[Federal Register Volume 85, Number 156 (Wednesday, August 12, 2020)]
[Proposed Rules]
[Pages 48660-48664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17609]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 85, No. 156 / Wednesday, August 12, 2020 / 
Proposed Rules  

[[Page 48660]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 200806-0207]
RIN 0648-BJ18


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Amendment 21 
to the Summer Flounder, Scup, and Black Sea Bass Fishery Management 
Plan

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

ACTION: Proposed rule; request for comments.

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

SUMMARY: The Mid-Atlantic Fishery Management Council has submitted to 
NMFS Amendment 21 to the Summer Flounder, Scup, and Black Sea Bass 
Fishery Management Plan. Amendment 21 proposes revisions to the summer 
flounder commercial state quota allocation percentages and the fishery 
management plan goals and objectives. Amendment 21 is intended to 
increase equity in state allocations when annual coastwide commercial 
quotas are at or above historical averages, while recognizing the 
economic reliance coastal communities have on the state allocation 
percentages currently in place.

DATES: Comments must be received by September 11, 2020.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2020-0107, by the following method:
    Electronic submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal.
     Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-
0107,
     Click the ``Comment Now!'' icon, complete the required 
fields, and
     Enter or attach your comments.
    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 Amendment 21, including the Environmental Impact 
Statement, the Regulatory Impact Review, and the Initial Regulatory 
Flexibility Analysis (EIS/RIR/IRFA) prepared in support of this action 
are available from Dr. Christopher M. Moore, Executive Director, Mid-
Atlantic Fishery Management Council, Suite 201, 800 North State Street, 
Dover, DE 19901. The supporting documents are also accessible via the 
internet at: http://www.mafmc.org.

FOR FURTHER INFORMATION CONTACT: Emily Keiley, Fishery Policy Analyst, 
(978) 281-9116.

SUPPLEMENTARY INFORMATION: 

Background

    The Mid-Atlantic Fishery Management Council and the Atlantic States 
Marine Fisheries Commission cooperatively manage summer flounder under 
the provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan (FMP). The joint FMP became effective in 1988, 
establishing measures to manage summer flounder fisheries. Summer 
flounder is an important commercial and recreational species. 
Currently, 60 percent of the total allowable landings limit (TAL) is 
allocated to the commercial fishery (coastwide annual commercial 
quota), with the remaining 40 percent allocated to the recreational 
fishery. Available quotas are fully utilized by both sectors in most if 
not all fishing years.
    The coastwide annual commercial quota is allocated to each of the 
states in the management unit (Maine-North Carolina) on a percentage 
basis. The existing commercial state-by-state allocations were last 
modified in 1993. The original allocations, adopted in 1992 as part of 
Amendment 2 to the FMP (December 4, 1992; 57 FR 57358), were based on 
available landings data from 1980-1989. Shortly thereafter, in 1993, 
the State of Connecticut argued that during the early and mid-1980s, 
the state did not have the authority to collect landings data from 
offshore fishermen, nor did the NMFS provide a port agent to the state 
that would have collected or validated landings information. 
Connecticut contended that their commercial landings during the 
allocation base years were underreported and therefore its quota share 
was too small. Amendment 4 (September 24, 1993; 58 FR 49937) increased 
Connecticut's quota share from 0.95 percent to 2.26 percent based on 
additional landings information provided by the state. The state-by-
state allocations have not been modified since Amendment 4.

               Table 1--Current State-by-State Allocations
------------------------------------------------------------------------
                                                          Current state
                         State                              allocation
                                                            percentage
------------------------------------------------------------------------
ME.....................................................          0.04756
NH.....................................................          0.00046
MA.....................................................          6.82046
RI.....................................................         15.68298
CT.....................................................          2.25708
NY.....................................................          7.64699
NJ.....................................................         16.72499
DE.....................................................          0.01779
MD.....................................................          2.03910
VA.....................................................         21.31676
NC.....................................................         27.44584
                                                        ----------------
  Total................................................              100
------------------------------------------------------------------------

    The current commercial allocation is perceived by many stakeholders 
as outdated, given that it was last modified in 1993 and is based on 
1980-1989 landings data. Some other states and parties assert that the 
initial allocations were based on incomplete or otherwise flawed data.
    Summer flounder distribution, center of biomass, and location of 
fishing effort has changed over time, likely due to a combination of 
stock rebuilding and difficult to quantify but widely accepted climate-
related changes in the Mid-Atlantic Bight and southern New

