[Federal Register Volume 87, Number 233 (Tuesday, December 6, 2022)]
[Proposed Rules]
[Pages 74591-74594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26438]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 221129-0253]
RIN 0648-BL83


Fisheries of the Northeastern United States; 2023 Summer 
Flounder, Scup, and Black Sea Bass Specifications

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 2023 specifications for the summer flounder, 
scup, and black sea fisheries. The implementing regulations for the 
Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan 
require us to publish specifications for the upcoming fishing year for 
each of these species and to provide an opportunity for public comment. 
The proposed specifications are intended to establish allowable harvest 
levels for these species that will prevent overfishing, consistent with 
the most recent scientific information. This rule also proposes to make 
a change to the regulations to facilitate states' participation in a 
Wave 1 (January-February) recreational black sea bass fishery.

DATES: Comments must be received on or before December 21, 2022.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2022-0112, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2022-0112 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 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).
    A Supplemental Information Report (SIR) was prepared for the 2023 
summer flounder, scup, and black sea bass specifications and a 
Categorical Exclusion (CE) was prepared for the administrative change 
for the Wave 1 black sea bass fishery. Copies of the SIR and CE 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.

FOR FURTHER INFORMATION CONTACT: Laura Hansen, Fishery Management 
Specialist, (978) 281-9225.

SUPPLEMENTARY INFORMATION:

General Background

    The Mid-Atlantic Fishery Management Council and the Atlantic States 
Marine Fisheries 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 Council's 
process for establishing specifications. The FMP requires NMFS to set 
an acceptable biological catch (ABC), annual catch limit (ACL), annual 
catch targets (ACT), commercial quotas, recreational harvest limits 
(RHL), and other management measures, for 1 to 3 years at a time. In 
December 2021, the Council and Board adopted revised quota allocations 
for these three species to the commercial and recreational sectors of 
the fisheries as part of the Commercial-Recreational Allocation 
Amendment (Amendment 22). NMFS approved Amendment 22 on November 7, 
2022. This action would set the ABC, as well as the recreational and 
commercial ACL, ACT, commercial quotas, and RHL for all three species, 
for 2023, consistent with the recommendations made by the Commission's 
Summer Flounder, Scup, and Black Sea Bass Board and Council at their 
joint August 2022 meeting. This rule also proposes to make a change to 
the regulations to facilitate states' participation in a Wave 1 
recreational black sea bass fishery.

Proposed 2023 Specifications

    Proposed specifications for summer flounder, scup, and black sea 
bass are outlined in Table 1.

                                     Table 1--Proposed 2023 Summer Flounder, Scup, and Black Sea Bass Specifications
                                                              (Million lb/metric tons (mt))
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                                                                       Summer flounder                    Scup                     Black sea bass
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Overfishing Limit (OFL).......................................          34.98 lb (15,867 mt)          30.09 lb (13,649 mt)           17.01 lb (7,716 mt)
Acceptable Biological Catch (ABC).............................          33.12 lb (15,023 mt)          29.67 lb (13,458 mt)           16.66 lb (7,557 mt)
Commercial ACL = Commercial Annual Catch Target (ACT).........           18.21 lb (8,260 mt)           19.29 lb (8,750 mt)            7.50 lb (3,402 mt)
Commercial Quota..............................................           15.27 lb (6,926 mt)           14.01 lb (6,355 mt)            4.80 lb (2,177 mt)
Recreational ACL = Recreational ACT...........................           14.90 lb (6,759 mt)           10.39 lb (4,713 mt)            9.16 lb (4,155 mt)
Recreational Harvest Limit....................................           10.62 lb (4,817 mt)            9.27 lb (4,205 mt)            6.57 lb (2,980 mt)
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[[Page 74592]]

Summer Flounder

    The Council and Board approved a revised summer flounder commercial 
quota of 15.27 million lb (6,926 mt) and a revised RHL of 10.62 million 
lb (4,817 mt) for 2023. These specifications reflect the summer 
flounder allocations resulting from Amendment 22, which allocates 55 
percent of the ABC to the commercial sector and 45 percent to the 
recreational sector beginning in 2023.
    This action also sets the initial and recently modified summer 
flounder state-by-state quotas. NMFS will announce any adjustments 
needed to account for any previous overages in the final rule, prior to 
the start of the 2023 fishing year.

