[Federal Register Volume 88, Number 1 (Tuesday, January 3, 2023)]
[Rules and Regulations]
[Pages 11-15]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28353]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 221223-0282]
RIN 0648-BL83
Fisheries of the Northeastern United States; Final 2023 Summer
Flounder, Scup, and Black Sea Bass Specifications
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS announces 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. This action is intended to inform the public of
the specifications for the start of the 2023 fishing year for summer
flounder, scup, and black sea bass. This rule also implements a change
to the regulations to facilitate states' participation in a Wave 1
(February) recreational black sea bass fishery.
DATES: This rule is effective January 1, 2023.
ADDRESSES: 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. A copy of the SIR is available
online at https://www.mafmc.org/supporting-documents or 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, [email protected], (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
[[Page 12]]
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. The
specifications here reflect the recently revised commercial and
recreational allocations, which were approved by the Council and Board
in December 2021. On November 17, 2022, we published a final rule (87
FR 68925) implementing the revised allocations. This action sets the
ABCs, as well as the recreational and commercial ACLs, ACTs, commercial
quotas, and RHLs 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.
Final 2022-2023 Specifications
Final specifications for summer flounder, scup, and black sea bass
are outlined in Table 1.
Table 1--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 18.21 lb (8,260 mt) 19.29 lb (8,750 mt) 7.50 lb (3,402 mt)
Catch Target (ACT)..................
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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Summer Flounder Specifications
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.
The final state summer flounder commercial quotas take into account
any overages that occurred during the 2022 or current fishing year,
through October 31, as described at 50 CFR 648.103(b)(2). The final
2023 state-by-state summer flounder commercial quotas are provided in
Table 2.
Table 2--Final 2023 Summer Flounder State-by-State Commercial Quotas
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State Quota (lb) Quota (mt)
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ME...................................... 23,598 10.70
NH...................................... 19,100 8.66
MA...................................... 1,358,834 616.36
RI...................................... 2,205,205 1,000.26
CT...................................... 923,031 418.68
NY...................................... 1,437,768 652.16
NJ...................................... 2,304,717 1,045.40
DE...................................... 652 0.30
MD...................................... 902,214 409.24
VA...................................... 2,743,231 1,244.31
NC...................................... 3,328,558 1,509.81
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Total............................... 15,246,909 6,915.88
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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. Changes to 2023
recreational management measures (bag limits, size limits, and seasons)
are not considered in this action. Recreational management measures for
2023 will be decided on and finalized later this year through a
separate rulemaking.
Scup Specifications
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
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Total...................................................... 100 14,010,000 6,355
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[[Page 13]]
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
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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 to initial Winter II Final Winter II possession limit
------------------------------------------------------------------------------ possession limit after rollover from Winter I to
-------------------------------------- Winter II
lb kg lb kg ------------------------------------
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-* 907,185-1,133,981 6,000 2,722 18,000 8,165
2,500,000
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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 illustration.
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.
Black Sea Bass Specifications
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, recommended using an average of the two
approaches (2.59 million lb (1,175 mt)). The first method sets
projected 2023 recreational dead discards to the most recent 3-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 settled on an average
of these two approaches. We solicited comments on the merits of and the
rationale for the average approach in the proposed rule (87 FR 74591),
but did not receive any comments related to the methods for calculating
dead recreational dead discards for black sea bass. Therefore, we are
approving the discard approach and specifications, as recommended by
the Council and Board. The 2023 black sea bass specifications are
outlined in Table 6.
[[Page 14]]
Table 6--2023 Black Sea Bass Specifications
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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
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Black Sea Bass February Wave 1 Fishery
We are modifying 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. 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 the introduction of conservation equivalency to
the fishery in 2022.
Comments and Responses
We received two relevant comments on the proposed specifications.
One comment was not relevant to this action or applicable to the
proposed measures, and is not discussed further.
The first relevant comment was in support of the summer flounder
quotas. They also stated that black sea bass specifications should
increase due to the expanded population of the species. We are
implementing the summer flounder, scup and black sea bass
specifications as proposed. These catch limits are based on the best
available science. The results of the 2021 management track assessments
for summer flounder, scup, and black sea bass were used in conjunction
with the Mid-Atlantic Council's risk policy to set the appropriate
levels of removal for each stock based on the recommendations of its
Scientific and Statistical Committee.
The second relevant comment was submitted by the State of New York
and the New York State Department of Environmental Conservation
(hereinafter referenced as ``New York''). New York's comment comprises
a cover letter and seven attachments. The attachments were the comment
letters and supporting documents that New York previously submitted in
response to the proposed rule for the 2020-2021 Summer Flounder, Scup,
Black Sea Bass, and Bluefish Specifications (84 FR 36046, July 26,
2019), the proposed rule for Amendment 21 to the FMP (85 FR 48660,
August 12, 2020), and the proposed rule for 2022-2023 Summer Flounder,
Scup, and Black Sea Bass specifications (86 FR 67014, November 24,
2021). Similar to arguments made in ongoing litigation, New York
contends that the revised allocations and resulting quotas are not in
accordance with Magnuson-Stevens Act's National Standards 2, 4, 5, and
7. NMFS' responses to New York's previously submitted comments can be
found in the final rules for those two actions (84 FR 54041, October 9,
2019, and 85 FR 80661, December 14, 2020) and are not repeated here.
The state commercial summer flounder allocation formula is established
in the regulations at 50 CFR 648.102(c), and as such must be followed
in setting the quotas in this specifications action. Deviating from
this formula would require a rulemaking to modify the current
regulations, which is beyond the scope of this action.
Changes From the Proposed Rule
As described in the proposed rule, the summer flounder
specifications in this final rule incorporate overage information to
calculate the final state quotas that was not available previously. To
calculate overages, complete landings data through October 31, 2022, is
needed. This data was not yet available prior to the preparation of the
proposed rule. Incorporating this overage information is required and
formulaic.
Classification
Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined that this final rule is
consistent with the Summer Flounder, Scup, and Black Sea Bass FMP,
other provisions of the Magnuson-Stevens Act, and other applicable law.
The Assistant Administrator for Fisheries finds that the need to
implement these measures in a timely manner constitutes good cause,
under the authority contained in 5 U.S.C. 553(d)(3), to waive the 30-
day delay in effective date of this action. This action implements 2023
specifications for the summer flounder, scup, and black sea bass
fisheries. Due to a Court order, these specifications should be
effective by the start of the fishing year on January 1, 2023.
This rule is being issued at the earliest possible date.
Preparation of the final rule is also dependent on the analysis of
commercial summer flounder landings for the prior fishing year (2021)
and the current fishing year through October 31, 2022, to determine
whether any overages have occurred and adjustments are needed to the
final state quotas. This process is codified in the summer flounder
regulations and, therefore, cannot be performed earlier because
complete data is not available until, at the earliest, October 31.
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.
This final 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 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.
This final rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Authority: 16 U.S.C. 1801 et seq.
[[Page 15]]
Dated: December 23, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 50 CFR part
648 as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
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1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
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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.
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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.
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[FR Doc. 2022-28353 Filed 12-30-22; 8:45 am]
BILLING CODE 3510-22-P