II of CITES (CITES 2016) noted declines of N. pompilius in Indian and New Caledonian waters, where commercial harvest occurred in the past for several decades, and in Indonesian waters, where harvest is suspected to be increasing. In fact, traders in Indonesia have observed a significant decrease in the number of nautiluses collected over the past 10 years, which may be an indication of a declining and depleted population (Freitas and Krishnasamy 2016). In the Philippines, Dunstan et al. (2010) estimated that the CPUE of Nautilus spp. from four main nautilus fishing locations in the Palawan region has decreased by around 80 percent over a period of less than 30 years. Furthermore, in Tawi Tawi, Cayangacillo, and Tañon Strait/Cebu, Philippines, fisheries that once existed for chambered nautilus have since been discontinued due to the rarity of the species, with Alcala and Russ (2002) noting the likely extirpation of N. pompilius from Tañon Strait in the late 1980s. The fact that the species has not yet recovered in the Tañon Strait, despite an absence of nautilus fishing in over two decades, further supports the susceptibility of the species to exploitation and its limited capability to repopulate an area after depletion.
        Overall, given the species' natural rarity throughout its range, its presence as small, sparsely distributed, and highly fragmented populations, and its low fecundity and limited dispersal capability, with geographic barriers to movement and strict habitat requirements, we find that even a small number of mortalities could potentially have significant negative population-level effects that may lead to regional extirpations (as may have already occurred in Tañon Strait) and potentially extinction. As such, we find that these current demographic risks could increase the species' vulnerability to present and future threats to the point where the species may be at a risk of extinction and thus warrant further investigation.
        Analysis of ESA Section 4(a)(1) Factors
        While the petition presents information on each of the ESA section 4(a)(1) factors, we find that the information presented in the petition, together with information readily available within our files, regarding the overutilization of the chambered nautilus for commercial purposes is substantial enough to make a determination that a reasonable person would conclude that this species may warrant listing as endangered or threatened based on this factor alone. As such, we focus our discussion below on the evidence of overutilization for commercial purposes, with comments on the inadequacy of existing regulatory mechanisms to control the exploitation of chambered nautiluses, and present our evaluation of the information regarding these factors and their impact on the extinction risk of the species. However, we note that in the status review for this species, we will evaluate all ESA section 4(a)(1) factors to determine whether any one or a combination of these factors are causing declines in the species or likely to substantially negatively affect the species within the foreseeable future to such a point that the chambered nautilus is at risk of extinction or likely to become so in the foreseeable future.
        Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

        Information presented in the petition and readily available in our files suggests that the primary threat to the chambered nautilus is overutilization for commercial purposes—mainly, harvest for the international nautilus shell trade. Chambered nautilus shells, which have a distinctive coiled interior, are traded as souvenirs to tourists and shell collectors and also used in jewelry and home décor items (where either the whole shell is sold as a decorative object or parts are used to create shell-inlay designs) (CITES 2016). The trade in the species is largely driven by the international demand for their shells and shell products since fishing for nautiluses has been found to have no cultural or historical relevance (Dunstan et al., 2010; De Angelis 2012; CITES 2016; Freitas and Krishnasamy 2016). Nautilus meat is also not locally in demand (or used for subsistence) but rather sold or consumed as a by-product of fishing for the nautilus shells (De Angelis 2012; CITES 2016). While all species of nautiluses are found in international trade, N. pompilius, being the most widely distributed, is the species most commonly traded (CITES 2016).

        Although most of the trade in chambered nautiluses originates from the range countries where fisheries exist or have existed for the species, particularly the Philippines and Indonesia, commodities also come from those areas with no known fisheries (such as Fiji and Solomon Islands). Other countries of origin for N. pompilius products include Australia, China, Taiwan, India, Malaysia, New Caledonia, Papua New Guinea, Vanuatu, and Vietnam (Freitas and Krishnasamy 2016). Known consumer markets for chambered nautilus products include the Middle East (United Arab Emirates, Saudi Arabia), Australia, Singapore, Malaysia, Indonesia, Philippines, Hong Kong, Russia, Korea, Japan, China, Taiwan and India, with major consumer markets noted in the European Union (Italy, France, Portugal), the United Kingdom, and the United States (Freitas and Krishnasamy 2016). In fact, between 2005 and 2014, the United States imported more than 900,000 chambered nautilus products, comprising at least 104,476 individuals and equating to a little over 1,000 individuals traded annually (CITES 2016). The vast majority of these U.S. imports originated from the Philippines (85 percent of the traded commodities), followed by Indonesia (12 percent), China (1.4 percent), and India (1.3 percent) (CITES 2016).

        Because harvest of the chambered nautilus is primarily demand-driven for the international shell trade, with no historical or cultural importance, the intensive nautilus fisheries that develop to meet this demand tend to follow a boom-bust cycle that lasts around a decade or two before becoming commercially nonviable (Dunstan et al., 2010; De Angelis 2012; CITES 2016). Given that the chambered nautilus exists as small, isolated populations, harvest of the species may continue for many years within a region, with the fisheries serially depleting each population until the species is essentially extirpated from that region (CITES 2016). Commercial harvest of the species is presently occurring or has occurred in the Philippines, Indonesia, New Caledonia, Papua New Guinea, and also potentially in China, Palau, Thailand and Vanuatu (CITES 2016). However, based on the number of commodities entering the international trade, it is likely that the Philippines and Indonesia have the largest commercial fisheries for chambered nautilus, with multiple harvesting sites throughout these nations (CITES 2016). Although information on harvest levels and the status of chambered nautilus populations within this portion of its range is limited, the available data, discussed below, do provide evidence of the negative impact of these fisheries and overutilization of the species that speak to the likelihood of its risk of extinction in the future.
        As mentioned previously, significant declines of N. pompilius have been observed in both the Philippines and Indonesia, primarily a result of overutilization of the species. For example, in 1971, Haven (1972 cited in Haven (1977)) found that Tañon Strait, Philippines, was an abundant source of N. pompilius. From 1971 to 1972, around 3,200 individuals were captured for study (Haven 1977). Filipino fisherman also began fishing this location for nautilus shells around this time, with the numbers of fishermen tripling during subsequent years; however, by 1975, the impact of this harvest on the species was already evident (Haven 1977). Fishermen in 1975 reported having to move operations to deeper water as catches were now rare at shallower depths, and the number of individuals per trap had also decreased (Haven 1977). Additionally, although the number of fishermen had tripled in those 3 years, and therefore fishing effort for the species intensified, the catch did not see an associated increase, indicating a likely decrease in the abundance of the species within the area (Haven 1977). From October to November of 1975, fishermen reported around 220 trapped individuals, a number similar to the 300 individuals caught by Haven (1977) in the month of October in 1971 and prior to the establishment of the nautilus fishery. By the early 1980s, CITES (2016) reports that around 5,000 chambered nautiluses were trapped per year in Tañon Strait, but by 1987, the population was estimated to have declined by 97 percent, with the species considered to be commercially extinct and potentially extirpated from the area (Alcala and Russ 2002).