       Table 2--Initial 2023 Summer Flounder State-by-State Quotas
------------------------------------------------------------------------
                                                  Initial      Initial
                     State                       quota (lb)   quota (mt)
------------------------------------------------------------------------
ME............................................       23,598           11
NH............................................       19,100            9
MA............................................    1,358,834          616
RI............................................    2,205,205        1,000
CT............................................      923,031          419
NY............................................    1,437,768          652
NJ............................................    2,304,717        1,045
DE............................................       20,755            9
MD............................................      902,214          409
VA............................................    2,743,231        1,244
NC............................................    3,328,558        1,510
                                               -------------------------
  Total.......................................   1,5267,012        6,925
------------------------------------------------------------------------

    This action makes no changes to the current commercial management 
measures, including the minimum fish size (14-inch (36-cm) total 
length), gear requirements, and possession limits. Recreational 
management measures for 2023 will be decided on and finalized later 
this year through a separate rulemaking.

Scup

    The Council and Board approved a revised scup commercial quota of 
14.01 million lb (6,355 mt) and a revised RHL of 9.27 million lb (4,205 
mt) for 2023 (Table 1). These revisions reflect the scup allocations 
resulting from Amendment 22, which allocates 65 percent of the ABC to 
the commercial sector and 35 percent to the recreational sector 
beginning in 2023.
    The commercial scup quota is divided into three commercial fishery 
quota periods, as outlined in Table 3.

                       Table 3--Commercial Scup Quota Allocations for 2023 by Quota Period
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                          Quota period                             Percent share        lb              mt
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Winter I........................................................           45.11       6,319,911           2,867
Summer..........................................................           38.95       5,456,895           2,475
Winter II.......................................................           15.94       2,233,194           1,013
                                                                 -----------------------------------------------
    Total.......................................................             100      14,010,000           6,355
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    The current quota period possession limits are not changed by this 
action, and are outlined in Table 4.

                           Table 4--Commercial Scup Possession Limits by Quota Period
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                                                                      Federal possession limits (per trip)
             Quota period                   Percent share      -------------------------------------------------
                                                                           lb                       kg
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Winter I.............................  45.11..................  50,000.................  22,680
Summer...............................  38.95..................  N/A....................  N/A
Winter II............................  15.94..................  12,000.................  5,443
                                      --------------------------------------------------------------------------
  Total..............................  100.0..................  N/A....................  N/A
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    The Winter I possession limit will drop to 1,000 lb (454 kg) when 
80 percent of that period's allocation is landed. If the Winter I quota 
is not fully harvested, the remaining quota is transferred to Winter 
II. The Winter II possession limit may be adjusted (in association with 
a transfer of unused Winter I quota to the Winter II period) via notice 
in the Federal Register. The regulations at 50 CFR 648.122(d) specify 
that the Winter II possession limit increases consistent with the 
increase in the quota, as described in Table 5.

          Table 5--Potential Increase in Winter II Possession Limits Based on the Amount of Unused Scup Rolled Over From Winter I to Winter II
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              Initial winter II possession limit                       Rollover from winter I to winter II            Increase in       Final winter II
-----------------------------------------------------------------------------------------------------------------  initial winter II   possession limit
                                                                                                                   possession limit     after rollover
                                                                                                                 --------------------  from  winter I to
                         lb                              kg                lb                       kg                                     winter II
                                                                                                                     lb        kg    -------------------
                                                                                                                                         lb        kg
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12,000..............................................     5,443                0-499,999                0-226,796         0         0    12,000     5,443
12,000..............................................     5,443          500,000-999,999          226,796-453,592     1,500       680    13,500     6,123
12,000..............................................     5,443      1,000,000-1,499,999          453,592-680,388     3,000     1,361    15,000     6,804
12,000..............................................     5,443      1,500,000-1,999,999          680,389-907,184     4,500     2,041    16,500     7,484
12,000..............................................     5,443     2,000,000-2,500,000*        907,185-1,133,981     6,000     2,722    18,000     8,165
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* This process of increasing the possession limit in 1,500 lb (680 kg) increments would continue past 2,500,000 lb (1,122,981 kg), but we end here for
  the purpose of this example.

    This action proposes no changes to the 2023 commercial management 
measures for scup, including the minimum fish size (9-inch (22.9-cm) 
total length), gear requirements, and quota period possession limits. 
As with summer flounder and black sea bass, potential changes to the 
recreational measures (bag limits, size limits, and seasons) for 2023 
will be considered later this year.