[[Page 48661]]

England waters. As changing environmental conditions have resulted in 
an apparent shift in the average distribution of summer flounder, there 
have been requests to incorporate this information in setting state 
commercial quota allocations.
    On September 16, 2014 (79 FR 55432), the Council published a notice 
of intent (NOI) to prepare an EIS for Amendment 21 to consider, in 
coordination with the Commission: (1) Performing a comprehensive review 
of all aspects of the FMP related to summer flounder; (2) updating the 
FMP goals and objectives for summer flounder management; and (3) 
modifying management strategies and measures as necessary to achieve 
those goals and objectives. The Council and Commission held scoping 
meetings during September and October of 2014 to solicit comments from 
the public regarding the range of commercial and recreational summer 
flounder management issues that should be considered in the amendment.
    On March 29, 2018 (83 FR 13478), the Council published a 
supplemental NOI announcing that the scope of the amendment would be 
narrowed to include only commercial summer flounder management 
considerations. Due to ongoing revisions to the recreational data by 
the Marine Recreational Information Program, the Council and Commission 
chose to delay development of an amendment addressing recreational 
issues. This included quota allocation between the commercial and 
recreational sectors, as well as recreational management measures and 
strategies. The supplemental NOI identified that the commercial 
fishery-focused amendment would specifically consider revisions to the 
current qualification criteria for Federal moratorium permit holders, 
the current allocation of commercial quota, and the current list of 
frameworkable items in the FMP, and would consider revising the FMP 
goals and objectives for summer flounder.
    On August 17, 2018 (83 FR 41072), the Environmental Protection 
Agency announced the public comment period for the Amendment 21 draft 
environmental impact statement (DEIS). The public comment period 
extended until October 12, 2018. During that time, the Council and 
Commission held public hearings on the DEIS in Old Lyme, Connecticut; 
Washington, North Carolina; Dover, Delaware; Newport News, Virginia; 
Buzzards Bay, Massachusetts; Narragansett, Rhode Island; Toms River, 
New Jersey; Berlin, Maryland; Stony Brook, New York; and via webinar.
    In March 2019, the Council and the Commission's Summer Flounder, 
Scup, and Black Sea Bass Board approved Amendment 21 to the FMP to 
change the commercial quota allocation for summer flounder, as well as 
revise the FMP objectives for summer flounder. The Council and 
Commission also considered, but did not approve, changes to Federal 
permit qualifying criteria, and adding landings flexibility as a 
frameworkable subject in the FMP.
    A Notice of Availability (NOA) for Amendment 21 was published in 
the Federal Register on July 29, 2020 (85 FR 16446). The Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) 
allows us to approve, partially approve, or disapprove measures 
recommended by the Council in an amendment based on whether the 
measures are consistent with the fishery management plan, plan 
amendment, the Magnuson-Stevens Act and its National Standards, and 
other applicable law. As such, we are seeking comments in response to 
the NOA on whether measures in Amendment 21 are consistent with the 
Summer Flounder, Scup and Black Sea Bass FMP, the Magnuson-Stevens Act 
and its National Standards, and other applicable law. The comment 
period on the NOA ends on September 28, 2020. Comments submitted on the 
NOA and/or this proposed rule by that date, will be considered in our 
decision to approve, partially approve, or disapprove Amendment 21. We 
will consider comments received before the end of the comment period 
for this proposed rule (See DATES) in our decision to implement 
measures proposed by the Council.

Proposed State-by-State Allocation Changes

    Amendment 21 would change the state-by-state commercial quota 
allocations when the coastwide quota exceeds 9.55 million lb (4,332 
mt). When the coastwide quota is 9.55 million lb (4,332 mt) or less, 
the quota would be distributed according to the current allocations. In 
years when the coastwide quota exceeds 9.55 million lb (4,332 mt), any 
additional quota, beyond this threshold, would be distributed in equal 
shares to all states except Maine, Delaware, and New Hampshire, which 
would split 1 percent of the additional quota. The Council and Board 
stated that this allocation alternative was selected over other 
alternatives to balance preservation of historical state access and 
infrastructure at recent quota levels, with an intent of providing 
equitability among states when the stock and quota are at high levels.

