[Federal Register Volume 88, Number 189 (Monday, October 2, 2023)]
[Proposed Rules]
[Pages 67721-67726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21738]



[[Page 67721]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 230919-0226]
RIN 0648-BL98


Snapper-Grouper Fishery of the South Atlantic Region; Golden Crab 
Fishery of the South Atlantic Region; Dolphin and Wahoo Fishery of the 
Atlantic; Acceptable Biological Catch Control Rules

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement amendments to the 
Fishery Management Plans (FMPs) for the Snapper-Grouper Fishery of the 
South Atlantic Region (Snapper-Grouper FMP), the Golden Crab Fishery of 
the South Atlantic Region (Golden Crab FMP), and the Dolphin and Wahoo 
Fishery of the Atlantic (Dolphin and Wahoo FMP), referenced here as the 
Acceptable Biological Catch (ABC) Control Rule Amendments. If 
implemented, this proposed rule would modify the ABC control rules, 
allow the phase-in of ABC changes, allow some carry-over of an 
unharvested portion of the annual catch limit (ACL) to the following 
fishing year, and modify the FMP framework procedures to implement 
carry-overs of ACLs when appropriate. The purpose of this proposed rule 
is to ensure catch level recommendations are based on the best 
scientific information available, prevent overfishing while achieving 
optimum yield (OY), and increase flexibility in setting catch limits. 
NMFS also proposes an administrative clarification to existing 
regulations for the Snapper-Grouper FMP framework procedure.

DATES: Written comments must be received no later than November 1, 
2023.

ADDRESSES: You may submit comments on the proposed rule, identified by 
``NOAA-NMFS-2023-0067,'' by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter ``NOAA-NMFS-2023-0067'' in the Search 
box. Click the ``Comment'' icon, complete the required fields, and 
enter or attach your comments.
     Mail: Submit all written comments to Nikhil Mehta, NMFS 
Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 
33701.
    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 (for example, name and address), 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.
    An electronic copy of the ABC Control Rule Amendments, which 
includes an environmental assessment, a fishery impact statement, and a 
regulatory impact review, may be obtained from the NMFS Southeast 
Regional Office website at https://www.fisheries.noaa.gov/action/comprehensive-acceptable-biological-catch-abc-control-rule-amendment-revisions-abc-control.

FOR FURTHER INFORMATION CONTACT: Nikhil Mehta, telephone: 727-824-5305, 
or email: [email protected].

SUPPLEMENTARY INFORMATION: The South Atlantic snapper-grouper and 
golden crab fisheries are managed under the Snapper-Grouper FMP and 
Golden Crab FMP, respectively. The dolphin and wahoo fishery of the 
Atlantic is managed under the Dolphin and Wahoo FMP. These three FMPs 
were prepared by the South Atlantic Fishery Management Council 
(Council) and are implemented by NMFS through regulations at 50 CFR 
part 622 under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). The Council has 
developed, and submitted to NMFS for review and approval, the 
Comprehensive Acceptable Biological Catch Control Rule Amendment: 
Revisions to the Acceptable Biological Catch Control Rules and 
Specifications for Carry-Overs and Phase-Ins. The Council document is 
composed of Amendment 45 to the Snapper-Grouper FMP, Amendment 11 to 
the Golden Crab FMP, and Amendment 11 to the Dolphin and Wahoo FMP.

