[Federal Register Volume 87, Number 154 (Thursday, August 11, 2022)]
[Proposed Rules]
[Pages 49573-49577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17107]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 220728-0165]
RIN 0648-BL43


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Amendment 22 
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.

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SUMMARY: NMFS proposes regulations to implement Amendment 22 to the 
Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. 
Amendment 22 was developed by the Mid-Atlantic Fishery Management 
Council to revise summer flounder, scup, and black sea bass commercial 
and recreational sector allocations. Amendment 22 is intended to ensure 
that the best available science is used to determine commercial and 
recreational sector allocations.

DATES: Comments must be received by September 12, 2022.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2022-0042, by the following method:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2022-0042 in the Search box. 
Click on the ``Comment'' 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

[[Page 49574]]

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 22, including the Environmental Assessment, the 
Regulatory Impact Review, and the Initial Regulatory Flexibility 
Analysis (EA/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: 
https://www.mafmc.org/s/SFSBSB_com_rec_allocation_EA-final_6-24-22.pdf.

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

SUPPLEMENTARY INFORMATION:

Background

    The Mid-Atlantic Fishery Management Council (Council) and the 
Atlantic States Marine Fisheries Commission (Commission) cooperatively 
manage the summer flounder, scup, and black sea bass fisheries. The 
Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) 
outlines the allocation of quota, for each species, between the 
commercial and recreational fisheries. This joint amendment reevaluates 
and proposes to revise the commercial and recreational sector 
allocations in the Summer Flounder, Scup, and Black Sea Bass FMP. This 
action was initiated in part to address the allocation-related impacts 
of the revised recreational catch and landings data provided by the 
Marine Recreational Information Program (MRIP). Specifically, this 
amendment considers:
    1. Changing the current allocations between the commercial and 
recreational sectors for summer flounder, scup, and black sea bass;
    2. Adding an option to transfer a portion of the allowable landings 
each year between the commercial and recreational sectors, in either 
direction, based on the needs of each sector; and
    3. Adding the option for future additional changes to the 
commercial/recreational allocation and transfer provisions to be 
considered through an FMP addendum/framework action, as opposed to an 
amendment.

Proposed Commercial/Recreational Allocations

    This action proposes to change the commercial and recreational 
allocations for summer flounder, scup, and black sea bass. The current 
commercial and recreational allocations for all three species were 
established in the mid-1990s. The allocations are based on historical 
proportions of landings (for summer flounder and black sea bass) and 
catch (for scup) from each sector. The current commercial/recreational 
allocations, and the years used to determine the allocation percentages 
(base years) are shown in Table 1.

                              Table 1--Current Commercial/Recreational Allocations
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                                                                                    Commercial     Recreational
                Species                   Base years            Data type           allocation      allocation
                                                                                  percentage (%)  percentage (%)
----------------------------------------------------------------------------------------------------------------
Summer Flounder.......................       1980-1989  Commercial and                        60              40
                                                         Recreational Landings.
Scup..................................       1988-1992  Commercial and                        78              22
                                                         Recreational Catch.
Black Sea Bass........................       1983-1992  Commercial and                        49              51
                                                         Recreational Landings.
----------------------------------------------------------------------------------------------------------------

    In July 2018, MRIP released revised time series of catch and 
harvest estimates based on adjustments to its angler intercept 
methodology, which is used to estimate recreational catch rates, as 
well as changes to its effort estimation methodology, namely, a 
transition from a telephone-based effort survey to a mail-based effort 
survey for the private/rental boat and shore-based fishing modes. These 
revisions collectively resulted in higher recreational catch estimates 
compared to previous estimates, affecting the entire time series of 
data going back to 1981. The revised MRIP estimates were incorporated 
into the stock assessments for summer flounder in 2018 and for scup and 
black sea bass in 2019. This impacted the estimated stock biomass and 
resulting catch limits for these species.
    The revised MRIP time series created a mismatch between the data 
that were used to set the allocations and the data currently used in 
management for setting catch limits. Changes to commercial catch data 
have also been made since the allocations were established. The 
allocation changes proposed in this amendment seek to ensure that the 
best available data is used to determine commercial and recreational 
sector allocations.
    Amendment 22 includes a range of allocation alternatives, with 
options that would have maintained the current allocations and a 
variety of options to revise the allocations based on updated data 
using the same or modified ``base years'' (the time periods used to set 
the current allocations). The Council and Board ultimately voted to 
revise the allocations using the original base years updated with new 
data. This approach allows for consideration of fishery characteristics 
in years prior to influence by the commercial/recreational allocations, 
while also using the best scientific information available to 
understand the fisheries in those base years.
    For all three species, these changes result in a shift in 
allocation from the commercial to recreational sector. However, because 
the summer flounder and black sea bass fisheries will be transitioning 
from landings-based to catch-based allocations, the current and revised 
allocations for those species are not directly comparable. The proposed 
commercial and recreational sector allocations are shown in Table 2.