        This level of harvest (5,000 chambered nautilus individuals/year), which, based on the information from the Tañon Strait, appears to lead to local extirpations, is being greatly exceeded in a number of other areas throughout the chambered nautilus' range. In Tibiao, Antique province, in northwestern Panay Island, Philippines, del Norte-Campos (2005) estimated annual yield of the chambered nautilus to be around 12,200 individuals for the entire fishery (based on data from 2001-2002). Based on personal communication provided in CITES (2016), in the Palawan, Philippines nautilus fishery, 9,091 nautiluses were harvested in 2013 and 37,341 in 2014. This level of harvest is particularly concerning given the significant declines already observed in the Palawan nautilus fisheries. In four of the five main nautilus fishing areas in this province, Dunstan et al. (2010) estimated a decline in CPUE of the species ranging from 70 to 90 percent (depending on the fishing site) over the course of 6 to 24 years. Based on interviews of fishermen, when they began fishing for nautiluses, initial harvest in the majority of the fishing sites was estimated to be over 20,000 nautiluses/year (Dunstan et al., 2010), a level that was clearly unsustainable for the species and consequently led to significant declines in abundance of the species within these areas. The one main fishing region in Palawan that did not show a decline was the municipality of Balabac; however, the authors note that this fishery is relatively new (active for less than 8 years), with fewer fishermen, and, as such, may not have yet reached the point where the population crashes or declines become evident in catch rates (Dunstan et al., 2010). Given that the estimated annual catches in the Balabac municipality ranged from 4,000 to 42,000 individuals in 2008 (Dunstan et al., 2010), with more recent Palawan harvest levels reportedly over 37,000 in 2014 (CITES 2016), this level of annual harvest, based on the trends from the other Palawan fishing sites (Dunstan et al., 2010), may likely lead to significant population declines in chambered nautilus in the near future, increasing the species' risk of extirpation from this portion of its range. Already, “crashed fisheries” and, hence, severely depleted populations of nautiluses have been identified at Tawi Tawi (an island province in southwestern Philippines) and Cagayancillo (an island in the Palawan province) (Dunstan et al., 2010). From the available data in the petition and readily available in our files on the life history of the species, including current trends and evidence of a lack of recovery in populations that have not been fished for over 30 years, we find that present utilization of the species in this portion of its range may have significant negative effects on the viability of the chambered nautilus populations and, consequently, contribute to an extinction risk that is cause for concern and warrants further investigation.

        Overutilization of the chambered nautilus populations off Indonesia may also be a threat contributing to the species' risk of extinction that is cause for concern. Despite Indonesia's current prohibition (implemented in 1999) on the harvest and trade of the species, both domestic and internationally, it is apparent that both are still occurring throughout Indonesia (Nijman et al., 2015; Freitas and Krishnasamy 2016). In fact, based on the increasing number of chambered nautilus commodities originating from Indonesia, it is suggested that nautilus fishing has potentially shifted to Indonesian waters due to depletion of the species in the Philippines (CITES 2016). However, similar to the trend observed in the Philippines, a pattern of serial depletion of nautiluses due to harvesting in Indonesia is emerging, with both fishermen and traders noting a significant decline in the numbers of chambered nautiluses over the last 10 years (CITES 2016; Freitas and Krishnasamy 2016). For example, fishermen in North Lombok note that they used to trap around 10 to 15 nautiluses in one night, but currently catch only 1 to 3 a night (Freitas and Krishnasamy 2016). Similarly, in Bali, fishermen reported nightly catches of around 10 to 20 nautiluses until 2005, after which yields have been much less (Freitas and Krishnasamy 2016). While fishing for chambered nautiluses has essentially decreased in western Indonesia (likely due to a depletion of the stocks), the main trade centers for nautilus commodities are still located here (i.e., Java, Bali, Sulawesi and Lombok). The sources of nautilus shells for these centers now appears to originate from eastern Indonesian waters (including northeastern Central Java, East Java, and West Nusa Tengarra eastward) where it is thought that nautilus populations may still be abundant enough to support economically viable fisheries, and where enforcement of the current N. pompilius prohibition appears to be weaker (Nijman et al., 2015; Freitas and Krishnasamy 2016). Data collected from two large open markets in Indonesia (Pangandaran and Pasir Putih) and wholesale traders indicate that chambered nautiluses are still being offered for sale as of 2013, with one of the wholesalers noting that he exports merchandise to Malaysia and Saudi Arabia on a bimonthly basis (Nijman et al., 2015). Based on seizure data from 2005 to 2013, over 3,000 chambered nautiluses were confiscated by Indonesian authorities (Nijman et al., 2015). Additionally, De Angelis (2012), citing a personal communication, estimated that around 25,000 nautilus specimens were exported from Indonesia to China for the Asian meat market between 2007 and 2010. Given the ongoing demand for chambered nautilus products, the apparent disregard of current prohibition regulations by collectors and traders and lack of enforcement, the observed declining trends in N. pompilius fisheries, and the increasing number of nautilus commodities originating from Indonesia, we find that the available information in the petition, together with information readily available in our files, suggest current N. pompilius harvest levels within this portion of its range may be contributing to the overutilization of the species and increasing its risk of extinction that is cause for concern.

        Active nautilus fisheries also existed and still exist throughout most of the remaining extent of the species' known range, including in India, New Caledonia, Vanuatu, and potentially Papua New Guinea. In India, CITES (2016) states that the chambered nautilus has been exploited for decades. A 2007 survey found the species was being sold in 20 percent of the major coastal tourist markets in southern India, despite the species being protected from capture and trade by domestic law since 2000 (CITES 2016). In New Caledonia, intensive nautilus fisheries reportedly existed in the past. It is unclear whether commercial fisheries still exist today for the species; however, based on data from 2008, N. pompilius shells are still being sold to tourists (CITES 2016). In Vanuatu and Papua New Guinea, targeted chambered nautilus fisheries may be present; however, these fisheries have yet to be investigated (NMFS 2014; CITES 2016). Overall, out of the 11 nations in which N. pompilius is known to occur, over half historically or current have targeted nautilus fisheries.
        We note that, while the species is afforded some protection in the southern portion of its range, particularly in waters off Australia where there is no commercial harvest for the species (CITES 2016), it is unclear whether these populations may be enough to protect the species from potential extinction throughout all or a significant portion of its range. This conclusion is based on the considerations described above, including the significant uncertainties associated with the species' life history and its high demographic risks, as supported by information presented in the petition together with information readily available in our files. The potential contribution of these populations to the species will be investigated further during the status review of the species.

        Although the petition identifies numerous other threats to the chambered nautilus, including habitat degradation, predation, climate change, and ocean acidification, we find that the information presented in the petition, together with information readily available in our files, suggest that overutilization of the species for commercial purposes, in and of itself, may be a threat impacting the chambered nautilus to such a degree that raises concern that this species may be at risk of extinction presently or in the foreseeable future. Due to the apparent lack of enforcement and the inadequacy of existing regulatory mechanisms, particularly throughout the northern portion of the species' range, the ongoing demand for the species in the international shell trade, the significant demographic risks faced by the species (including extremely low productivity and rare, fragmented, and isolated populations with limited dispersal capability) and the evidence of substantial declines in populations and potential extirpations, we find that present harvest levels and associated mortality may be placing the species at such a risk of extinction that would lead a reasonable person to conclude that N. pompilius may warrant listing as a threatened or endangered species throughout all or a significant portion of its range.
        Petition Finding
        After reviewing the information presented in the petition, and considering information readily available in our files, and based on the above analysis, we conclude the petition presents substantial scientific information indicating that the petitioned action of listing the chambered nautilus as a threatened or endangered species may be warranted. Therefore, in accordance with section 4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 CFR 424.14(b)(3)), we will commence a status review of this species.