Background

    The Council and NMFS manage snapper-grouper species and golden crab 
in Federal waters from North Carolina south to the Florida Keys. The 
dolphin and wahoo fishery is managed in Federal waters from Maine south 
to the Florida Keys.
    The Council's Scientific and Statistical Committee (SSC) developed 
an ABC control rule in 2008, using uncertainty and risk traits to 
determine the acceptable risk of overfishing. The ABC control rule is 
the method by which the ABC for a stock is set, ideally based on an 
overfishing limit (OFL) from a stock assessment but at times 
established using more data-limited methodologies. The acceptable risk 
of overfishing is denoted as P-Star (P*) and is applied through 
assessment projections to develop the SSC's ABC recommendation. During 
development of the Comprehensive ACL Amendment by the Council, the SSC 
recommended adding additional levels of specificity to the ABC control 
rules to better address unassessed and data-limited stocks. The 
Comprehensive ACL Amendment included the ABC control rules for the 
Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs in 2012 (77 FR 
15916, March 16, 2012). In 2015, the ABC control rule for the Snapper-
Grouper FMP was revised by adding the Only Reliable Catch Stocks (ORCS) 
approach for applicable snapper-grouper stocks in Amendment 29 to the 
Snapper-Grouper FMP (80 FR 30947, June 1, 2015). The ORCS approach was 
recommended by the Council's SSC for calculating ABC values for 
unassessed stocks when only reliable catch information is available, 
and was determined to be based on the best scientific information 
available.
    In October 2016, NMFS published a final rule to revise the 
guidelines for National Standard 1 (NS1) of the Magnuson-Stevens Act 
(81 FR 71858, October 18, 2016). NS1 states that fishery conservation 
and management measures shall prevent overfishing while achieving, on a 
continuing basis, the optimum yield from each fishery for the United 
States fishing industry. One of the objectives of the 2016 NS1 
revisions was to provide additional flexibility within current 
statutory limits to address fishery management issues. For example, the 
revised NS1 guidelines allow for changes in catch limits to be phased 
in over time and is also described as ``phase-in'' in the ABC Control 
Rule Amendments and this proposed rule. The revised guidelines also 
allow for some of the unused portion of an ACL to be carried over from 
1 fishing year to the next, which is also described as ``carry-over'' 
in this proposed rule. Fishery management councils, NMFS regions, and 
stakeholders have expressed considerable interest in using the phase-

[[Page 67722]]

in and carry-over provisions in ABC control rules. In 2020, 
recommendations and best practices for how to develop and apply these 
provisions were provided in a NOAA Technical Memorandum (NMFS-F/SPO-
203, July 2020). The goals of the technical memo were to: (1) provide 
examples of how carry-over and phase-in provisions have been 
implemented in fisheries so that we can learn from past experiences; 
(2) describe some possible approaches to design and implement carry-
over and phase-in provisions; and (3) identify characteristics of fish 
stocks, fisheries, and management approaches that may impact the 
benefits and risks of applying carry-over and phase-in provisions. If 
implemented by NMFS, this proposed rule would incorporate carry-over 
and phase-in provisions by modifying the existing ABC control rules for 
the Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs by 
clarifying the incorporation of scientific uncertainty and management 
risk, modifying the approach used to determine the acceptable risk of 
overfishing, and prioritizing the use of stock rebuilding plans for 
overfished stocks.