[[Page 74593]]

Black Sea Bass

    The Council and Board approved a revised black sea bass commercial 
quota of 4.80 million lb (2,177 mt) and a revised RHL of 6.57 million 
lb (2,980 mt) for 2023. As with the other species, these specifications 
reflect the black sea bass allocations resulting from Amendment 22, 
which allocates 45 percent of the ABC to the commercial sector and 55 
percent to the recreational sector beginning in 2023. The revised RHL 
also incorporates a change in the recreational discards projection 
method. The Council and Board considered input from the Monitoring 
Committee on two potential methods for projecting recreational dead 
discards and, ultimately, agreed to use an average of the two 
approaches (2.59 million lb (1,175 mt)). The first method would set 
projected 2023 recreational dead discards to the most recent three-year 
average (i.e., 3.04 million lb (1,379 mt)). The second method is the 
same used to project recreational discards for 2021 and 2022 and this 
method relies on a proportional average of 2.14 million lb (989 mt). 
The first method does not rely on an assumption that catch will be 
equal to the ACL and results in a higher estimate than the second 
method. The Council and Board agreed that it is very challenging to 
predict future dead discards, especially given that recent dead 
discards are not currently available by weight, but by numbers of fish. 
To generate discard estimates, an ad hoc approach was used that applies 
the mean weight of a discarded fish from 2019 to the number of dead 
discards. The 2020 and 2021 estimated discards were 3,476,690 lb (1,577 
mt) and 4,195,397 lb (1,903 mt) respectively. The Council and Board 
also agreed that discards in 2023 could fall between the estimates 
generated by the two approaches; therefore, they decided to use an 
average of these two approaches. While the average approach appears 
reasonable, given the uncertainty in estimating discards and because 
this average approach is different than previously used or considered, 
we are specifically seeking comment on the merits of and the rationale 
for the average approach. The proposed 2023 black sea bass 
specifications are outlined in Table 6.

             Table 6--Proposed Black Sea Bass Specifications
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      Proposed 2023 specifications          million lb          mt
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OFL.....................................           17.01           7,716
ABC.....................................           16.66           7,557
Commercial ACL=ACT......................            7.50           3,401
Projected commercial dead discards......            2.70           1,224
Commercial quota........................            4.80           2,177
Recreational ACL=ACT....................            9.16           4,156
Projected recreational dead discards....            2.59           1,175
RHL.....................................            6.57           2,981
------------------------------------------------------------------------

Black Sea Bass February Wave 1 Fishery

    The Council and Board also agreed to modify the process for the 
optional black sea bass February recreational opening to specify that 
vessels landing black sea bass in a state with an approved Wave 1 
recreational fishery are subject to the state regulations during that 
Wave 1 fishery. Under the current process, states participating in the 
optional February opening are required to match the Federal waters 
measures. The Council and Board made this change to address challenges 
with the process used to waive Federal waters recreational black sea 
bass measures starting with 2022.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), the NMFS 
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.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    The Mid-Atlantic Fishery Management Council conducted an evaluation 
of the potential socioeconomic impacts of the proposed measures in 
conjunction with a SIR. The proposed action would set the 2023 catch 
and landings limits for summer flounder, scup, and black sea bass based 
on the recommendations of the SSC, the Council, and Board.
    Vessel ownership data \1\ 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 that 
may be affected by this action.
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    \1\ Affiliate data for 2019-2021 were provided by the NMFS NEFSC 
Social Science Branch. This is the latest affiliate data set 
available for analysis.
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    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 2019-2021. A total of 1,072 
affiliates were identified as being potentially regulated by this 
action, 1,066 (99 percent) of which were identified as small businesses 
and 6 (1 percent) of which were identified as large businesses, based 
on their average revenues in 2019-2021.
    Of the 1,072 potentially regulated affiliates, 302 reported that 
the majority of their revenues in 2021 came from for-hire fishing. Some 
of these affiliates may have also participated in commercial fishing. 
All 302 of the for-hire affiliates were categorized as small businesses 
based on their average 2019-2021 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.
    For-hire revenues are impacted by a variety of factors, including 
regulations and demand for for-hire trips for summer flounder, scup, 
black sea bass, and other potential target species; weather; the 
economy; and other factors. Recreational measures to achieve future

[[Page 74594]]