        During the status review, we will determine whether the chambered nautilus is in danger of extinction (endangered) or likely to become so (threatened) throughout all or a significant portion of its range. We now initiate this review, and thus, N. pompilius is considered to be a candidate species (69 FR 19975; April 15, 2004). Within 12 months of the receipt of the petition (May 31, 2017), the statute requires that we make a finding as to whether listing the chambered nautilus as an endangered or threatened species is warranted as required by section 4(b)(3)(B) of the ESA. If listing is warranted, we will publish a proposed rule and solicit public comments before developing and publishing a final rule.
        Information Solicited

        To ensure that the status review is based on the best available scientific and commercial data, we are soliciting information on whether the chambered nautilus is endangered or threatened. Specifically, we are soliciting information in the following areas: (1) Historical and current distribution and abundance of this species throughout its range; (2) historical and current population trends; (3) life history in marine environments; (4) historical and current data on nautilus catch and bycatch in industrial, commercial, artisanal, and recreational fisheries worldwide; (5) impacts to known chambered nautilus habitats; (5) data on the trade of chambered nautilus products, including shells, meat, and live specimens; (6) impacts of the ecotourism industry on chambered nautilus behavior and survival; (7) predation rates on chambered nautilus; (8) any current or planned activities that may adversely impact the chambered nautilus or its habitat; (9) ongoing or planned efforts to protect and restore this species and its habitat; (10) population structure information, such as genetics data; and (11) management, regulatory, and enforcement information. We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents.
        References Cited

        A complete list of references is available upon request to the Office of Protected Resources (see ADDRESSES).
        Authority

        The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: August 22, 2016.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2016-20478 Filed 8-25-16; 8:45 am]
       BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 0907211158-91159-01]
        RIN 0648-AY04
        Fisheries of the Northeastern United States; Recreational Management Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing Year 2010

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes management measures for the 2010 summer flounder, scup, and black sea bass recreational fisheries. The implementing regulations for these fisheries require NMFS to publish recreational measures for the fishing year and to provide an opportunity for public comment. The intent of these measures is to prevent overfishing of the summer flounder, scup, and black sea bass resources.

          DATES:
          Comments must be received by 5 p.m. local time, on May 27, 2010.

          ADDRESSES:
          You may submit comments, identified by 0648-AY04, by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov

          • Fax: (978) 281-9135, Attn: Comments on 2010 Summer Flounder, Scup, and Black Sea Bass Recreational Management Measures, 0648-AY04
          • Mail and hand delivery: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on 2010 Summer Flounder, Scup, and Black Sea Bass Recreational Measures, 0648-AY04.”

          Instructions: No comments will be posted for public viewing until after the comment period has closed. All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
          NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

          Copies of the recreational management measures document, including the Environmental Assessment, Regulatory Impact Review, and Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) and other supporting documents for the recreational management measures are available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901. These documents are also accessible via the Internet at http://www.nero.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Michael Ruccio, Fishery Policy Analyst, (978) 281-9104.

        SUPPLEMENTARY INFORMATION:
        Background
        The summer flounder, scup, and black sea bass fisheries are managed cooperatively under the provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) developed by the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission), in consultation with the New England and South Atlantic Fishery Management Councils. The management units specified in the FMP include summer flounder (Paralichthys dentatus) in U.S. waters of the Atlantic Ocean from the southern border of North Carolina (NC) northward to the U.S./Canada border, and scup (Stenotomus chrysops) and black sea bass (Centropristis striata) in U.S. waters of the Atlantic Ocean from 35° E. 13.3′ N. lat. (the latitude of Cape Hatteras Lighthouse, Buxton, NC) northward to the U.S./Canada border.

        The Council prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations implementing the FMP appear at 50 CFR part 648, subparts A (general provisions), G (summer flounder), H (scup), and I (black sea bass). General regulations governing U.S. fisheries also appear at 50 CFR part 600. States manage summer flounder within 3 nautical miles of their coasts, under the Commission's plan for summer flounder, scup, and black sea bass. The Federal regulations govern vessels fishing in Federal waters of the exclusive economic zone (EEZ), as well as vessels possessing a Federal fisheries permit, regardless of where they fish.

        The FMP established Monitoring Committees (Committees) for the three fisheries, consisting of representatives from the Commission, the Council, state marine fishery agency representatives from MA to NC, and NMFS. The FMP and its implementing regulations require the Committees to review scientific and other relevant information annually and to recommend management measures necessary to achieve the recreational harvest limits established for the summer flounder, scup, and black sea bass fisheries for the upcoming fishing year. The FMP limits these measures to minimum fish size, possession limit, and fishing season.
        The Council's Demersal Species Committee, and the Commission's Summer Flounder, Scup, and Black Sea Bass Management Board (Board) then consider the Committees' recommendations and any public comment in making their recommendations to the Council and the Commission, respectively. The Council then reviews the recommendations of the Demersal Species Committee, makes its own recommendations, and forwards them to NMFS for review. The Commission similarly adopts recommendations for the states. NMFS is required to review the Council's recommendations to ensure that they are consistent with the targets specified for each species in the FMP before ultimately implementing measures for Federal waters.
        Quota specifications for the 2010 summer flounder, scup, and black sea bass fisheries were published on December 22, 2009 (74 FR 67978), and became effective January 1, 2010. The black sea bass specifications (i.e., recreational harvest limit and commercial quota) were increased by emergency rule on February 10, 2010 (75 FR 6586). Based on the specifications, the 2010 coastwide recreational harvest limits are 8,586,440 lb (3,896 mt) for summer flounder, 3,011,074 lb (1,366 mt) for scup, and 1,830,390 lb (830 mt) for black sea bass. The specification rules did not establish recreational measures, in large part because a substantial portion of 2009 recreational catch data was not yet available when the Council made its recreational harvest limit recommendation to NMFS.
        All minimum fish sizes discussed hereafter are total length measurements of the fish, i.e., the straight-line distance from the tip of the snout to the end of the tail while the fish is lying on its side. For black sea bass, total length measurement does not include the caudal fin tendril. All possession limits discussed below are per person. All landings projection data are based on data from the Marine Recreational Fisheries Statistics Survey (MRFSS) Waves 1-4 (January-August) unless otherwise indicated.
        Summer Flounder
        Recreational landings for 2009 were estimated to have been 6.40 million lb (2,903 mt) and were 12 percent below the 2009 recreational harvest limit of 7.16 million lb (2,248 mt). The 2010 coastwide harvest limit is 8.59 million lb (3,896 mt), a 20-percent increase from the 2009 harvest limit. The Council and Commission have recommended the use of conservation equivalency to manage the 2010 summer flounder recreational fishery.
        NMFS implemented Framework Adjustment 2 to the FMP (Framework Adjustment 2) on July 29, 2001 (66 FR 36208), which established a process that makes conservation equivalency an option for the summer flounder recreational fishery. Conservation equivalency allows each state to establish its own recreational management measures (possession limits, minimum fish size, and fishing seasons) to achieve its state harvest limit provided by the Commission, as long as the combined effect of all of the states' management measures achieves the same level of conservation as would Federal coastwide measures developed to achieve the overall recreational harvest limit, if implemented by all of the states.
        The Council and Board recommend that either on an annual basis state-specific recreational measures be developed (conservation equivalency) or coastwide management measures be implemented by all states to ensure that the recreational harvest limit will not be exceeded. Even when the Council and Board recommend conservation equivalency, the Council must specify a set of coastwide measures that would apply if conservation equivalency is not approved for use in Federal waters.
        If conservation equivalency is recommended, and following confirmation that the proposed state measures developed through the Commission's technical and policy review processes achieve conservation equivalency, NMFS may waive the permit condition found at § 648.4(b), which requires federally permitted vessels to comply with the more restrictive management measures when state and Federal measures differ. In such a situation, federally permitted charter/party permit holders and recreational vessels fishing for summer flounder in the EEZ would then be subject to the recreational fishing measures implemented by the state in which they land summer flounder, rather than the coastwide measures.
        In addition, the Council and the Board must recommend precautionary default measures when recommending conservation equivalency. The Commission would require adoption of the precautionary default measures by any state that either does not submit a summer flounder management proposal to the Commission's Summer Flounder Technical Committee (Technical Committee), or that submits measures that would not exceed the harvest limit for that state. The precautionary default measures are defined as the set of measures that would not exceed the harvest limit for any state on a coastwide basis.
        In previous years when conservation equivalency has been jointly recommended by the Council and Commission, NMFS has provided a description of the management targets, technical, and other Commission-imposed requirements for states to follow when designing state-specific equivalent measures. The process that results in selection of appropriate data and analytic techniques for technical review of potential state conservation equivalent measures and the process by which the Commission evaluates and recommends proposed conservation equivalent measures is wholly a function of the Commission and its individual member states. Inclusion of such descriptions may add confusion and imply that the development, evaluation, and recommendation process is part of the combined Council and NMFS responsibilities of the conservation equivalency system. Individuals seeking information regarding the specific state measure development process or the Commission process should contact the marine fisheries agency in the state of interest, the Commission, or both.