Management Measure Contained in This Proposed Rule

Modify Framework Procedures

    The ABC Control Rule Amendments and this proposed rule would modify 
the framework procedures in the Snapper-Grouper, Golden Crab, and 
Dolphin and Wahoo FMPs to allow for the future transfer, if pre-
qualifying criteria are met, of an unharvested portion of a stock, 
total, or sector-specific ACL to the following fishing year (details 
are described in the Allow Carry-Over of Unharvested Portion of ACLs 
section of this proposed rule).
    The current framework procedure for the Snapper-Grouper FMP in the 
regulations at 50 CFR 622.194 was implemented by Amendment 29 to the 
FMP in 2015. The current framework procedure allows for changes via 
rulemaking to: biomass levels, age-structured analyses, target dates 
for rebuilding overfished species, maximum sustainable yield (MSY) (or 
proxy), OY, ABC, total allowable catch (TAC), quotas (including a quota 
of zero), ACLs, annual catch targets (ACTs), accountability measures 
(AMs), maximum fishing mortality threshold (MFMT), minimum stock size 
threshold (MSST), trip limits, bag limits, size limits, gear 
restrictions (ranging from regulation to complete prohibition), 
seasonal or area closures, fishing year, rebuilding plans, definitions 
of essential fish habitat (EFH), EFH, EFH habitat areas of particular 
concern (HAPCs), or coral HAPCs, restrictions on gear and fishing 
activities applicable in EFH and EFH HAPCs, and establish or modify 
spawning special management zones (SMZs).
    The current framework procedure for the Golden Crab FMP in the 
regulations at 50 CFR 622.252 was implemented by the final rule for the 
original Golden Crab FMP in 1996 (61 FR 43952, August 27, 1996). The 
current framework procedure allows for changes via rulemaking to: 
biomass levels, age-structured analyses, MSY, ABC, TAC, quotas 
(including quotas equal to zero), trip limits, minimum sizes, gear 
regulations and restrictions, permit requirements, seasonal or area 
closures, sub-zones and their management measures, time frame for 
recovery of golden crab if overfished, fishing year (adjustment not to 
exceed 2 months), observer requirements, authority for the NMFS 
Regional Administrator (RA) to close the fishery when a quota is 
reached or is projected to be reached, definitions of EFH, EFH HAPCs, 
or Coral HAPCs.
    The current framework procedure for the Dolphin and Wahoo FMP in 
the regulations at 50 CFR 622.194 was implemented by Amendment 5 to the 
Dolphin and Wahoo FMP in 2014 (79 FR 32878, June 9, 2014). The current 
framework procedure allows for changes via rulemaking to: biomass 
levels, age-structured analyses, target dates for rebuilding overfished 
species, MSY (or proxy), OY, ABC, TAC, quotas (including a quota of 
zero), ACLs, ACTs, AMs, MFMT, MSST, trip limits, bag limits, size 
limits, gear restrictions (ranging from regulation to complete 
prohibition), seasonal or area closures, fishing year, rebuilding 
plans, definitions of EFH, EFH HAPCs, or Coral HAPCs, restrictions on 
gear and fishing activities applicable in EFH and EFH HAPCs, and 
establish or modify spawning SMZs.
    The existing framework procedures for the three FMPs in this 
proposed rule already enable the Council to ask the SSC to consider 
recommending a temporary, higher ABC. However, the existing approach is 
not efficient for changes to catch levels and would likely not allow 
the Council and NMFS to develop and implement changes to catch levels, 
given the timing of Council and SSC meetings, the time required to 
develop a framework action, and the time needed for NMFS to implement 
changes to catch levels within a fishing year based on landings from 
the previous year.
    If NMFS implements this proposed rule, the potential for carry-over 
of an ACL would not be immediate. Before NMFS could implement an ACL 
carry-over, NMFS would have to implement this proposed rule. Then, 
other preceding steps by the Council, SSC, and NMFS must occur.
    A future stock assessment must determine if carry-over is possible 
for that species and specify the appropriate catch level. Then, the SSC 
would determine and recommend an ABC to the Council and the Council 
would develop an FMP amendment or framework action for the species with 
the option of ACL carry-over. If the required rulemaking for a catch 
level change that would follow was implemented by NMFS, then that 
species would be eligible for future carry-over through a subsequent 
abbreviated framework action under the abbreviated framework procedures 
described in this proposed rule. To support potential carry-over 
justification, a Term of Reference, would be added to each future stock 
assessment to project the maximum amount of landings beyond the ABC 
that could be carried over in 1 year while not resulting in 
overfishing, or in the stock becoming overfished, within the projection 
period.
    When the Council develops a subsequent fishery management action in 
response to a stock assessment to specify or revise an ABC and ACL for 
a stock or sector, the Council would determine whether carry-over would 
be authorized if annual conditions cause a stock ACL or sector ACL to 
qualify for carry-over. In doing so, the Council would consider the 
potential need for, and benefits of, carry-over for a stock that could 
become eligible according to criteria specified in the ABC control 
rule. The Council would also consider the duration of time when the 
specified ABC and ACL are effective. An FMP amendment or framework 
action that specifies carry-over for a stock or sector would include 
analysis of the relevant biological, economic, and social information 
necessary to meet the criteria and guidance of the ABC control rule.
    Following the conclusion of each fishing year, Council staff would 
notify the Council if any stocks and sectors for which carry-over is 
approved qualify based on the previous year's landings, and may 
necessitate using preliminary landings estimates from the previous year 
if those landings data are not yet finalized. If a stock or sector 
qualifies for carry-over according to specifications of the ABC and 
annual landings meet criteria specified in the

