[Federal Register Volume 85, Number 241 (Tuesday, December 15, 2020)]
[Rules and Regulations]
[Pages 81152-81154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27562]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.: 201209-0334]
RIN 0648-BK05


Fisheries of the Northeastern United States; Omnibus Framework 
Adjustment To Modify the Mid-Atlantic Fishery Management Council's Risk 
Policy

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

ACTION: Final rule.

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SUMMARY: NMFS approves and implements changes to the Mid-Atlantic 
Fishery Management Council's Risk Policy. This action is intended to 
adjust the Council's risk policy by accepting a higher level of risk 
for stocks at or above biomass targets. These adjustments could lead to 
increases in catch limits for healthy fisheries managed by the Council.

DATES: Effective December 15, 2020.

ADDRESSES: The Mid-Atlantic Fishery Management Council developed an 
environmental assessment (EA) for this action that describes and 
analyzes these measures and other considered alternatives. Copies of 
the Risk Policy Omnibus Framework Adjustment, including the EA and 
information on the economic impacts of this rulemaking, are available 
upon request from Dr. Christopher M. Moore, Executive Director, Mid-
Atlantic Fishery Management Council, Suite 201, 800 North State Street, 
Dover, DE 19901. These documents are also accessible via the internet 
at http://www.mafmc.org.
    Copies of the small entity compliance guide are available from 
Michael Pentony, Regional Administrator, NMFS, Greater Atlantic 
Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 
01930-2298, or

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available on the internet at: http://www.greateratlantic.fisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Shannah Jaburek, Fishery Management 
Specialist, 978-282-8456.

SUPPLEMENTARY INFORMATION:

Background

    The Council took final action on this Risk Policy Omnibus Framework 
Adjustment to modify its risk policy in December 2019 and submitted the 
action to NMFS in early August 2020. NMFS published a proposed rule for 
the Framework on November 12, 2020 (85 FR 72312). In the interest of 
implementing a final rule before January 1, 2021 to facilitate the 
development of 2021 fishing year specifications, the proposed rule 
included a 15-day public comment period that closed on November 26, 
2020.
    NMFS has approved all of the measures in the Framework recommended 
by the Council, as described below. This final rule implements changes 
to the Council's risk policy and removes the typical/atypical species 
designation. The Magnuson-Stevens Fishery Conservation and Management 
Act allows NMFS to approve, partially approve, or disapprove measures 
proposed by the Council based on whether the measures are consistent 
with the FMP, the Magnuson-Stevens Act and its National Standards, and 
other applicable law. Details concerning the development of these 
measures were contained in the preamble of the proposed rule and are 
not repeated here.
    This action adjusts the Council's risk policy by accepting a higher 
level of risk (i.e., the probability of overfishing, known as P*) for 
stocks that are healthy and either at or above biomass targets. For 
stocks not subject to a rebuilding plan that have a ratio of biomass 
(B) to biomass at maximum sustainable yield (BMSY) of 1.0 or 
lower, the maximum P* as informed by the overfishing limit (OFL) 
distribution will decrease linearly from a maximum value of 45 percent 
until the P* becomes zero at a B/BMSY ratio of 0.10. For 
stocks with biomass that exceeds BMSY and the B/
BMSY ratio is greater than 1.0, the P* will increase 
linearly from 45 percent to a maximum of 49 percent when the B/
BMSY ratio is equal to 1.5 or greater. Under the current 
risk policy, the maximum allowed P* is capped at 40 percent for stocks 
with a B/BMSY ratio of 1.0 or higher, with this probability 
decreasing linearly until P* becomes zero at the B/BMSY 
ratio of 0.10. The Council made no adjustments for stocks under a 
rebuilding plan or stocks with no OFL or proxy OFL. The increased 
tolerance of risk could lead to increases in ABC allocations for 
healthy fisheries the Council manages. The Council and its Scientific 
and Statistical Committee used this modified risk policy in 
recommending ABCs for scup and black sea bass for the 2021 fishing year 
that begins on January 1, 2021.
    This action also removes the typical/atypical species designation 
when applied to the current risk policy. This designation was intended 
to provide for less risk to those species whose life histories make 
them more vulnerable to over-exploitation; however, it has rarely been 
used and is currently only applied to ocean quahog. This allows the 
Council to better use improvements in stock assessment and modeling 
approaches that can more appropriately account for and address such 
vulnerability.