        Once states select their final 2010 summer flounder management measures through their respective development, analytical, and review processes and submit them to the Commission, the Commission will conduct further independent review and evaluation of the state-submitted proposals, ultimately notifying NMFS as to which individual state proposals have been approved or disapproved. NMFS has no input or authority in the state or Commission management measure development and review process. However, NMFS retains the final authority either to approve or to disapprove the use of conservation equivalency in place of the coastwide measures, and will publish its determination as a final rule in the Federal Register to establish the 2010 recreational measures for these fisheries.

        States that do not submit conservation equivalency proposals, or whose proposals are disapproved by the Commission, will be required by the Commission to adopt the precautionary default measures. In the case of states that are initially assigned precautionary default measures, but subsequently receive Commission approval of revised state measures, NMFS will publish a notice in the Federal Register announcing a waiver of the permit condition at § 648.4(b).
        The precautionary default measures recommended by the Council and Board during their joint December 2009 meeting are for a 21.5-inch (54.61-cm) minimum fish size, a possession limit of two fish, and an open season of May 1 through September 30, 2010.
        As described above, for each fishing year, NMFS implements either coastwide measures or conservation equivalent measures at the final rule stage. The coastwide measures recommended by the Council and Board for 2010 are a 19.5-inch (49.53-cm) minimum fish size, a possession limit of two fish, and an open season from May 1 to September 30, 2010.
         In this action, NMFS proposes to implement conservation equivalency with a precautionary default backstop, as previously outlined, for states that either fail to submit conservation equivalent measures or whose measures are not approved by the Commission. NMFS proposes the non-preferred alternative of coastwide measures, as previously described, for use if conservation equivalency is not approved in the final rule. The coastwide measures would be waived if conservation equivalency is approved in the final rule.
        Scup
        The 2010 scup recreational harvest limit is 3.01 million lb (1,366 mt), a 16-percent increase from the 2009 recreational harvest limit of 2.59 million lb (1,175 mt). Recreational landings in 2009 are estimated to have been 4.01 million lb (1,819 mt), exceeding the recreational harvest limit by 55 percent. Because of this overage, recreational landings must be reduced by 30 percent from 2009 levels for the 2010 fishery to stay within the established recreational harvest limit.
        However, the Council initially recommended measures that would reduce 2010 landings by 35 percent to remain within the 2010 recreational harvest limit based on a preliminary landings estimate that was slightly higher. The Council's recommendation was made in early December and, subsequent to the Council's recommendation, and subsequent additional analysis of the 2009 recreational landings has been conducted by a technical working group at the request of the Council, Commission, and NMFS. The working group was tasked to re-examine a specific situation regarding anomalies from the MRFSS Wave 4 Massachusetts party vessel sector estimate. The analysis conducted by this working group resulted in a revised Wave 4 estimate that changed the level of reduction from 2009 landing levels required for 2010 from 35 to 30 percent. As a result, the Council's preferred alternative for an 11.0-inch (27.94-cm) minimum fish size, a 10-fish per person possession limit, and open fishing seasons of January 1-February 28 and June 12-September 26 is more restrictive than necessary to remain within the 2010 recreational harvest limit.
        The Council also considered an alternative that is projected to provide the revised 30-percent reduction from 2009 landings in 2010: A 10.5-inch (26.67-cm) minimum fish size; a 10-fish per person possession limit; and an open season of June 6-September 26. Consistent with the revised catch analysis for 2009, NMFS proposes to implement the Council's non-preferred suite of measures that achieve the 30-precent reduction in 2010 landings from 2009 levels for Federal waters in the 2010 scup recreational fishery: A 10.5-inch (26.67-cm) minimum fish size; a 10-fish per person possession limit; and an open season of June 6-September 26. NMFS acknowledges that the Commission meeting has indicated its intent to continue managing the recreational scup fishery through a Commission-based conservation equivalency program that has no comparable measures in the Federal FMP. Preliminary information presented during the February 2010 Commission indicated that the Commission's 2010 scup recreational measures for state waters may differ from the measures of this proposed rule. Very little of the scup recreational harvest comes from the Federal waters of the EEZ. The total scup recreational harvest from Federal waters for 2008 was approximately 4 percent.
        Black Sea Bass
        The process for 2010 black sea bass recreational management measures has been complicated by many unusual, and at times, unforeseeable events. Recreational landings in 2009 were estimated to have been between 1.94 and 3.31 million lb (882 and 1,501 mt), based on evaluation of actual landings data through August and projections of final 2009 landings. Either scenario exceeds the 2009 recreational harvest limit of 1.14 million lb (517 mt). NMFS implemented an emergency rule (74 FR 51092; October 5, 2009) to close Federal waters of the EEZ to black sea bass recreational fishing for a period of 180 days, based on recreational landings data through August 2009, because of the magnitude of the overage. When the closure was implemented in October 2009, the 2010 recreational harvest limit had not yet been finalized, development of recreational management measures had not yet begun, and data on final recreational landings for 2009 were incomplete. While issuing the closure, NMFS anticipated that the magnitude of the 2009 overage was such that a reduction in landings from 2009 levels in 2010 would be likely. Thus, the fishery was closed for 180 days, as opposed to implementing a closure through the end of the fishing year, December 31, 2009. It was expected that in the interim between the start of the closure on October 5, 2009, and the end of the 180-day closure period, the typical process for establishing both the 2010 recreational harvest limit and recreational management measures would occur. However, the process has been atypical, for the following reasons.
        In December 2009, the Council and Commission developed recommended management measures for the 2010 recreational fishery. The measures were designed to achieve a 66-percent reduction in landings from projected 2009 levels, which was consistent with the black sea bass recreational harvest limit of 1,137,810 lb (516 mt) that had been adopted by the Council and Commission in August 2009. The 66-percent reduction was calculated using 2009 landings data from Waves 1-4 (January-August), and projected landings for Waves 5 and 6 (September-December), as data for Waves 5 and 6 were not available at the time the Council and Commission met.