[[Page 49575]]



                              Table 2--Proposed Commercial/Recreational Allocations
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                                                                                    Commercial     Recreational
                Species                   Base years            Data type           allocation      allocation
                                                                                  percentage (%)  percentage (%)
----------------------------------------------------------------------------------------------------------------
Summer Flounder.......................       1980-1989  Commercial and                        55              45
                                                         Recreational Catch.
Scup..................................       1988-1992  Commercial and                        65              35
                                                         Recreational Catch.
Black Sea Bass........................       1983-1992  Commercial and                        45              55
                                                         Recreational Catch.
----------------------------------------------------------------------------------------------------------------

    The Council and Board considered but did not recommend an option to 
``phase in'' the allocation changes over a period of time. A phase-in 
period was deemed unnecessary given the relatively small magnitude of 
allocation changes.

Revised Framework Provisions

    The Council and Board also approved an option to allow future 
changes to commercial/recreational allocations, annual quota transfers 
between sectors, and other measures addressed in the amendment to be 
made through framework actions.
    They also considered, but did not recommend, an option to allow 
transfers of annual quota between the commercial and recreational 
sectors at this time.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA), 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 MSA, 
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 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 22 and its accompanying EA/
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 and 
recreational summer flounder, scup and black sea bass fisheries. 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 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 federal 
moratorium (commercial) permits and/or federal party/charter permits 
for summer flounder, scup, and/or black sea bass. Private recreational 
anglers 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 
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.
    Commercial and recreational for-hire affiliates potentially 
regulated by this action include all those with valid commercial 
fishery permits for summer flounder, scup and back sea bass and any 
for-hire affiliates that reported landing summer flounder, scup or 
black sea bass in any year between 2018-2020, which is the most recent 
complete calendar year data. A total of 1,522 affiliates were 
identified as being potentially regulated by this action, 1,513 (99 
percent) of which were identified as small businesses and 9 (1 percent) 
were identified as large businesses based on their average revenues in 
2018-2020.
    Of the total affiliates potentially regulated by this action, 455 
affiliates reported that the majority of their revenues in 2020 came 
from for-hire fishing. Some of these affiliates may have also 
participated in commercial fishing. All 455 of these for-hire 
affiliates were categorized as small businesses based on their average 
2018-2020 revenues. It is not possible to determine what proportion of 
their revenues came from fishing for an individual species. 
Nevertheless, given the popularity of summer flounder, scup, and black 
sea bass as recreational species, revenues generated from these species 
are likely important for many of these affiliates at certain times of 
the year.

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/recreational quota 
allocation system for the summer flounder, scup, and black sea bass 
fisheries.
    When considering the economic impacts of the alternatives under the 
Regulatory Flexibility Act, consideration should also be given to those 
non-preferred alternatives which would result in higher net benefits or 
lower costs to small entities while still achieving the stated 
objective of the action.

[[Page 49576]]

    For summer flounder and scup, only the no action alternatives 
(alternatives 1a-4 and 1b-1, respectively) had greater positive 
expected impacts for the commercial sector than the preferred 
alternatives; however, those alternatives had greater negative impacts 
for the recreational sector than the preferred alternatives. For black 
sea bass, both the no action alternative (alternative 1c-4) and 
alternative 1c-5 were expected to have greater positive impacts for the 
commercial sector than the preferred alternative. However, as with 
summer flounder and scup, those alternatives had greater negative 
impacts for the recreational sector than the preferred alternative. In 
addition, alternative 1c-5 would have maintained a landings-based 
allocation for black sea bass, and the Council and Board supported 
switching to a catch-based allocation. Catch-based allocations were 
supported because they include both landings and discards, eliminate 
the current discard apportionment process, and hold each sector 
accountable to their own discards.
    All alternatives that had a greater potential for positive impacts 
or a lesser potential for negative impacts to the recreational sector 
than the preferred alternatives had a greater magnitude of negative 
expected impacts for the commercial sector. The no action alternative, 
for all three species, did not meet the stated objectives given the 
notable changes in data that have occurred since these allocations were 
first established, and that leaving the allocations unchanged would not 
be based on the best scientific information available.
    The non-preferred alternatives for phase-in, transfers, and 
frameworks/addenda are not expected to have notably different 
socioeconomic impacts than the preferred alternatives.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: August 4, 2022.
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

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.  648.100, revise paragraph (a)(1) to read as follows:


Sec.  648.100  Summer flounder Annual Catch Limit (ACL).

