[Federal Register Volume 88, Number 86 (Thursday, May 4, 2023)]
[Proposed Rules]
[Pages 28456-28458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09456]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

RIN 0648-BL45


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Amendment 23 
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: Availability of proposed fishery management plan amendment; 
request for comments.

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SUMMARY: The Mid-Atlantic Fishery Management Council has submitted the 
Black Sea Bass Commercial State Allocation Amendment (Amendment 23) to 
the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan 
to NMFS. Amendment 23 proposes to establish commercial state-by-state 
allocations for black sea bass in the Federal fishery management plan 
and regulations, change the trigger for the in-season closure 
accountability measures and change the state-overage payback. Amendment 
23 is intended to address the allocation-related impacts of the 
significant changes in the distribution of black sea bass that have 
occurred since the original allocations were implemented.

DATES: Comments must be received by July 3, 2023.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2023-0041 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-2023-0041 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).
    Copies of Amendment 23, including the Environmental Assessment, the 
Regulatory Impact Review, and the Regulatory Flexibility Analysis (EA/
RIR/RFA) 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/actions/bsb-commercial-allocation.

FOR FURTHER INFORMATION CONTACT: Emily Keiley, Fishery Policy Analyst, 
(978) 281-9116, or [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) requires that each Regional Fishery Management 
Council transmit any amendment it prepares to NMFS for review and 
approval, disapproval, or partial approval. The Magnuson-Stevens Act 
also requires that NMFS, upon receiving an amendment and associated 
regulations deemed necessary by the Council to implement the amendment, 
immediately publish notification in the Federal Register that the 
amendment is available for public review and comment. The Mid-Atlantic 
Council transmitted its final version of

[[Page 28457]]

Amendment 23 to the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan (FMP) to NMFS for review on September 14, 2022. On 
April 13, 2023, the Council submitted Amendment 23 proposed rule 
regulations they deemed to be necessary and appropriate as specified in 
section 303(c) of the Magnuson-Stevens Act.
    Amendment 23 considers changes to the management of the commercial 
black sea bass fishery. Specifically, this amendment proposes to 
establish the commercial black sea bass state-by-state allocations in 
the Federal FMP and regulations, while also making changes to those 
state allocations (previously managed only under the Atlantic States 
Marine Fisheries Commission's FMP), proposes a change to the Federal 
in-season closure regulations for the commercial black sea bass 
fishery, and proposes a change to the provisions that apply when a 
quota overage occurs to incorporate the potential for a state-level 
overage. The intended purpose of the proposed state allocation changes 
is to provide fair and equitable access to the commercial black sea 
bass fishery among states in the management unit, taking into 
consideration the historical dependence of the states on the fishery, 
as well as changes in abundance and stock distribution over time. The 
purpose of the change to the in-season closure trigger is to continue 
to prevent commercial annual catch limit (ACL) overages while 
minimizing potential negative socioeconomic impacts of Federal in-
season closures on states that have not fully harvested their 
allocations.
    Under section 304(a)(3) of the Magnuson-Stevens Act, the Secretary 
of Commerce may disapprove, or partially approve an amendment submitted 
by the Council if it is determined to be inconsistent with a provision 
of the Magnuson-Stevens Act or other applicable law. The sections below 
describe the factors we are considering in making the decision to 
approve, disapprove, or partially approve Amendment 23. The final 
decision on Amendment 23 will be announced to the Mid-Atlantic Council 
within 30 days of the end of the comment period for this notification 
of availability.