        On December 22, 2009, NMFS published a final rule implementing the specifications for the 2010 fishing year. These specifications, effective January 1, 2010, included total allowable landings (TAL) for black sea bass of 2.3 million lb (1,043 mt), of which 1,137,810 lb (516 mt) was allocated to the recreational fishery as the recreational harvest limit. This TAL and recreational harvest limit was consistent with the August 2009 recommendations of the Council and Commission.

        In early January 2010, the Council's Scientific and Statistical Committee (SSC) convened to reconsider its previous recommendations regarding the Acceptable Biological Catch (ABC) for black sea bass for the 2010 fishing year. The SSC concluded that the ABC for black sea bass could be increased from 2.71 million lb (1,229 mt) to 4.5 million lb (2,041 mt), which was consistent with catch levels established for 2008.
        In response, on January 15, 2010, the Council submitted a letter to NMFS requesting that the agency take emergency action to increase the black sea bass TAL for 2010 consistent with the revised ABC. The letter requested that NMFS increase both the 2010 commercial quota and recreational harvest limit for black sea bass.
        On February 10, 2010, in response to the Council's request, NMFS published an emergency rule to increase the 2010 black sea bass TAL from 2.3 million lb (1,043 mt) to 3.7 million lb (1,678 mt), and to increase the recreational harvest limit to 1,830,390 lb (830 mt).
        In mid-February 2010, the Commission and Council met separately to reconsider the recreational fishery management measures developed in December 2009. The measures adopted in December 2009 were designed to achieve a 66-percent reduction in black sea bass landings relative to 2009, but with the increased recreational harvest limit implemented in the emergency rule, only a 44-percent reduction appeared necessary. Both the Council and Commission retained the status quo minimum fish size of 12.5 inches (31.75 cm) and 25-fish bag limit, but the two groups adopted different seasons. The Commission adopted a single season from May 22-September 12, and the Council recommended a split season from May 22-August 8 and September 4-October 4. Both sets of measures are projected to achieve a 44-percent reduction in landings.
        Information on final 2009 black sea bass recreational total landings are not yet available. However, since the Council and Commission reconsidered 2010 black sea bass recreational management measures based on a 44-percent reduction in landings, the preliminary 2009 MRFSS Wave 6 (November-December) data have become available. The EEZ was closed for the entire 2009 Wave 6 period, and landings from 2009 Wave 6 are 75 percent lower than 2008 Wave 6 landings. The EEZ was also closed from October 5-31, 2009, during Wave 5 (September-October), but data on Wave 5 are not yet available.
        The projection methodology utilized by both the Council and Commission that indicated a 44-percent reduction in landings was necessary used 2008 Wave 6 data and assumed that the EEZ closure had no effect on landings during the October 5-December 31 period (i.e., partial Wave 5 and all of Wave 6). This assumption was reasonable at the time, given that: (1) The Council and Commission anticipated that some amount of landings would continue to occur in state waters that remained open; and (2) preliminary Wave 5 data were expected to be available in mid-December to provide a more informed assessment of the closure impacts. However, issues related to the adequacy of survey sample size for the 2009 Wave 5 sampling period required additional analyses to be conducted by the NMFS Office of Science and Technology to ensure suitability of the 2009 Wave 5 estimate. Final data for Wave 5 are expected in mid-April 2010.
        NMFS has conducted additional analysis of the 2009 projected landings, making use of the preliminary 2009 Wave 6 data and modifying the assumptions regarding black sea bass landings during the October 5-31, 2009, EEZ closure timeframe. It is evident from this analysis that the 2009 black sea bass landings are lower than previously projected; however, in the multiple projection scenarios conducted, the 2009 recreational harvest limit was still exceeded and a reduction in 2010 landings still appears to be necessary. These alternative projections suggest that the percent reduction in landings from 2009 levels is less than the 44 percent in the Council and Commission projection analysis.
        To ensure that final 2010 black sea bass recreational management measures are promulgated in a timely fashion and make use of the best available information regarding 2009 landings, NMFS is proposing the following course of concurrent actions:
        1. NMFS has extended the existing recreational fishery closure in the EEZ until 11:59 p.m., May 21, 2010. This will ensure that the 2010 recreational fishery will begin no earlier than the Council and Commission preferred start date of May 22, 2010.
        2. NMFS will analyze 2009 Wave 5 and final 2009 black sea bass recreational landings data as soon as they are available. These data are expected in mid-April. Using these data will provide the best information possible on the amount of reduction required in the 2010 fishery.
        3. NMFS proposes to implement the Council and Commission-recommended minimum fish size of 12.0 inches (31.75 cm), possession limit of 25 fish per person, and season starting date of May 22, 2010. The final season length will be determined by the updated analysis of final 2009 landings data and implemented in the final rule for this action, following analysis and public comment.
        It is not practicable to hold this proposed rule for 2010 black sea bass recreational management measures until after final 2009 landings data are available. In regards to season length, NMFS will consider the amount of potential liberalization possible based on the final 2009 landings data and will, to the extent practicable, extend the fishing season from May 22 onward. Under the Council's current preferred alternative, a 44-percent reduction in landings is provided by a May 22-August 8 and September 4-October 4 fishing season; therefore, liberalization could involve the addition of days from August 9-September 3 and/or from October 5 onward, as permitted by any revision to the required reduction in 2010 landings resulting from final 2009 landings data analysis. Through this proposed rule, NMFS is requesting specific comment from the Council, Commission, and interested public on how to best extend the fishing season, should the final analysis warrant that. The full extent of potential season length will not be known until final 2009 landings data can be analyzed. NMFS expects that a final rule to implement the 2010 black sea bass recreational season will be issued and effective well in advance of the Commission's recommended August 8, 2010, mid-season closure.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble and in the SUMMARY of this proposed rule. A summary of the analysis follows. A copy of the complete IRFA is available from the Council (see ADDRESSES).
        This proposed rule does not duplicate, overlap, or conflict with other Federal rules. The proposed action could affect any recreational angler who fishes for summer flounder, scup, or black sea bass in the EEZ or on a party/charter vessel issued a Federal permit for summer flounder, scup, and/or black sea bass. However, the only regulated entities affected by this action are party/charter vessels issued a Federal permit for summer flounder, scup, and/or black sea bass, and so the IRFA focuses upon the expected impacts on this segment of the affected public. These vessels are all considered small entities for the purposes of the RFA, i.e., businesses in the recreational fishery with gross revenues of up to $6.5 million. These small entities can be specifically identified in the Federal vessel permit database and would be impacted by the recreational measures, regardless of whether they fish in Federal or state waters. Although fishing opportunities by individual recreational anglers may be impacted by this action, they are not considered small entities under the RFA.
        The Council estimated that the proposed measures could affect any of the 948 vessels possessing a Federal charter/party permit for summer flounder, scup, and/or black sea bass in 2009, the most recent year for which complete permit data are available. However, only 328 vessels reported active participation in the recreational summer flounder, scup, and/or black sea bass fisheries in 2008, the most recent year for which complete fishing vessel trip reports (i.e., logbooks) are available.
        In the IRFA, the no-action alternative (i.e., maintenance of the regulations as codified) is defined as implementation of the following: (1) For summer flounder, coastwide measures of a 20-inch (50.8-cm) minimum fish size, a 2-fish possession limit, and a season from May 1 through September 30; (2) for scup, a 10.5-inch (26.67-cm) minimum fish size, a 15-fish possession limit, and open seasons of January 1 through February 28, and October 1 through October 31; and (3) for black sea bass, a 12-inch (30.48-cm) minimum size, a 25-fish possession limit, and an open season of January 1 through December 31.
        The impacts of the proposed action on small entities (i.e., federally permitted party/charter vessels in each state in the Northeast region) were analyzed, assessing potential changes in gross revenues for all 24 combinations of alternatives proposed. Although NMFS's RFA guidance recommends assessing changes in profitability as a result of proposed measures, the quantitative impacts were instead evaluated using changes in party/charter vessel revenues as a proxy for profitability. This is because reliable cost and revenue information is not available for charter/party vessels at this time. Without reliable cost and revenue data, profits cannot be discriminated from gross revenues. As reliable cost data become available, impacts to profitability can be more accurately forecast. Similarly, changes to long-term solvency were not assessed, due both to the absence of cost data and because the recreational management measures change annually according to the specification-setting process. Effects of the various management measures were analyzed by employing quantitative approaches, to the extent possible. Where quantitative data were not available, qualitative analyses were utilized. Management measures proposed under the summer flounder conservation equivalency alternative (Summer Flounder Alternative 1) have yet to be adopted; therefore, potential losses under this alternative could not be analyzed in conjunction with various alternatives proposed for scup and black sea bass. Since conservation equivalency allows each state to tailor specific recreational fishing measures to the needs of that state, while still achieving conservation goals, it is likely that the measures developed under this alternative, when considered in combination with the measures proposed for scup and black sea bass, would have fewer overall adverse effects than any of the other combinations that were analyzed.
        Impacts for other combinations of alternatives were examined by first estimating the number of angler trips aboard party/charter vessels in each state in 2009 that would have been affected by the proposed 2010 management measures. All 2009 party/charter fishing trips that would have been constrained by the proposed 2010 measures in each state were considered to be affected trips. MRFSS data indicate that anglers took 34.66 million fishing trips in 2009 in the Northeastern U.S., and that party/charter anglers accounted for 1.41 million of the angler fishing trips, private/rental boat trips accounted for 17.34 million angler fishing trips, and shore trips accounted for 15.91 million recreational angler fishing trips.
        There is very little empirical evidence available to estimate how the party/charter vessel anglers might be affected by the proposed fishing regulations. If the proposed measures discourage trip-taking behavior among some of the affected anglers, economic losses may accrue to the party/charter vessel industry in the form of reduced access fees. On the other hand, if the proposed measures do not have a negative impact on the value or satisfaction the affected anglers derive from their fishing trips, party/charter revenues would remain unaffected by this action. In an attempt to estimate the potential changes in gross revenues to the party/charter vessel industry in each state, two hypothetical scenarios were considered: A 25-percent reduction and a 50-percent reduction in the number of fishing trips that are predicted to be affected by implementation of the management measures in the Northeast (ME through NC) in 2010.
        Total economic losses to party/charter vessels were then estimated by multiplying the number of potentially affected trips in each state in 2010, under the two hypothetical scenarios, by the estimated average access fee of $62.38 paid by party/charter anglers in the Northeast in 2009. Finally, total economic losses were divided by the number of federally permitted party/charter vessels that participated in the summer flounder fisheries in 2009 in each state (according to homeport state in the Northeast Region Permit Database) to obtain an estimate of the average projected gross revenue loss per party/charter vessel in 2010. The analysis assumed that angler effort and catch rates in 2010 will be similar to 2009.