                                  Table 2--Proposed State-by-State Allocations
----------------------------------------------------------------------------------------------------------------
                                                                                               Allocation of
                                                                        Allocation of         additional quota
                               State                                baseline quota <=9.55    beyond 9.55 mil lb
                                                                     mil lb (4,332 metric   (4,332 metric tons)
                                                                       tons) (percent)           (percent)
----------------------------------------------------------------------------------------------------------------
ME................................................................                0.04756                  0.333
NH................................................................                0.00046                  0.333
MA................................................................                6.82046                 12.375
RI................................................................               15.68298                 12.375
CT................................................................                2.25708                 12.375
NY................................................................                7.64699                 12.375
NJ................................................................               16.72499                 12.375
DE................................................................                0.01779                  0.333
MD................................................................                2.03910                 12.375
VA................................................................               21.31676                 12.375
NC................................................................               27.44584                 12.375
                                                                   ---------------------------------------------
    Total.........................................................                    100                    100
----------------------------------------------------------------------------------------------------------------


[[Page 48662]]


Table 3--Status Quo State-by-State Allocations (in Percentages) and Resulting Quota (in lb) Compared to the Proposed Revised Allocation (in Percentages)
                                     and Resulting Quota (in lb) at the Current, 2020 Quota Level (11.53 Million lb)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Revised
                                                             Status quo state       Status quo     Revised allocation      allocation
                           State                                allocation       distribution of   percentages (11.53   distribution of   Percent change
                                                                percentages      11.53 million lb   million lb quota)   11.53 million lb
                                                                                      quota                                  quota
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME........................................................             0.04756              5,484             0.09663             11,142          103.17
NH........................................................             0.00046                 53             0.05762              6,644        12435.85
MA........................................................             6.82046            786,399             7.77432            896,379           13.99
RI........................................................            15.68298          1,808,248            15.11491          1,742,750           -3.62
CT........................................................             2.25708            260,241             3.99459            460,576           76.98
NY........................................................             7.64699            881,698             8.45891            975,313           10.62
NJ........................................................            16.72499          1,928,391            15.97798          1,842,262           -4.47
DE........................................................             0.01779              2,051             0.07198              8,299          304.63
MD........................................................             2.03910            235,108             3.81404            439,759           87.05
VA........................................................            21.31676          2,457,822            19.78123          2,280,776           -7.20
NC........................................................            27.44584          3,164,505            24.85779          2,866,103           -9.43
                                                           ---------------------------------------------------------------------------------------------
    Total.................................................                 100         11,530,000                 100         11,530,000            0.00
--------------------------------------------------------------------------------------------------------------------------------------------------------


Table 4--Status Quo State-by-State Allocations (in Percentages) and Resulting Quota (in mt) Compared to the Proposed Revised Allocation (in Percentages)
                                         and Resulting Quota (in mt) at the Current, 2020 Quota Level (5,230 mt)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Revised
                                                             Status quo state       Status quo     Revised allocation      allocation
                           State                                allocation       distribution of   percentages (5,230   distribution of   Percent change
                                                                percentages       5,230 mt quota        mt quota)        5,230 mt quota
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME........................................................             0.04756               2.49             0.09663               5.05          103.17
NH........................................................             0.00046               0.02             0.05762               3.01        12435.85
MA........................................................             6.82046             356.70             7.77432             406.59           13.99
RI........................................................            15.68298             820.21            15.11491             790.50           -3.62
CT........................................................             2.25708             118.04             3.99459             208.91           76.98
NY........................................................             7.64699             399.93             8.45891             442.39           10.62
NJ........................................................            16.72499             874.70            15.97798             835.64           -4.47
DE........................................................             0.01779               0.93             0.07198               3.76          304.63
MD........................................................             2.03910             106.64             3.81404             199.47           87.05
VA........................................................            21.31676           1,114.85            19.78123           1,034.54           -7.20
NC........................................................            27.44584           1,435.39            24.85779           1,300.04           -9.43
                                                           ---------------------------------------------------------------------------------------------
    Total.................................................                 100           5,229.92                 100           5,229.92            0.00
--------------------------------------------------------------------------------------------------------------------------------------------------------

Revised Summer Flounder FMP Goals and Objectives

    The original FMP objectives were adopted via Amendment 2 to the 
Summer Flounder FMP in 1993 and have remained unchanged since that 
time. Amendment 21 revises the FMP goals and objectives. While the 
current FMP contains only management objectives, the proposed revisions 
contain three overarching goals linked to more specific objectives. The 
proposed goals include: (1) Ensuring sustainability, of both the summer 
flounder stock and fishery; (2) increasing the effectiveness of 
management measures, through partnerships, enforcement, and data 
collection; and, (3) optimization of the social and economic benefits 
from the summer flounder stock. Additional information on these changes 
can be found in the EIS.