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ABC control rule, NMFS would implement carry-over of eligible landings 
from the previous year via a temporary rule published in the Federal 
Register through the existing FMP framework procedure and rulemaking 
process.
    The proposed carry-over procedure for eligible fish stocks or 
fishery sectors generally would not require additional advisory panel 
(AP) input or SSC recommendation, because input relevant to an ABC 
being approved with potential for carry-over would be part of the prior 
development process for the FMP amendment or framework in which the ABC 
and ACL for a stock or sector are already specified. Application of the 
carry-over procedure is expected to be routine and formulaic.
    The NMFS RA would review any Council recommendations for carry-over 
and supporting information. If the RA concurs that the Council's 
recommendations are consistent with the objectives of the applicable 
FMP, the Magnuson-Stevens Act, and all other applicable law, the RA 
would be authorized to implement the Council's proposed action through 
publication of appropriate notification in the Federal Register.
    If the Council chooses to deviate from the criteria and guidance of 
the proposed ABC control rules, this abbreviated process would not 
apply.
    Further details of the proposed process can be found in section 
2.4.1 and Appendix J of the ABC Control Rule Amendments. An example of 
the carry-over can be found in Appendix H of the ABC Control Rule 
Amendments.
    The proposed process would allow carry-overs to occur in a more 
timely manner than that of an FMP amendment or framework action. A 
faster process is necessary due to the year-to-year nature of carry-
overs. Under-harvest of an ACL may only be carried over in the 
immediate next year. Therefore, defining a stock's eligibility and the 
amount of ACL being carried over must occur quickly enough such that 
the fishery has time to harvest the carried over amount within the 
fishing year following a year of under-harvest. The proposed process 
also provides the Council discretion in determining whether carry-over 
should be applied to a potentially eligible stock when setting the ABC 
and ACL.
    It is important to note that this proposed rule would not change 
current ABCs or ACLs for any species managed under the FMPs affected by 
the ABC Control Rule Amendments.

Management Measures in the ABC Control Rule Amendments Not Codified by 
This Proposed Rule

    In addition to the measures within this proposed rule, the ABC 
Control Rule Amendments would modify the ABC control rules, allow the 
phasing in of ABC changes, and allow carry-over of unharvested portion 
of the ACL, for Snapper-Grouper, Golden Crab, and Dolphin and Wahoo 
FMPs.