        The Council noted that this method is likely to overestimate the potential revenue losses that would result from implementation of the proposed measures in these three fisheries for several reasons. First, the analysis likely overestimates the potential revenue impacts of these measures because some anglers would continue to take party/charter vessel trips, even if the restrictions limit their landings. Also, some anglers may engage in catch and release fishing and/or target other species. It was not possible to estimate the sensitivity of anglers to specific management measures. Second, the universe of party/charter vessels that participate in the fisheries is likely to be even larger than presented in these analyses, as party/charter vessels that do not possess a Federal summer flounder, scup, or black sea bass permit because they fish only in state waters are not represented in the analyses. Considering the large proportion of landings from state waters (e.g., more than 97 percent of summer flounder and 96 percent of scup landings in 2008, respectively), it is probable that some party/charter vessels fish only in state waters and, thus, do not hold Federal permits for these fisheries. Third, economic losses are estimated under two hypothetical scenarios: (1) A 25-percent; and (2) a 50-percent reduction in the number of fishing trips that are predicted to be affected by implementation of the management measures in the Northeast in 2010. Reductions in fishing effort of this magnitude in 2010 are not likely to occur, given the fact that the proposed measures do not prohibit anglers from keeping at least some of the fish they catch, or the fact that there are alternative species to harvest. Again, it is likely that at least some of the potentially affected anglers would not reduce their effort when faced with the proposed landings restrictions, thereby contributing to the potential overestimation of potential impacts for 2010.
        Impacts of Summer Flounder Alternatives
        The proposed action for the summer flounder recreational fishery would limit coastwide catch to 8.59 million lb (3,896 mt) by imposing coastwide Federal measures throughout the EEZ. As described earlier, upon confirmation that the proposed state measures would achieve conservation equivalency, NMFS may waive the permit condition found at § 648.4(b), which requires federally permitted vessels to comply with the more restrictive management measures when state and Federal measures differ. Federally permitted charter/party permit holders and recreational vessels fishing for summer flounder in the EEZ then would be subject to the recreational fishing measures implemented by the state in which they land summer flounder, rather than the coastwide measures.
        Because states have yet to develop specific 2010 management measures, it is not yet possible to analyze the potential impacts of Summer Flounder Alternative 1, which would implement conservation equivalency. However, conservation equivalent recreational management measures allow each state to develop specific summer flounder recreational measures, which would allow the fishery to operate in each state during critical fishing periods while still achieving the conservation objectives. This should help mitigate potential adverse economic impacts. Therefore, the Council concluded in its analysis that Summer Flounder Alternative 1 would likely have the lowest potential adverse impact of the alternatives considered for the 2010 summer flounder recreational fishery.
        Because states have a choice of developing specific measures in the Commission's conservation equivalency process, it is expected that the states would adopt conservation equivalent measures that result in fewer adverse economic impacts than the more restrictive proposed precautionary default measures (i.e., 21.5-inch (54.61-cm) minimum fish size, a possession limit of two fish, and an open season of May 1 through September 30, 2010). The precautionary default is a sub-alternative that may be implemented under specific conditions, as outlined in the preamble of this rule. As such, the Council conducted analysis of the potential impact of implementing precautionary default measures in 2010. Under the precautionary default measures, impacted trips are defined as trips taken in 2009 that landed at least one summer flounder smaller than 21.5 inches (54.61 cm), landed more than two summer flounder, or landed summer flounder during closed seasons. The analysis concluded that implementation of precautionary default measures could affect 0.63 percent of the party/charter vessel trips in the Northeast, including those trips where no summer flounder were caught.
        The impacts of Summer Flounder Alternative 2 for coastwide measures, which would be implemented by NMFS if conservation equivalency is disapproved in the final rule, i.e., a 19.5-inch (49.53-cm), minimum fish size, a two-fish possession limit, and a fishing season from May 1 through September 30, were evaluated in the Council's analysis. Impacted trips were defined as individual angler trips taken aboard party/charter vessels in 2009 that landed at least one summer flounder smaller than 19.5 inches (49.53 cm), that landed more than two summer flounder or landed summer flounder during closed seasons. The analysis concluded that the measures would affect 0.56 percent of the party/charter vessel trips in the Northeast.
        Continuation of the summer flounder coastwide management measures (i.e., a 19.5-inch (49.53-cm) minimum fish size, two-fish possession limit, and a May 1 through September 1 fishing season) is expected to constrain 2010 landings to the recreational harvest limit; however, continuation of those measures would be more restrictive than necessary under the summer flounder rebuilding plan requirement established 2010 recreational harvest limit.
        Impacts of Scup Alternatives
        The proposed action for the scup recreational fishery would implement Federal coastwide management measures throughout the EEZ. As described earlier in the preamble, a conservation equivalent program is utilized by the Commission to manage state waters. Federally permitted charter/party permit holders and recreational vessels fishing for scup in the EEZ then would be subject to the recreational fishing measures implemented by NMFS; charter/party vessels participating solely in state waters without a Federal permit would be subject to the provisions adopted by the Commission; federally permitted vessels participating in both state and Federal waters would be subject to the more restrictive of the two measures implemented to manage the 2010 scup recreational fishery.
        Scup Alternative 1 (an 11.0-inch (27.94-cm) minimum fish size, a 10-fish per person possession limit, and open seasons of January 1 through February 29 and June 12 through September 26) is projected to reduce scup landings in 2010 by 35 percent from 2009 levels, assuming comparable measures in both state and Federal waters. As explained elsewhere in the preamble, state and Federal measures are expected to differ; however, very little of the scup recreational harvest occurs in Federal waters of the EEZ. Affected trips under Scup Alternative 1 were defined as trips taken in 2009 that landed at least one scup smaller than 11.0 inches (27.94 cm), landed more than 10 scup, or landed scup during the closed seasons (March 1-June 12 and September 27-December 31). Analysis concluded that 2.15 percent of federally permitted party/charter vessel trips could be affected by this alternative. This alternative is more restrictive than is required for 2010.
         The non-preferred scup coastwide alternative (Scup Alternative-2; 10.5-inch (26.67-cm) minimum fish size, 15-fish per person possession limit, and open seasons of January 1 through February 29 and October 1 through October 15) is not projected to achieve the necessary conservation required for the 2010 scup recreational fishery. Thus, Scup Alternative 2 is inconsistent with the goals and objectives of the FMP and the Magnuson-Stevens Act.