Proposed Rule Comments and Responses

    We received seven relevant and two non-relevant comments on the 
proposed rule during the public comment period. Below is a summary of 
the relevant comments and our responses.
    Comment 1: NMFS received two comments in agreement with the action. 
The Virginia Marine Resources Commission noted no objections to the 
changes in the Council's risk policy. A member of the public commented 
in agreement with these adjustments, noting it was a welcomed change 
and enabled better management and sustainability. Specifically, it 
enables better utilization of species that are flourishing while still 
limiting the harvest of those fisheries that cannot sustain increases 
in allocations.
    Response: NMFS agrees.
    Comment 2: One commenter supported removing the typical/atypical 
species designation. The commenter also suggested that NMFS conduct an 
in-depth analysis of the regulatory changes to fully consider all 
impacts, including any increased risk to the environment and fish 
stocks as well as economic impacts. The commenter also noted that, 
under Executive Order (E.O.) 12866, the net benefits of these 
regulatory changes must outweigh the net costs.
    Response: NMFS agrees with removing the species designation. The 
Council's EA provides the analysis suggested by the commenter. In the 
EA, economic impacts are analyzed, along with a comprehensive analysis 
of impacts to the affected environment that includes managed and non-
target species, physical environment, protected species, and effects on 
human communities. The alternatives considered in this action do not 
modify existing commercial quotas or recreational harvest limits for 
Council-managed fisheries and, therefore, will not have any direct 
socioeconomic impacts. However, increases in ABC allocations through 
future actions as a result of this action could result in positive 
socioeconomic impacts. When the proposed action is considered in 
conjunction with all other impacts from past, present, and reasonably 
foreseeable future actions, it is not expected to result in any 
significant impacts, positive or negative; therefore, no significant 
cumulative effects on the human environment are associated with the 
proposed action. Based on these findings, the outcome of the EA 
analysis was a Finding of No Significant Impact of implementing the 
regulatory changes as recommended by the Council. In addition, as 
suggested by the regulatory impact analysis in the EA, this rule was 
determined to be not significant under E.O. 12866.
    Comment 3: One member of the public asked NMFS to clarify what is 
meant by species whose life histories make them more vulnerable to 
over-exploitation.
    Response: Over-exploitation occurs when a species is harvested in 
larger quantities than what is sustainable. Certain species 
characteristics, such as low reproduction rates and long timeframes to 
recruit to harvestable size for the fishery, could make it more 
difficult for the stock to recover to sustainable biomass levels), thus 
making the species more vulnerable to over-exploitation. While this 
rule removes the atypical designation for these species, any future 
rulemakings would still consider these factors when putting measures in 
place.
    Comment 4: Three members of the public opposed the rule due to 
reasons that included overfishing concerns, lack of studies on long-
term impacts to support increasing risk probabilities, concern with 
loosening or eliminating policies meant to protect and conserve natural 
resources, and ocean temperature shifts/changes.
    Response: NMFS appreciates the stated concerns that members of the 
public have with this rule. The changes to the Council's risk policy 
only apply to fisheries that are healthy and are at or above 
sustainable levels (i.e., are not overfished and overfishing is not 
occurring). An example of a stock where increased risk may be applied 
is the black sea bass fishery, which in recent years has been at double 
or close to double the biomass at maximum sustainable yield. In 
addition, NMFS

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continuously conducts biomass surveys and stock assessments to gauge 
the health of managed fisheries. These biomass surveys also collect 
other environmental data, such as ocean temperature, which help NMFS 
evaluate any changes within the stock, for example biomass increases/
decreases and changes in stock structure such as shifting locations. 
The changes to the risk policy implemented in this action are 
administrative in nature and merely allow fishery managers and 
scientists to consider taking increased risks when setting ABC 
allocations. It is also important to note that, while this action 
allows for increased risk from the current policy, the revised policy 
still ensures that there would be less than a 50 percent chance of 
overfishing. Any ABC recommendations will be made through future 
rulemakings, which will include a comprehensive analysis of any 
proposed measures.

Changes From the Proposed Rule

    There are no changes to the measures from the proposed rule.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the FMP, other provisions of the Magnuson-Stevens Act 
and other applicable law.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    This final rule is considered to be an E.O. 13771 deregulatory 
action.
    This final rule does not contain policies with federalism or 
``takings'' implications, as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.
    This action does not contain any collection-of-information 
requirements subject to the Paperwork Reduction Act.
    The Assistant Administrator for Fisheries has determined that, 
because this rule relieves a restriction by allowing the Council to 
increase ABC allocations for the healthy fisheries it manages, it is 
not subject to the 30-day delayed effectiveness provision of the 
Administrative Procedure Act pursuant to 5 U.S.C. 553(d)(1). In 
addition, the need to implement these measures in a timely manner 
constitutes good cause under authority contained in 5 U.S.C. 553(d)(3), 
to waive the 30-day delay in effective date. The Council and its SSC 
used this modified risk policy in recommending ABCs for scup and black 
sea bass for the 2021 fishing year specifications package for summer 
flounder, scup, and black sea bass. The scup, black sea bass, and 
summer flounder fisheries operate on the calendar year. Annual 
publication of the summer flounder quotas prior to the start of the 
fishing year, by December 31, is required by Court Order in North 
Carolina Fisheries Association v. Daley. If this risk policy rule were 
not effective prior to the start of the fishing year, this could delay 
the 2021 summer flounder, scup, and black sea bass specifications, 
requiring interim specifications for these species to go into effect on 
January 1. This scenario would create unnecessary challenges for 
individual states when setting commercial possession and/or trip 
limits, which apportion the catch over the entire calendar year. This 
would cause unnecessary harm to the fisheries and is contrary to the 
public interest.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.

List of Subjects 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: December 10, 2020.
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 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.  648.21, revise paragraphs (b)(1) and (2), and (c)(1) to 
read as follows:


Sec.  648.21   Mid-Atlantic Fishery Management Council risk policy.

* * * * *
    (b) * * * (1) For stocks with a ratio of biomass (B) to biomass at 
MSY (BMSY) of 1.0 or lower, the maximum probability of 
overfishing as informed by the OFL distribution shall decrease linearly 
from a maximum value of 45 percent until the probability of overfishing 
becomes zero at a B/BMSY ratio of 0.10.
    (2) For stocks with biomass that exceeds BMSY and the B/
BMSY ratio is greater than 1.0, the probability of 
overfishing shall increase linearly from a probability of overfishing 
of 45 percent to a maximum probability of overfishing of 49 percent 
when the B/BMSY ratio is equal to 1.5 or greater.
* * * * *
    (c) * * * (1) Unless otherwise allowed in paragraph (c)(2) of this 
section, for instances in which the application of the risk policy 
approaches in paragraph (b) of this section using OFL distribution 
results in a more restrictive ABC recommendation than the calculation 
of ABC derived from the use of FREBUILD at the MAFMC-
specified overfishing risk level as outlined in paragraph (a) of this 
section, the SSC shall recommend to the MAFMC the lower of the ABC 
values.
* * * * *
[FR Doc. 2020-27562 Filed 12-14-20; 8:45 am]
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