[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)]
----------------------------------------------------------------------------------------------------------------
                                           Summer flounder                Scup                Black sea bass
----------------------------------------------------------------------------------------------------------------
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)
----------------------------------------------------------------------------------------------------------------

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
------------------------------------------------------------------------
                  State                     Quota (lb)      Quota (mt)
------------------------------------------------------------------------
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
                                         -------------------------------
    Total...............................      15,246,909        6,915.88
------------------------------------------------------------------------

    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
----------------------------------------------------------------------------------------------------------------
                          Quota period                            Percent share         lb              mt
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------


[[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
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------

    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
--------------------------------------------------------------------------------------------------------------------------------------------------------
 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
          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
--------------------------------------------------------------------------------------------------------------------------------------------------------
* 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
------------------------------------------------------------------------
           2023 Specifications              Million lb          mt
------------------------------------------------------------------------
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

    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

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. 2022-28353 Filed 12-30-22; 8:45 am]
BILLING CODE 3510-22-P