[Federal Register Volume 88, Number 93 (Monday, May 15, 2023)]
[Proposed Rules]
[Pages 30938-30942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10112]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 230508-0125]
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: Proposed rule; 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 
(FMP). Amendment 23 proposes to establish commercial state-by-state 
black sea bass allocations in the Federal fishery management plan and 
regulations, to 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 June 14, 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 personally identifying 
information (e.g., name, address, etc.), confidential business

[[Page 30939]]

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, [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The Mid-Atlantic Fishery Management Council and the Atlantic States 
Marine Fisheries Commission cooperatively manage the black sea bass 
fishery. 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.
    The Council and Commission's Black Sea Bass Board initially 
approved their respective amendment and addendum during a joint meeting 
on February 1, 2021. However, in response to a remand from the 
Commission's Policy Board, the two management bodies revisited their 
previous recommendations and voted to revise the commercial state quota 
allocations. This action considers the proposed changes to the Federal 
FMP. The Commission's Addendum XXXIII measures are final and, while the 
state allocations are not currently in the Federal FMP, they became 
effective and were implemented by the Commission and the states on 
January 1, 2022. The proposed regulations for this proposed rule were 
deemed by the Mid-Atlantic Council to be consistent with its intent for 
Amendment 23; however, under section 304(a)(3) of the (Magnuson-Stevens 
Fishery Conservation and Management Act) 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 
regulations proposed herein would be necessary if the Secretary 
approves Amendment 23 in full. If Amendment 23 is disapproved, in whole 
or in part, the relevant proposed regulations would no longer be 
necessary. For a full description of the agency's considerations for 
approving, disapproving, or partially approving Amendment 23, and to 
provide comment on that decision, please refer to the Notice of 
Availability published in the Federal Register on May 4, 2023 (88 FR 
28456).

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's and the 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 and Board'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 the 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 specifically considering 
disapproving the addition of the state allocations to the Federal FMP. 
A summary of our rationale is provided in the Notice of Availability 
for this action published in the Federal Register on May 4, 2023 (88 FR 
28456).

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, and add it to the Federal FMP.
    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.

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.

[[Page 30940]]

    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 
as 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.

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.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA), the Assistant Administrator has 
determined that this proposed rule is consistent with the Summer 
Flounder, Scup, and Black Sea Bass FMP, other provisions of the MSA, 
and other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The Council conducted an evaluation of the potential 
socioeconomic impacts of the proposed measures (see ADDRESSES).
    Entities affected by this action include fishing operations with 
federal moratorium (commercial) black sea bass permits. Fishermen who 
are only permitted to operate in state waters are not considered 
``entities'' under the Regulatory Flexibility Act (RFA) and thus 
economic impacts on these fishermen are not discussed here.
    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 
which may be regulated by this action. A total of 421 affiliates were 
identified as being potentially impacted by this action because they 
have a federal black sea bass moratorium permit.
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    \1\ Affiliate data for 2019-2021 were provided by the NMFS 
Northeast Fisheries Science Center's Social Science Branch.
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    For Regulatory Flexibility Act purposes only, NMFS established a 
small business size standard for businesses, including their 
affiliates, whose primary industry is fishing (50 CFR 200.2). A 
business primarily engaged in fishing is classified as a small business 
if it is independently owned and operated, is not dominant in its field 
of operation (including its affiliates), and has combined annual 
receipts not in excess of $11 million for all its affiliated operations 
worldwide. Of the 421 potentially impacted affiliates, 412 (98 percent) 
were classified as small businesses and 9 (2 percent) were classified 
as large businesses based on their average revenues during 2019-2021.
    The expected impacts of the proposed action were analyzed by 
employing quantitative approaches to the extent possible. Effects on 
profitability associated with the preferred alternatives should be 
evaluated by looking at the impact of the measures on individual 
business entities' costs and revenues. However, in the absence of cost 
data for the commercial black sea bass fishery, changes in gross 
revenues were used as a proxy for profitability. Where quantitative 
data were not available, qualitative considerations are included.
    The nine potentially impacted large businesses had average total 
annual revenues of around $8.35 million during 2019-2021. On average, 
black sea bass accounted for 0.65 percent of total revenues, or 
$54,290, for these nine large businesses. The 412 potentially impacted 
small businesses had average total annual revenues of $684,390 during 
2019-2021. On average, black sea bass accounted for 2 percent (or 
$16,572) of the total revenues for each of these small businesses 
during 2019-2021.
    This action considers changes to the process used to allocate state 
commercial black sea bass quota, as well as a change to the trigger for 
commercial coastwide closures. The other alternatives in this proposed 
rule are administrative in nature (adding the allocations and payback 
provisions into the Federal FMP) and thus will not have economic 
impacts on small entities. The revised allocation process will 
primarily impact the distribution of landings by state; it will have a 
minimal impact on total landings and total revenues. The proposed 
trigger for commercial coastwide closures adds a buffer of up to 5 
percent to the quota level that would require a coastwide closure. This 
would have a positive impact on small entities, as it was designed to 
allow more states and their respective fishermen, to fully utilize 
their quota.