Modify the ABC Control Rules

    As discussed above, the current ABC control rule for the Snapper-
Grouper FMP was revised by Amendment 29, and the Comprehensive ACL 
Amendment implemented the ABC control rules for the Golden Crab, and 
Dolphin and Wahoo FMPs in 2012. For assessed species, the current ABC 
control rules classify assessments according to level 1. Level 1 has 
tier classifications that determine the P* by reducing from an initial 
value of 50 percent according to uncertainty of assessment results and 
stock vulnerability (risk tolerance). ABC is determined through 
projections of assessment information using the accepted probability of 
overfishing. For unassessed species, ABC is determined by levels 2 
through 5, applying one of the following data-limited methods, as data 
allow (listed from highest to lowest priority): Depletion-Based Stock 
Reduction Analysis, Depletion-Corrected Average Catch, Only Reliable 
Catch Stocks (only included in the Snapper-Grouper FMP as level 5), and 
a decision tree based on species catch history. Determination of ABC 
for overfished stocks undergoing rebuilding is not specified. Details 
on the control rule levels, tiers, and classifications are described in 
Table 2.1.1.1 of the ABC Control Rule Amendments. In summary, level 1 
is assigned to assessed stocks and levels 1 through 4 are assigned to 
unassessed stocks for the Golden Crab, and Dolphin and Wahoo FMPs. 
Level 5 is assigned to the applicable unassessed stocks in the Snapper-
Grouper FMP. Level 1 has tiers that further quantitative classification 
and methodology to calculate the ABC based on life-history, catch 
history, scientific uncertainty, stock status, and productivity and 
susceptibility analysis (PSA).
    The proposed rule would modify the ABC control rules for the 
Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs by 
categorizing stocks based on the available information, scientific 
uncertainty evaluation, and incorporation of the Council's risk 
tolerance policy through an accepted P*. The Council would specify the 
P* based on relative stock biomass and a stock risk rating. When 
possible, the SSC would determine the OFL and characterize its 
uncertainty based primarily on the stock assessment and secondarily on 
the SSC's expert opinion. The OFL and its uncertainty would then be 
used to derive and recommend the ABC, based on the risk tolerance 
specified by the Council. The detailed step-by-step procedure detailing 
how the ABC is derived for assessed stocks can be found in section 
2.1.1 of the ABC Control Rule Amendments. ABC for unassessed stocks 
would be recommended by the SSC based on applicable data-limited 
methods. Unassessed stocks would be assigned the moderate biomass level 
unless there is a recommendation from the SSC that justifies assignment 
of a different level. For overfished stocks, the Council would specify 
a stock rebuilding plan, considering recommendations from the SSC, and 
the AP of the respective FMP. The ABC enacted while the rebuilding plan 
is in effect would be based on recommendations from the Council's SSC. 
The probability of success for rebuilding plans (1 minus P*) would be 
at least 50 percent. Control rule categories for assessments are 
described in detail in Table 2.1.1.2 of the ABC Control Rule 
Amendments.
    In summary, four categories would facilitate an ABC determination 
based on scientific uncertainty and SSC guidance. The Council, with 
advice from the SSC and AP, would evaluate management risk for each 
stock through a stock risk rating. Stock risk ratings include 
information currently used in the PSA, but also incorporate socio-
economic (for example, potential for discard losses, annual commercial 
value, recreational desirability, etc.) and environmental attributes 
(for example, climate change) (see Appendix E of the ABC Control Rule 
Amendments for more details). These recommendations would be revisited 
when new information becomes available (for example, a new stock 
assessment). The Council would then specify the risk rating as low, 
medium, or high risk of overfishing. A higher risk of overfishing would 
indicate that risk tolerance (i.e., the accepted probability of 
overfishing) should be lower. These stock risk ratings, along with 
relative biomass levels, would be used to determine the Council's 
default risk tolerance for each stock. Default P* values based on 
relative biomass and stock risk rating are shown in Table 2.1.1.3 of 
the ABC Control Rule Amendments. As an

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example, a stock with high biomass and medium stock risk rating would 
have a P* of 45 percent. This would be lower than the OFL, in 
accordance with Magnuson-Stevens Act. The SSC can recommend the Council 
reconsider the stock risk rating. This could happen, for example, with 
the emergence of new scientific studies or new information discovered 
through a stock assessment.
    The modified ABC control rules would also allow the Council to 
deviate, to a greater or lesser amount, from the default accepted 
probability of overfishing by up to 10 percent for an individual stock, 
based on its expert judgment, new information, or recommendations by 
the SSC or other expert advisors. Accepted probability of overfishing 
may not exceed 50 percent. Using a 50 percent probability of 
overfishing implies negligible scientific uncertainty and sets OFL 
equal to ABC. At P* equals 0.50, removals above ABC caused by 
deviations in biological parameters (for example, natural mortality 
(M), recruitment) could cause an overfishing determination and delay 
rebuilding plans. Therefore, adjusting P* above the value recommended 
by the SSC would be infrequent and well justified based on new 
scientific understanding and the Council's risk tolerance. 
Additionally, when requested by the Council, the SSC would recommend 
the ABC for up to 5 years as both a constant value across years and as 
individual annual values for the same period of years. These options 
provide more flexibility to both the Council and SSC in the ABC 
determination.
    The proposed rule would not change the current ABC levels for any 
species managed under the Snapper-Grouper, Golden Crab, and Dolphin and 
Wahoo FMPs. Modifying the ABC control rules as proposed would give the 
SSC the ability to recommend adjusting or deriving uncertainty of 
future assessment results (ultimately impacting projections of future 
catch) if they determine uncertainty is not adequately estimated 
through information used in the assessment. Evaluation of risk 
tolerance would also be improved by considering factors beyond the 
current PSA and expanding the range of reference points used to 
describe and incorporate relative biomass. For unassessed stocks, the 
proposed modifications would expand the number of methods that could be 
considered for estimating OFL and ABC. The addition of economic factors 
in the ABC control rules would allow the Council to better consider the 
long-term economic implications when examining management risk which 
could lead to better economic outcomes and increase net economic 
benefits in a fishery for a given species. The inclusion of social 
factors in the ABC control rules would allow the Council to directly 
consider the importance of a given species to fishing communities and 
businesses when determining risk tolerance and would have long-term 
social benefits in the form of a more appropriate ABC.