Proposed Measures

Council Management of State Allocations

    This amendment considers whether the state allocations should 
remain only in the Commission's Interstate FMP, or if they should be 
included in both the Council and Commission's FMPs. The stated purposes 
are to provide fair and equitable access to the commercial black sea 
bass fishery among states in the management unit, taking into 
consideration the historical dependence of the states on the fishery, 
as well as changes in abundance and stock distribution over time; to 
allow the Council and Commission to determine which management measures 
are most appropriate for joint management in both FMPs; and to help 
prevent commercial ACL overages while minimizing potential negative 
socioeconomic impacts of Federal in-season closures on states that have 
not fully harvested their allocations. Under the Council's preferred 
alternative, the state allocations would be added to the Federal FMP. 
If approved, this change would mean that future changes to the 
allocations must be considered through a joint action of the Council 
and Commission. This change would also shift an administrative burden 
and cost of monitoring state quotas and processing state quota 
transfers to the Regional Office, similar to what is done for Atlantic 
bluefish and summer flounder. We are considering disapproving the 
addition of the state allocations to the Federal FMP, and specifically 
invite public comment on this. A summary of our rationale is provided 
below.
    Adding the state allocations to the Federal FMP would unnecessarily 
increase the administrative burden on, and cost to, state agencies and 
NMFS, and create additional inefficiencies, with no clear direct 
benefit to either the government, the resource, or the fisheries. This 
is contrary to the direction of National Standard 5 to consider 
efficiency in the utilization of fishery resources and National 
Standard 7's direction to minimize costs and avoid unnecessary 
duplication. National Standard 7 guidelines, in particular, state that 
``[m]anagement measures should not impose unnecessary burdens on the 
economy, on individuals, on private or public organizations, or on 
Federal, state, or local governments.'' The Commission has been 
successfully managing the black sea bass state commercial quotas since 
their inception in 2003, while NMFS monitors commercial landings 
coastwide and tracks total landings against the coastwide quotas. Under 
the current Commission process, state-to-state quota transfers are 
processed efficiently without the added administrative burden of the 
Federal process, which, for summer flounder and bluefish, requires 
significantly more time and resources and reduces flexibilities for 
states, including the need to publish state quota transfers in the 
Federal Register before they can be effective. In addition to the 
increased administrative burden, shifting the allocations into the 
Federal FMP encumbers the management process such that both the Council 
and Board must agree on any future changes to the allocations.
    Currently, Commission management of this stock includes members 
from all states and its process will continue to allow equity in 
representation when making future changes to state allocations. 
Management by the Mid-Atlantic Council has representation from the 
states from New York to North Carolina, but does not include membership 
from the northern states, such as Connecticut, Rhode Island, and 
Massachusetts, that also have a strong interest in the black sea bass 
fishery. Given climate change and the northward expansion of the black 
sea bass stock, this inequity in representation on the Council creates 
challenges when making decisions regarding future potential allocation 
changes, by providing the states with seats on the Council a 
disproportionate role in the decision-making process. The absence of 
northern states in the Council's membership has important implications 
for addressing National Standard requirements. For example, while the 
threshold decision of whether to include the state commercial quotas in 
the Federal FMP is not an allocation of fishing privileges, it is not 
clear how this action will provide for National Standard 4's 
requirement of fair and equitable allocations and National Standard 8's 
mandate to provide for the sustained participation of all fishing 
communities along with minimizing adverse economic impacts on such 
communities to the extent practicable. Given that black sea bass has 
already become an important commercial and recreational species for 
fishermen in northern states, it is important that the management body 
with the authority to change state allocations is inclusive of the 
states with an interest in the fishery. Continued northward expansion 
of the stock is expected due to climate change, which is expected to 
exacerbate the already challenging allocation deliberations of the 
Council and Commission. Adding the state allocations to the Federal FMP 
and thus giving the Mid-Atlantic Council jurisdiction over these state 
allocations without northern states as Council members, while the 
Commission does include these states, creates management challenges--
including potentially inadequate consideration of northern states' 
fisheries, or even

[[Page 28458]]

different allocation decisions from each body. This could make the 
management of this stock less adaptable to future changes in 
distribution of both the resource and the fisheries that rely on it, 
implicating concerns regarding variations and contingencies as 
articulated by National Standard 6.