    (a) * * *
    (1) Sector allocations. The commercial and recreational fishing 
sector ACLs will be established based on the allocations defined in the 
Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan 
(FMP).
* * * * *
0
3. In Sec.  648.110, revise paragraph (a)(1) to read as follows:


Sec.  648.110  Summer flounder framework adjustments to management 
measures

    (a) * * *
    (1) Adjustment process. The MAFMC shall develop and analyze 
appropriate management actions over the span of at least two MAFMC 
meetings. The MAFMC must provide the public with advance notice of the 
availability of the recommendation(s), appropriate justification(s) and 
economic and biological analyses, and the opportunity to comment on the 
proposed adjustment(s) at the first meeting and prior to and at the 
second MAFMC meeting. The MAFMC's recommendations on adjustments or 
additions to management measures must come from one or more of the 
following categories: Adjustments within existing ABC control rule 
levels; adjustments to the existing MAFMC risk policy; introduction of 
new AMs, including sub-ACTs; minimum fish size; maximum fish size; gear 
restrictions; gear requirements or prohibitions; permitting 
restrictions; recreational possession limit; recreational seasons; 
closed areas; commercial seasons; commercial trip limits; commercial 
quota system including commercial quota allocation procedure and 
possible quota set asides to mitigate bycatch; recreational harvest 
limit; specification quota setting process; commercial/recreational 
allocations; transfer provisions between the commercial and 
recreational sectors; FMP Monitoring Committee composition and process; 
description and identification of essential fish habitat (and fishing 
gear management measures that impact EFH); description and 
identification of habitat areas of particular concern; regional gear 
restrictions; regional season restrictions (including option to split 
seasons); restrictions on vessel size (LOA and GRT) or shaft 
horsepower; operator permits; changes to the SBRM, including the CV-
based performance standard, the means by which discard data are 
collected/obtained, fishery stratification, the process for 
prioritizing observer sea-day allocations, reports, and/or industry-
funded observers or observer set aside programs; any other commercial 
or recreational management measures; any other management measures 
currently included in the FMP; and set aside quota for scientific 
research. Issues that require significant departures from previously 
contemplated measures or that are otherwise introducing new concepts 
may require an amendment of the FMP instead of a framework adjustment.
* * * * *
0
4. Sec.  648.120, revise paragraph (a)(1) to read as follows:


Sec.  648.120  Scup Annual Catch Limit (ACL).

    (a) * * *
    (1) Sector allocations. The commercial and recreational fishing 
sector ACLs will be based on the allocations defined in the Summer 
Flounder, Scup, and Black Sea Bass FMP.
* * * * *
0
5. In Sec.  648.130, revise paragraph (a)(1) to read as follows:


Sec.  648.130  Scup framework adjustments to management measures.

    (a) * * *
    (1) Adjustment process. The MAFMC shall develop and analyze 
appropriate management actions over the span of at least two MAFMC 
meetings. The MAFMC must provide the public with advance notice of the 
availability of the recommendation(s), appropriate justification(s) and 
economic and biological analyses, and the opportunity to comment on the 
proposed adjustment(s) at the first meeting and prior to and at the 
second MAFMC meeting. The MAFMC's recommendations on adjustments or 
additions to management measures must come from one or more of the 
following categories: Adjustments within existing ABC control rules; 
adjustments to the existing MAFMC risk policy; introduction of new AMs, 
including sub-ACTs; minimum fish size; maximum fish size; gear 
restrictions; gear restricted areas; gear requirements or prohibitions; 
permitting restrictions; recreational possession limits; recreational 
seasons; closed areas; commercial seasons; commercial trip limits; 
commercial quota system including commercial quota allocation procedure 
and possible quota set asides to mitigate bycatch; recreational harvest 
limits; annual specification quota setting process; commercial/
recreational allocations; transfer provisions between the commercial 
and recreational sectors; FMP Monitoring Committee composition and 
process; description

[[Page 49577]]

and identification of EFH (and fishing gear management measures that 
impact EFH); description and identification of habitat areas of 
particular concern; regional gear restrictions; regional season 
restrictions (including option to split seasons); restrictions on 
vessel size (LOA and GRT) or shaft horsepower; operator permits; 
changes to the SBRM, including the CV-based performance standard, the 
means by which discard data are collected/obtained, fishery 
stratification, the process for prioritizing observer sea-day 
allocations, reports, and/or industry-funded observers or observer set 
aside programs; any other commercial or recreational management 
measures; any other management measures currently included in the FMP; 
and set aside quota for scientific research.
* * * * *
0
6. In Sec.  648.140, revise paragraph (a)(1) to read as follows:


Sec.  648.140  Black sea bass Annual Catch Limit (ACL).

    (a) * * *
    (1) Sector allocations. The commercial and recreational fishing 
sector ACLs will be based on the allocations defined in the Summer 
Flounder, Scup, and Black Sea Bass Fishery Management Plan.
* * * * *
[FR Doc. 2022-17107 Filed 8-10-22; 8:45 am]
BILLING CODE 3510-22-P