Allow the Phase-In of ABC Changes

    Currently, the phase-in of ABC changes is not allowed in the 
Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs. The proposed 
rule would establish criteria specifying when the phase-in of ABC 
changes would be allowed and specify the approach for the phase-in of 
ABC changes.
    The proposed rule would allow the phase-in of increases to ABC as 
specified by the Council, with advice from the SSC and AP. Increases to 
ABC (assuming the presence of comparable data between assessments) are 
generally indicative of an increase in relative biomass and improving 
stock condition. This allows greater consideration of ecological, 
social, and economic effects of an increased ABC, and increased 
flexibility in how that change can be implemented. Because ABCs during 
an increasing phase-in would be less than those initially recommended 
by the SSC, the phase-in period is not limited (i.e., it can exceed the 
maximum timeframe specified for the phase-in decreases). The Council 
may specify ABC to be less than the SSC's recommended ABC, but it may 
not exceed the SSC's recommendation. Phasing in an ABC increase would 
set ABC below the SSC's recommendation. If the phase-in is included in 
projections used to develop the SSC's ABC recommendation, there also 
may be an increase to the recommended long-term ABC (i.e., the ABC that 
persists after the phase-in is complete). Thus, phasing in increases to 
ABC over a longer time period could result in a greater increase to 
long-term ABC, and phasing in increases over a shorter period could 
result in a smaller increase to long-term ABC.
    The proposed rule would allow the phase-in of decreases to ABC when 
a new ABC is less than 80 percent of the existing ABC, and over a 
period not to exceed 3 years, which is the maximum phase-in period 
allowed by the NS1 guidelines. The criterion requiring a minimum 
threshold of difference between the current and new ABCs to be 20 
percent defines a significant enough change to merit phasing in the 
change and is more flexible than other minimum threshold levels 
considered in the ABC Control Rule Amendments. Phase-ins may be used 
regardless of the stock relative biomass. The Council would consider 
whether to apply a phase-in on a case-by-case basis when specifying a 
stock ABC through an amendment after a new ABC has been recommended by 
the SSC. A longer phase-in period provides more flexibility and allows 
a more gradual change from the existing ABC to the new ABC.
    The phase-in of the ABC is an option the Council can consider to 
address the social and economic effects from management changes. 
Adopting this flexibility does not require the Council to phase in all 
ABC changes, nor does adopting one approach prevent the Council from 
choosing a more restrictive schedule of ABC phase-ins (less than 3 
years). When considering whether to phase in an ABC change, the Council 
would compare the risk to the stock against the expected social and 
economic benefits of the alternative ABC. Management strategy 
evaluations may be used to quantify such trade-offs. The Council would 
be able to consult with its scientific and fishery advisors to help 
develop a rationale and implementation plan for phase-ins. The proposed 
phase-in of ABC changes is consistent with the NMFS 2020 guidance and 
incorporates flexibility as per the revised NS1 guidelines into the 
FMPs for Snapper-Grouper, Golden Crab, and Dolphin and Wahoo.