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.
    This proposed rule is not an Executive Order 13771 regulatory 
action because this rule is not significant under Executive Order 
12866.
    An initial regulatory flexibility analysis (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, and also determines ways to minimize 
these impacts. The IRFA incorporates sections of the preamble to this 
rule and analyses contained in Amendment 21 and its accompanying EIS/
RIR/IRFA. A copy of the complete analysis is available from the Council 
(see ADDRESSES). A summary of the IRFA follows.

Description of the Reasons Why Action by the Agency Is Being Considered 
and Statement of the Objectives of, and Legal Basis for, This Proposed 
Rule

    This action proposes management measures for the commercial summer 
flounder fishery. This action is taken under the authority of the MSA 
and regulations at 50 CFR part 648. A complete description of the 
reasons why this action is being considered, and the objectives of and 
legal basis for this action, are contained in the preamble to

[[Page 48663]]

this proposed rule and are not repeated here.

Description and Estimate of the Number of Small Entities to Which This 
Proposed Rule Would Apply

    The entities (i.e., the small and large businesses) that may be 
affected by this action include fishing operations with summer flounder 
moratorium (commercial) permits. The recreational fishery is not 
impacted by this action, and therefore entities with recreational 
party/charter permits are not considered here; nor are private 
recreational anglers which are not considered ``entities'' under the 
RFA. For RFA purposes only, NMFS established a small business size 
standard for businesses, including their affiliates, whose primary 
industry is commercial fishing (50 CFR 200.2). A business primarily 
engaged in commercial fishing is classified as a small business if it 
is independently owned and operated, is not dominant in its field of 
operation (including its affiliates), and has combined annual receipts 
not in excess of $11 million, for all its affiliated operations 
worldwide.
    Vessel ownership data were used to identify all individuals who own 
commercial fishing vessels. Vessels were then grouped according to 
common owners. The resulting groupings were then treated as entities, 
or affiliates, for purposes of identifying small and large businesses 
which may be affected by this action. Based on this grouping, a total 
of 607 affiliates reported revenues from commercial summer flounder 
landings during the 2016-2018 period, with 601 of those business 
affiliates categorized as small business and 6 categorized as large 
business.

Description of the Projected Reporting, Record-Keeping, and Other 
Compliance Requirements of This Proposed Rule

    There are no proposed reporting, recordkeeping, or other compliance 
requirements.

Federal Rules Which May Duplicate, Overlap, or Conflict With This 
Proposed Rule

    The proposed action does not duplicate, overlap, or conflict with 
other Federal rules.

Description of Significant Alternatives to the Proposed Action Which 
Accomplish the Stated Objectives of Applicable Statutes and Which 
Minimize Any Significant Economic Impact on Small Entities