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    This rule will not have a significant economic impact on a 
substantial number of small entities. Therefore, 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.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 8, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 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. Amend Sec.  648.142 as follows:
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a. Revise paragraphs (a) introductory text and (a)(2);
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b. Add paragraph (a)(15);
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c. Revise paragraph (c); and
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d. Add paragraph (f).


Sec.  648.142  Black sea bass specifications.

    (a) Specifications. Commercial quota, recreational landing limit, 
research set-aside, and other specification measures. The Monitoring 
Committee will recommend to the MAFMC and the ASMFC, through the 
specification process, for use in conjunction with the ACL and ACT, 
sector-specific research set-asides, estimates of the sector-related 
discards, a recreational harvest limit, a commercial quota, along with 
other measures, as needed, that are projected to prevent overages of 
the applicable specified limits or targets for each sector as 
prescribed in the FMP. The following measures are to be considered by 
the Monitoring Committee:
* * * * *
    (2) An annual coastwide commercial quota and corresponding state 
allocations.
* * * * *
    (15) A commercial quota overage buffer, of up to 5 percent, that 
would be used to determine when a Federal in-season closure would be 
triggered.
* * * * *
    (c) Distribution of annual commercial quota. The black sea bass 
commercial quota will be allocated to the states of Maine, New 
Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New 
Jersey, Delaware, Maryland, Virginia, and North Carolina. Seventy-five 
percent of the coastwide quota will be allocated according to the 
following baseline percentage allocations: Maine (0.25) New Hampshire 
(0.25); Massachusetts (12.62); Rhode Island (10.68); Connecticut 
(3.00); New York (8.00); New Jersey (19.42); Delaware (5.00); Maryland 
(10.68); Virginia (19.42); and North Carolina (10.68). Based on the 
methodology described in the FMP, 25 percent of the quota will be 
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. The regional allocations will be 
distributed among states within a region in proportion to their 
baseline allocations, except Maine and New Hampshire which each receive 
1 percent of the northern region quota.
* * * * *
    (f) Commercial state quota transfers. Any state implementing a 
state commercial quota for black sea bass may request approval from the 
Regional Administrator to transfer part or all of its annual quota to 
one or more states. Transfer requests must be made by individual or 
joint letter(s) signed by the principal state official with marine 
fishery management responsibility and expertise, or his/her previously 
named designee, for each state involved. The letter(s) must certify 
that all pertinent state requirements have been met and identify the 
states involved and the amount of quota to be transferred.
    (1) Within 10 working days following the receipt of the letter(s) 
from the states involved, the Regional Administrator shall notify the 
appropriate state officials of the disposition of the request. In 
evaluating requests to transfer a quota, the Regional Administrator 
shall consider whether:
    (i) The transfer would preclude the overall annual quota from being 
fully harvested;
    (ii) The transfer addresses an unforeseen variation or contingency 
in the fishery; and
    (iii) The transfer is consistent with the objectives of the Summer 
Flounder, Scup, and Black Sea Bass FMP and Magnuson-Stevens Act.
    (2) The transfer of quota will be valid only for the calendar year 
for which the request was made.
    (3) A state may not submit a request to transfer quota if a request 
to which it is party is pending before the Regional Administrator. A 
state may submit a new request when it receives notification that the 
Regional Administrator has disapproved the previous request or when 
notification of the approval of the transfer has been published in the 
Federal Register.
0
3. In Sec.  648.143, revise paragraphs (a) introductory text and (a)(2) 
to read as follows:


Sec.  648.143  Black sea bass accountability measures.

    (a) Commercial sector fishery closure. The Regional Administrator 
will monitor the harvest of commercial quota based on dealer reports, 
state data, and other available information. All black sea bass landed 
for sale in the states from North Carolina through Maine shall be 
applied against the quota in the state in which it is landed, and the 
commercial annual coastwide quota, regardless of where the black sea 
bass were harvested. The Regional Administrator will determine the date 
on which the annual coastwide quota, plus a buffer up to 5 percent as 
specified in the annual specifications, is projected to be harvested; 
and beginning on that date and through the end of the calendar year, 
the EEZ north of 35[deg]15.3' N lat. will be closed to the possession 
of black sea bass. The Regional Administrator will publish a 
notification in the Federal Register advising that, upon and after that 
date, no vessel may possess black sea bass in the EEZ north of 
35[deg]15.3' N lat. during a closure, nor may vessels issued a 
moratorium permit land black sea bass during the closure. Individual 
states will have the responsibility to close their ports to commercial 
landings of black sea bass during a closure, pursuant to the FMP for 
the black sea bass fishery adopted by the ASMFC.
* * * * *
    (2) Commercial landings overage repayment. If the annual coastwide 
quota is exceeded, 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. 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. 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. If the Regional Administrator determines during the

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fishing year that any part of an overage deduction was based on 
erroneous landings data that were in excess of actual landings for the 
period concerned, he/she will restore the overage that was deducted in 
error to the appropriate quota allocation. The Regional Administrator 
will publish a notification in the Federal Register announcing such 
restoration.
* * * * *
[FR Doc. 2023-10112 Filed 5-12-23; 8:45 am]
BILLING CODE 3510-22-P