Allow Carry-Over of Unharvested Portion of ACLs

    Currently, carry-over of unharvested portion of ACLs is not allowed 
in the Snapper-Grouper, Golden Crab, and Dolphin and Wahoo FMPs. The 
proposed rule would establish criteria specifying circumstances when an 
unharvested portion of the originally specified sector ACL can be 
carried over from 1 year to increase the available harvest in the 
immediate next year. Carry-overs may not be delayed, and only amounts 
from the originally specified sector ACL may be carried over. Carry-
over of the unharvested portion of a sector ACL would be allowed if:
    (1) The stock status is known;
    (2) The stock is neither overfished nor experiencing overfishing;
    (3) An overfishing limit for the stock is defined;
    (4) ABC decreases are not being phased-in;
    (5) There are measures that restrict annual landings to the ACL; 
and
    (6) The post-season AM that reduces the ACL in the following year 
according

[[Page 67725]]

to any landings overages is in place for that stock and sector.
    The proposed rule would also specify limits on how much of the 
unharvested portion of a sector ACL may be carried over from 1 year to 
increase the sector ACL in the next year. The ABC and the total ACL may 
be temporarily increased to allow this carry-over. The temporary ABC 
may not exceed the OFL. The revised total ACL may not exceed the 
temporary ABC or the total ACL plus the carried over amount, whichever 
is less. If a stock experiences overfishing, either as the result of a 
stock assessment or as determined by NMFS' annual evaluation of 
landings, that stock would no longer qualify for carry-over. Additional 
conditions to annually qualify for carry-over can be added on a stock-
by-stock basis. For example, to prevent overharvest of other species 
commonly caught with the target species (referred to as co-caught 
species) during years with a carried-over ACL, a future FMP amendment 
specifying an ABC and ACL with carry-over could additionally require 
that the previous year's harvest for co-caught species also be less 
than or equal to the ACL for carry-over to occur. When applicable, the 
Council would specify whether fisheries that have split seasons or sub-
sector allocations (such as gear allocations) should be eligible for 
inter-annual carry-over on a case-by-case basis.
    Carry-overs would also be sector-specific. The Snapper-Grouper and 
Dolphin and Wahoo FMPs have both commercial and recreational sectors 
whereas the Golden Crab FMP includes only a commercial sector. Thus, if 
only one sector is carrying over unused ACL, the carried-over amount 
would be allocated only to that sector, subject to limitations defined 
above. If more than one sector is carrying over unused ACL in the same 
year, each sector carry-over amount would be completely allocated to 
the sector from which it was derived, unless the sum of all carry-over 
amounts plus the specified total ACL is greater than the OFL. In this 
case, the difference between the temporary revised ABC and the 
specified total ACL would be allocated using sector allocation 
percentages specified by the FMP. A revised sector ACL and revised ABC 
would remain in place for a single fishing year. Following a year that 
included carry-over, evaluations of carry-over amounts for future years 
would be based on the ABC and sector ACLs specified by the FMP rather 
than on the temporarily revised values.
    The proposed carry-over criteria and conditions are consistent with 
the NMFS 2020 guidance. The proposed carry-over criteria and conditions 
would also make carry-over applicable to only a few stocks managed by 
the Council under the Snapper-Grouper FMP at the time this action was 
developed. However, allowing carry-over does fulfill Federal guidance 
on carry-overs that requires allowance of this management tool to be 
included in an FMP, and provide additional management flexibility to 
better enable harvest of optimum yield of a healthy stock.