Commercial State Allocation Scheme

    This joint action considered changes to the distribution of 
commercial black sea bass quota among the states. Because the state 
commercial allocations are not currently a part of the Federal FMP, the 
Commission considered and implemented a new allocation formula in its 
FMP. The Council is recommending we adopt the same allocation scheme in 
the Federal FMP.
    This new allocation does not specify fixed-allocation percentages, 
but defines a process for calculating allocations that is partially 
based on biomass distribution. The allocations would be modified 
through the specifications process each time new biomass distribution 
information is available. Specifically, the state allocation 
percentages will be calculated using the following steps:
    (1) Connecticut's baseline allocation was increased from 1 to 3 
percent, and New York's baseline allocation was increased from 7 to 8 
percent;
    (2) Seventy-five percent of the coastwide quota is then allocated 
according to the new baseline allocations (i.e., the original 
allocations implemented by Amendment 13 to the Interstate FMP in 2003 
would be modified to account for the initial increases to Connecticut 
and New York);
    (3) Twenty-five percent of the quota is allocated to three regions 
based on the most recent regional biomass distribution information. The 
three regions are: Maine-New York, New Jersey, and Delaware-North 
Carolina; and,
    (4) The regional allocations are distributed among states within a 
region in proportion to their baseline allocations, except Maine and 
New Hampshire would each receive 1 percent of the northern region 
quota.
    While we are considering disapproving the inclusion of these 
revised allocations in the Federal FMP due to the unnecessary increase 
in administrative burden and inefficiencies, and the lack of northern 
states as members of the Council as described above, we are supportive 
of the revised approach that was developed by the Council and 
Commission as it includes consideration of the distribution of the 
black sea bass stock, and the ability to revise allocations as the 
stock shifts. As noted, the Commission has already implemented this 
process for the development of the 2023 commercial quotas and this 
process will continue to serve as the basis for state-by-state 
allocations regardless of NMFS's final decision with respect to 
promulgating the proposed state allocations in Federal regulations.

Federal Commercial In-Season Closure Trigger

    Currently, the Federal FMP requires a commercial coastwide in-
season closure for all federally permitted vessels and dealers, 
regardless of state, once the coastwide quota is projected to be 
landed. This amendment considers changing this trigger, so that the 
closure would occur once landings are projected to exceed the coastwide 
quota plus an additional buffer of up to 5 percent. The Council and 
Board would agree to the appropriate buffer for the upcoming year 
through the specifications process. The Council's Monitoring Committee 
and the Commission's Technical Committee would provide advice on the 
appropriate buffer based on considerations such as stock status, the 
quota level, and recent fishery trends. We are proposing to approve 
this change to the in-season closure trigger.

Overages and State Payback Requirements

    Under the Commission FMP, overages of state-specific quotas are 
only required to be paid back by a state when the coastwide quota has 
been exceeded. If the state allocations are included in the Federal FMP 
the Council and Board's preferred alternative is to maintain this 
payback provision. In years when the annual landings do not exceed the 
coastwide quota, no state-level or coastwide paybacks would be 
required. If the annual coastwide quota is exceeded, states with quota 
overages will be required to pay back those overages in the following 
year. All black sea bass landed for sale in a state shall be applied 
against that state's annual commercial quota, regardless of where the 
black sea bass were harvested. Any landings in excess of the commercial 
quota in any state, inclusive of any state-to-state transfers, will be 
deducted from that state's annual quota for the following year in the 
final rule that establishes the annual state-by-state quotas. The 
overage deduction will be based on landings for the current year 
through October 31, and on landings for the previous calendar year that 
were not included when the overage deduction was made in the final rule 
that established the annual quota for the current year. Should NMFS 
disapprove establishing the state-by-state allocation in Federal 
regulations, as explained above, this provision would also be 
disapproved as moot in the Federal FMP, though it would continue to 
apply through the Commission process.

Public Comment Instructions

    The Magnuson-Stevens Fishery Conservation and Management Act 
authorizes the Secretary of Commerce to approve, partially approve, or 
disapprove measures recommended by the Council in an amendment based on 
whether the measures are consistent with the fishery management plan, 
plan amendment, the Magnuson-Stevens Act and its National Standards, 
and other applicable law. As such, we are seeking comment on whether 
measures in Amendment 23 are consistent with the Summer Flounder, Scup, 
and Black Sea Bass FMP, the Magnuson-Stevens Act and its National 
Standards, and other applicable law. Public comments on this amendment 
and its incorporated documents may be submitted through the end of the 
comment period stated in this notification of availability.
    A proposed rule to implement the amendment, including draft 
regulatory text, will also be published in the Federal Register for 
public comment. Public comments on the proposed rule received before 
the end of the comment period provided in this notification of 
availability will be considered in the approval/disapproval decision on 
the amendment. All comments received by July 3, 2023, whether 
specifically directed to Amendment 23 or the proposed rule for this 
amendment, will be considered in the approval/disapproval decision on 
the Commercial State Allocation Amendment. Comments received after that 
date will not be considered in the decision to approve or disapprove 
the amendment. To be considered, comments must be received by close of 
business on the last day of the comment period.

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

    Dated: April 28, 2023.
Jennifer M. Wallace,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 2023-09456 Filed 5-3-23; 8:45 am]
BILLING CODE 3510-22-P