        Scup Alternative 3 measures (a 10.5-inch minimum fish size, 10 fish per person possession limit, and fishing seasons June 6-September 26) are expected to constrain landings to the 2010 recreational harvest limit if comparable measures are utilized in state waters. However, as noted elsewhere in the preamble, the Commission is likely to implement more liberal measures in state waters that may result in the 2010 recreational harvest limit being exceeded, regardless of what measures are taken for Federal waters-including closure of Federal waters of the EEZ. Affected trips under Scup Alternative 3 were defined as trips taken in 2009 that landed at least one scup smaller than 10.5 inches, landed more than 7 but less than 10 scup, or landed scup in the closed seasons. The analysis concluded that this alternative could impact 2.24 percent of Federally permitted party/charter vessel trips in 2009, if implemented.
        Impacts of Black Sea Bass Alternatives
        The proposed action for the black sea bass recreational fishery would limit coastwide catch to 1.83 million lb (830 mt) by imposing coastwide Federal measures throughout the EEZ. The impact of Black Sea Bass Alternative 1 (a 12.5-inch (31.75-cm) minimum fish size, a 25-fish per person possession limit, and an open season of June 1-30 and September 1-30), is projected to reduce black sea bass landings by 66 percent in 2010 from 2009 levels. This is more restrictive than necessary, but would likely ensure that landings remain below the 2010 recreational harvest limit. Impacted trips were defined as trips taken in 2009 that landed at least one black sea bass smaller than 12.5 inches (31.75 cm), landed more than 25 black sea bass, or landed black sea bass during the proposed closed seasons (January 1-May 31 and October 1-December 21). Analysis concluded that 6.44 percent of federally permitted party/charter vessel trips could be affected by this alternative.
        The non-preferred black sea bass coastwide alternative for status quo (Black Sea Bass Alternative 2; 12.5-inch (31.75-cm) minimum fish size, 25-fish per person possession limit, and no closed season) is not expected to constrain 2010 landings to the recreational harvest limit; therefore, continuation of those measures in Federal waters would be inconsistent with the FMP and the Magnuson-Stevens Act.
        Black Sea Bass Alternative 3 (a 12.5-inch (31.75-cm) minimum fish size, 10-fish per person possession limit, and May 22-September 12 fishing season), would reduce landings by 44 percent. Implementation of this alternative would result in a greater reduction than is required for the 2010 recreational black sea bass fishery.
        Black Sea Bass Alternative 4, (a 12.5-inch (31.75-cm) minimum fish size, 25-fish per person possession limit, and May 22-August 8 and September 4-October 4 fishing seasons), is expected to reduce landings by 44 percent from 2009 levels. Affected trips are defined as trips taken in 2009 that landed one black sea bass smaller than 12.5 inches, landed more than 25 black sea bass, or landed black sea bass during closed seasons. Analysis concluded that 3.88 percent of Northeast party/charter trips could be affected by the measures of Black Sea Bass Alternative 4. The Council concluded that the different seasons and possession limits proposed under Alternative 4 provide a lesser negative impact than do the measures of Alternative 3, which is also projected to achieve the currently required 44-percent reduction in landings.
        NMFS may consider further liberalization of the 2010 black sea bass fishing season utilized in concert with a 12.5-inch (31.75-cm) minimum fish size, 25-fish per person possession limit if analysis of final 2009 data indicate that action is justified. If such liberalization occurs with the addition of fishing days in either the August 9-September 3 closed season or after October 5, the impact to party/charter vessels would be further reduced.
        Potential 2010 Regional Economic Impact Analysis Summary
        Regionally, projected federally permitted party/charter revenue losses in 2010 range from $6.4 million to $21.9 million in sales, $2.1 to $7.3 million in income, and between 128 and 437 jobs, if a 25-percent reduction in the number of affected trips occurs. The estimated losses are approximately twice as high if a 50-percent reduction in affected trips is assumed to occur. Potential revenue losses in 2010 could differ for federally permitted party/charter vessels that land more than one of the regulated species. The cumulative maximum gross revenue loss per vessel varies by the combination of permits held and by state. All 24 potential combinations of management alternatives for summer flounder, scup, and black sea bass are predicted to affect party/charter vessel revenues to some extent in all of the Northeast coastal states. Although potential losses were estimated for party/charter vessels operating out of ME and NH, these results are suppressed for confidentiality purposes. Average party/charter losses for federally permitted vessels operating in the remaining states are estimated to vary across the 24 combinations of alternatives. For example, in NY, average losses are predicted to range from a high of $5,990 to a low of $1,474 per vessel, assuming a 25-percent reduction in effort, as described above. Average gross revenue losses per vessel under each of the 24 combinations of alternatives were generally highest in NC followed by MA, NY, MD, NJ, RI, VA, CT then DE. Across states, average gross projected revenue losses range from a low of $399 per vessel in DE to $44,434 in NC.
        Summary
        The 2010 recreational harvest limits for summer flounder, scup, and black sea bass are 20-, 16-, and 60-percent higher, respectively, than the recreational harvest limits for 2009. However, current projection estimates of 2009 recreational landings indicate that scup will exceed the 2009 recreational harvest limit by 80 percent, and black sea bass landings will exceed the recreational harvest limit by 190 percent, based on data through MRFSS Waves 1-4. No overages are projected in the 2009 summer flounder recreational fishery.
        As a result, the proposed recreational management measures for summer flounder in the Commission's conservation equivalency are likely to be similar or slightly more liberal for 2010 (i.e., either smaller minimum fish size, higher possession limits, and/or longer fishing seasons) under the proposed conservation equivalency system (Summer Flounder Alternative 1) than those in place in 2009. If the Commission approves state-developed measures as conservational equivalent to the coastwide measures, measures for Federal waters adopted by waiving § 648.4(b) may also be similar or slightly liberal for 2010 if NMFS approves conservation equivalency in the final rule.
        The proposed measures for both scup and black sea bass are more restrictive than the measures in place for 2009.
        The proposed management measures, or management system in the case of conservation equivalency, were chosen because they allow for the maximum level of recreational landings, while allowing the NMFS to achieve the objectives of the FMP. Summer flounder conservation equivalency permits states to implement management measures tailored, to some degree, to meet the needs of their individual recreational fishery participants, provided the level of reduction is equal to the overall reduction needed coastwide, consistent with Framework Adjustment 2 to the FMP.