RHLs are not yet known, as they are generally considered late in the 
year for the upcoming year.
    It is difficult to predict how recreational effort and harvest may 
change in 2023 due to the pending implementation of the Recreational 
Harvest Control Rule Framework/Addenda, which utilizes a new method to 
set recreational measures, called the Percent Change Approach. Under 
the Percent Change Approach, the RHL will factor into the calculation 
of how measures may need to change, but is only one piece of a new, 
multi-step process. Measures will not be tied as closely to the RHL as 
were previously required. Depending on the appropriate percent change 
in harvest determined by this process later in 2022, recreational 
measures in 2023 could be unchanged, restricted, or further liberalized 
from 2022 measures. If restrictions are implemented, given the 
popularity of these species in this region, this could result in a 
decrease in for-hire trips, decreased for-hire revenues, and overall 
slight to moderate negative impacts to recreational for-hire 
businesses, depending on the scale of the restrictions. If measures are 
liberalized, this could result in an increase in for-hire trips, 
increased for-hire revenues, and moderate positive impacts to 
recreational for-hire businesses. These impacts would be greater in 
magnitude for the for-hire businesses that depend more heavily on 
summer flounder, scup or black sea bass. However, as previously stated, 
it is not possible to determine the relative importance of these 
species compared to other species for the potentially regulated for-
hire affiliates. The administrative change to facilitate the Wave 1 
recreational black sea bass fishery will provide participating states 
greater flexibility in developing measures to fit the unique needs of 
their fisheries, rather than the one-size-fits all approach under the 
current process. This is expected to have slight positive economic 
impacts in states that participate in this opening. It is not expected 
to impact states that do not participate in this opening.
    This action is not expected to adversely impact revenues for 
commercial and recreational vessels that fish for summer flounder, 
scup, and black sea bass. Because this rule will not have a significant 
economic impact on a substantial number of small entities, an initial 
regulatory flexibility analysis is not required and none has been 
prepared.
    This proposed rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

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

    Dated: November 30, 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.  648.145, revise paragraph (a) to read as follows:


Sec.  648.145   Black sea bass possession limit.

    (a) During the recreational fishing season specified at Sec.  
648.146, no person shall possess more than 5 black sea bass in, or 
harvested from, the EEZ per trip unless that person is the owner or 
operator of a fishing vessel issued a black sea bass moratorium permit, 
or is issued a black sea bass dealer permit, unless otherwise specified 
in the conservation equivalent measures described in Sec.  648.151. 
Vessels landing black sea bass in a state with an approved Wave 1 
recreational fishery are subject to the state regulations regarding 
possession limit during that Wave 1 fishery. Persons aboard a 
commercial vessel that is not eligible for a black sea bass moratorium 
permit may not retain more than 5 black sea bass during the 
recreational fishing season specified at Sec.  648.146. The owner, 
operator, and crew of a charter or party boat issued a black sea bass 
moratorium permit are subject to the possession limit when carrying 
passengers for hire or when carrying more than five crew members for a 
party boat, or more than three crew members for a charter boat. This 
possession limit may be adjusted pursuant to the procedures in Sec.  
648.142. However, possession of black sea bass harvested from state 
waters above this possession limit is allowed for state-only permitted 
vessels when transiting Federal waters within the Block Island Sound 
Transit Area provided they follow the provisions at Sec.  648.150 and 
abide by state regulations.
* * * * *
0
3. Revise Sec.  648.146 to read as follows:


Sec.  648.146   Black sea bass recreational fishing season.

    Vessels that are not eligible for a black sea bass moratorium 
permit under Sec.  648.4(a)(7), and fishermen subject to the possession 
limit specified in Sec.  648.145(a), may only possess black sea bass 
from May 15 through October 8, unless otherwise specified in the 
conservation equivalent measures described in Sec.  648.151 or unless 
this time period is adjusted pursuant to the procedures in Sec.  
648.142. However, possession of black sea bass harvested from state 
waters outside of this season is allowed for state-only permitted 
vessels when transiting Federal waters within the Block Island Sound 
Transit Area provided they follow the provisions at Sec.  648.151 and 
abide by state regulations. Vessels landing black sea bass in a state 
with an approved Wave 1 recreational fishery are subject to the state 
regulations regarding fishing season during that Wave 1 fishery.
0
4. In Sec.  648.147, revise paragraph (b) to read as follows:


Sec.  648.147   Black sea bass size requirements.

* * * * *
    (b) Party/Charter permitted vessels and recreational fishery 
participants. The minimum fish size for black sea bass is 14 inches 
(35.56 cm) total length for all vessels that do not qualify for a black 
sea bass moratorium permit, and for party boats holding a black sea 
bass moratorium permit, if fishing with passengers for hire or carrying 
more than five crew members, and for charter boats holding a black sea 
bass moratorium permit, if fishing with more than three crew members, 
unless otherwise specified in the conservation equivalent measures as 
described in Sec.  648.151. However, possession of smaller black sea 
bass harvested from state waters is allowed for state-only permitted 
vessels when transiting Federal waters within the Block Island Sound 
Transit Area provided they follow the provisions at Sec.  648.151 and 
abide by state regulations. Vessels landing black sea bass in a state 
with an approved Wave 1 recreational fishery are subject to the state 
regulations regarding size requirements during that Wave 1 fishery.
* * * * *
[FR Doc. 2022-26438 Filed 12-5-22; 8:45 am]
BILLING CODE 3510-22-P