    The proposed action (i.e., the suite of preferred alternatives) 
includes implementation of revised commercial quota allocation system 
for the summer flounder fishery. Specifically, this action would create 
state allocations that vary with overall stock abundance and resulting 
commercial quotas. For all years when the annual commercial quota is at 
or below 9.55 million lb (4,332 mt), the state allocations would remain 
status quo. In years when the annual coastwide quota exceeded this 
trigger, the first 9.55 million lb (4,332 mt) would be distributed 
according to status quo allocations, and the additional quota beyond 
9.55 million lb (4,332 mt) would be distributed by equal shares (with 
the exception of Maine, New Hampshire, and Delaware, which would split 
1 percent of the additional quota).
    Additional non-preferred alternatives were also considered. For the 
purposes of the RFA, only the preferred alternatives and those non-
preferred alternatives which would minimize negative impacts to small 
businesses are required to be considered. Economic impacts would vary 
by state and community under all alternatives, but alternatives 2A 
(status quo) and alternatives 2C (the preferred alternative) are likely 
to have fewer negative impacts overall compared to other alternatives. 
Therefore, the preferred alternative (2C) is compared to the status quo 
(alternative 2A) in the quantitative analysis. Although not required, 
we also provide a brief summary of the relative impacts of the two 
additional non-preferred options (2B and 2D).
    The analysis was conducted assuming full utilization of the 2020 
commercial quota of 11.53 million lb (5,230 mt). Results indicate that 
the proposed action of a quota reallocation threshold of 9.55 million 
lb (4,332 mt) increases fleetwide revenue by $0.4 million relative to 
No Action and ex-vessel price by $0.04 per pound relative to No Action. 
The proposed action is estimated to yield a decrease in fishery-wide 
revenue of $0.15 million as compared to the quota reallocation 
threshold of 8.4 million lb (3,810 mt) (Alternative 2C-1). This slight 
decrease in revenue under the proposed action, relative to the highest 
revenue-generating alternative, is not expected to disproportionately 
impact small entities.
    Additional alternatives, 2B and 2D, were considered but not 
recommended by the Council. Alternatives 2B and 2D had more negative 
impacts on small businesses than the selected alternative. Alternative 
2B considered revisions to the quota allocation based on recent summer 
flounder biomass distribution, alternative 2D, the ``scup model'', 
considered a significant change in summer flounder management by 
creating a winter season that was open to any vessel with a summer 
flounder permit.
    Compared to the other allocation alternatives, the impacts of 
alternative 2D are the most difficult to determine, as this alternative 
is associated with the highest uncertainty regarding impacts on vessel 
participation, fishing effort, landings patterns, and market responses. 
Relative to alternative 2A, alternative 2D is expected to have a higher 
magnitude of positive or negative impacts to states and businesses, due 
to the substantial change in the management system that will benefit 
some and negatively impact others. Shoreside communities would also be 
impacted by alternative 2D. Many states have invested heavily in 
shoreside infrastructure to support their fleets. Under alternative 2D, 
the distribution of landings in the winter would be driven more by 
vessel preference and market factors, which would positively impact 
some shoreside businesses and negatively impact others.
    Alternative 2B would shift quota allocation from the Southern 
region of the management unit (North Carolina through New Jersey) to 
the Northern region (New York through Maine). Compared to alternative 
2C, alternative 2B is more likely to have a higher magnitude of 
positive or negative impacts (depending on the state), as allocation 
changes would be permanently revised from status quo, while under 2C 
there is the potential for status quo allocation. Additionally, option 
2C has a higher likelihood of costs and benefits being shared more 
equally over time as the quota fluctuates above and below the trigger 
point.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: August 6, 2020.
Donna S. Wieting,
Acting 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

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.102, paragraph (c)(1) is revised to read as follows:

[[Page 48664]]

Sec.  648.102  Summer flounder specifications.

* * * * *
    (c) * * *
    (1) Distribution of annual commercial quota. (i) For years when the 
annual commercial quota is at or below 9,550,000 lb (4,332 mt), the 
quota will be distributed to the states, based upon the following 
percentages (state followed by percent share in parenthesis): Maine 
(0.04756); New Hampshire (0.00046); Massachusetts (6.82046); Rhode 
Island (15.68298); Connecticut (2.25708); New York (7.64699); New 
Jersey (16.72499); Delaware (0.01779); Maryland (2.03910); Virginia 
(21.31676); and North Carolina (27.44584).
    (ii) For years when the annual commercial quota is greater than 
9,550,000 lb (4,332 mt), the quota up to 9.55 million lb (4,332 mt) 
will be distributed as outlined in paragraph (c)(1)(i) of this section 
and the additional quota above 9.55 million lb will be distributed 
based upon the following percentages (state followed by percent share 
in parenthesis): Maine (0.333); New Hampshire (0.333); Massachusetts 
(12.375); Rhode Island (12.375); Connecticut (12.375); New York 
(12.375); New Jersey (12.375); Delaware (0.333); Maryland (12.375); 
Virginia (12.375); and North Carolina (12.375).
* * * * *
[FR Doc. 2020-17609 Filed 8-11-20; 8:45 am]
BILLING CODE 3510-22-P