        The proposed measures for scup are expected to achieve the required reduction in 2010 landings from 2009 levels, provided that comparable state measures are implemented through the Commission. Because it appears likely that the 2010 Commission measures may differ from Federal measures, NMFS will consider public comment and more closely examine the Commission measures to determine the likelihood that overfishing could occur as a result of the combined proposed Federal and Commission measures before publishing a final rule. The majority of scup recreational harvest occurs within state waters.
        The proposed black sea bass management measures were selected because they are the only set of measures proposed by the Council that are projected permit the maximum amount of landings under the 2010 recreational harvest limit. As stated elsewhere in the preamble, NMFS will consider final 2009 landings data and public comment, and may extend the 2010 black sea bass fishing season, consistent with measures designed to achieve the 2010 recreational harvest limit, in the final rule.
        There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action.

          List of Subjects in 50 CFR Part 648

        Fisheries, Fishing, Reporting and recordkeeping requirements.

          Dated: April 22, 2010.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

        1. The authority citation for part 648 continues to read as follows:

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

        2. Section 648.102 is revised to read as follows:

          § 648.102
          Time restrictions.
          Unless otherwise specified pursuant to § 648.107, vessels that are not eligible for a moratorium permit under § 648.4(a)(3) and fishermen subject to the possession limit may fish for summer flounder from May 1 through September 30. This time period may be adjusted pursuant to the procedures in § 648.100.
          3. In § 648.103, paragraph (b) is revised to read as follows:

          § 648.103
          Minimum fish sizes.
          (b) Unless otherwise specified pursuant to § 648.107, the minimum size for summer flounder is 19.5 inch (49.53 cm) TL for all vessels that do not qualify for a moratorium permit, and charter boats holding a moratorium permit if fishing with more than three crew members, or party boats holding a moratorium permit if fishing with passengers for hire or carrying more than five crew members.
          4. In § 648.105, the first sentence of paragraph (a) is revised to read as follows:

          § 648.105
          Possession restrictions.
          (a) Unless otherwise specified pursuant to § 648.107, no person shall possess more than two summer flounder in, or harvested from, the EEZ, unless that person is the owner or operator of a fishing vessel issued a summer flounder moratorium permit, or is issued a summer flounder dealer permit. ***
          5. In § 648.107, paragraph (a) introductory text and paragraph (b) are revised to read as follows:

          § 648.107
          Conservation equivalent measures for the summer flounder fishery.
          (a) The Regional Administrator has determined that the recreational fishing measures proposed to be implemented by Massachusetts through North Carolina for 2010 are the conservation equivalent of the season, minimum fish size, and possession limit prescribed in §§ 648.102, 648.103, and 648.105(a), respectively. This determination is based on a recommendation from the Summer Flounder Board of the Atlantic States Marine Fisheries Commission.
          (b) Federally permitted vessels subject to the recreational fishing measures of this part, and other recreational fishing vessels subject to the recreational fishing measures of this part and registered in states whose fishery management measures are not determined by the Regional Administrator to be the conservation equivalent of the season, minimum size, and possession 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 recommendation from the Summer Flounder Board of the Atlantic States Marine Fisheries Commission, shall be subject to the following precautionary default measures: Season — May 1 through September 30; minimum size- 21.5 inches (54.61 cm); and possession limit-two fish.
          6. In § 648.122, paragraph (g) is revised to read as follows:

          § 648.122
          Season and area restrictions.
          (g) Time restrictions. Vessels that are not eligible for a moratorium permit under § 648.4(a) (6), and fishermen subject to the possession limit specified in § 648.125(a), may not possess scup, except from June 6 through September 27. This time period may be adjusted pursuant to the procedures in § 648.120.
          7. In § 648.125, the first sentence of paragraph (a) is revised to read as follows:

          § 648.122
          Possession limit.
          (a) No person shall possess more than 10 scup in, or harvested from, the EEZ unless that person is the owner or operator of a fishing vessel issued a scup moratorium permit, or is issued a scup dealer permit.***
          8. Section 648.142 is revised to read as follows:

          § 648.142
          Time restrictions.
          Vessels that are not eligible for a moratorium permit under § 648.4(a)(7), and fishermen subject to the possession limit specified in § 648.145(a), may possess black sea bass from May 22 through August 8 and September 4 through October 4, unless this time period is adjusted pursuant to the procedures in § 648.140.

      [FR Doc. 2010-9729 Filed 4-26-10; 8:45 am]
      BILLING CODE 3510-22-S