Proposed Changes to Codified Text Not in the ABC Control Rule 
Amendments

    NMFS proposes to clarify existing regulations in 50 CFR 622.194(a) 
about the scope of allowable management changes using the framework 
procedure in the Snapper-Grouper FMP. Specifically, NMFS proposes to 
clarify allowable changes via framework to EFH, EFH HAPCs, and coral 
HAPCs.
    In 2000, NMFS implemented two final rules that updated the Snapper-
Grouper FMP framework procedures to include EFH, EFH HAPCs, and coral 
HAPCs that enabled more timely implementation of subsequent management 
measures than is possible via an FMP amendment (65 FR 37292, June 14, 
2000; 65 FR 51248, August 23, 2000). Since NMFS implemented those final 
rules, no other subsequent rulemaking affected the framework procedure 
for EFH, EFH HAPCs, and coral HAPCs. Specifically, and along with other 
actions, the referenced final rules implemented Council recommendations 
to allow for the establishment of or modifications to EFH habitat areas 
of particular concern (HAPCs) or coral HAPCs via framework procedure. 
However, existing regulations appear more generally. Further, 
regulations state both ``definitions of EFH'' and ``EFH,'' and these 
could be interpreted as duplicative.
    NMFS has determined the allowable changes via framework action in 
the regulations could more clearly describe the existing parameters for 
EFH, EFH HAPCs, and coral HAPCs. Accordingly, NMFS proposes to revise 
Sec.  622.194(a) without changing the Council's original management 
recommendations.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the amendment, the Snapper-Grouper, Golden Crab, and 
Dolphin and Wahoo FMPs, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Magnuson-Stevens Act provides the legal basis for this proposed 
rule. No duplicative, overlapping, or conflicting Federal rules have 
been identified. A description of this proposed rule, why it is being 
considered, and the purposes of this proposed rule are contained in the 
SUMMARY and SUPPLEMENTARY INFORMATION sections of the preamble. The 
objectives of this proposed rule are to ensure catch level 
recommendations are based on the best scientific information available, 
prevent overfishing while achieving OY, and include flexibility in 
setting catch limits as allowed by the Magnuson-Stevens Act and in 
accordance with NMFS' guidance on carry-over and phase-in provisions.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, will not have a 
significant economic impact on a substantial number of small entities. 
A description of the factual basis for this determination follows.
    This proposed rule, if implemented, would revise the ABC control 
rules and framework procedures in the Snapper-Grouper FMP, Golden Crab 
FMP, and Dolphin and Wahoo FMP. Specifically, this proposed rule would 
revise the ABC control rules to better distinguish the roles of the 
Council and its SSC in determining risk and uncertainty components, 
include provisions for phasing in ABC changes, include provisions for 
carrying over unharvested portions of ACLs, and revise framework 
procedures to include a procedure for implementing carry-overs when 
allowance of carry-over is specified in the FMP and the sector meets 
annual eligibility requirements. Even though this proposed rule would 
alter the existing regulations to allow for the possibility for 
transfer of an unharvested total or sector-specific ACL to the 
following fishing year, it would not implement any new management 
measures. As such, this proposed rule would not regulate any small 
entities.
    Because this proposed rule, if implemented, is not expected to 
directly regulate any small entities, it is not expected to affect a 
substantial number of small entities. Further, because no entities are 
expected to be directly affected by this proposed rule, the profits of 
small entities are also not expected to change and thus no

[[Page 67726]]

economic impacts on small entities are expected.
    Because this proposed rule, if implemented, would not have a 
significant economic impact on a substantial number of small entities, 
an initial regulatory flexibility analysis is not required and none has 
been prepared.
    This proposed rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 622

    Atlantic, Fisheries, Fishing, South Atlantic.

    Dated: September 26, 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 622 as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH 
ATLANTIC

0
1. The authority citation for part 622 continues to read as follows:

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

0
2. In Sec.  622.194, revise paragraph (a) to read as follows:


Sec.  622.194  Adjustment of management measures.

* * * * *
    (a) Biomass levels, age-structured analyses, target dates for 
rebuilding overfished species, maximum sustainable yield (or its 
proxy), optimum yield, acceptable biological catch, total allowable 
catch, quotas (including a quota of zero), annual catch limits, annual 
catch targets, accountability measures, maximum fishing mortality 
threshold, minimum stock size threshold, trip limits, bag limits, size 
limits, gear restrictions (ranging from regulation to complete 
prohibition), seasonal or area closures, fishing year, rebuilding 
plans, definitions of essential fish habitat (EFH), establishment of or 
modifications to EFH habitat areas of particular concern (HAPCs) or 
coral HAPCs, restrictions on gear and fishing activities applicable in 
EFH and EFH HAPCs, establish or modify spawning SMZs, and allow 
transfer of the unharvested total or sector ACL to the following 
fishing year.
* * * * *
0
3. In Sec.  622.252, revise paragraph (a) to read as follows:


Sec.  622.252  Adjustment of management measures.

* * * * *
    (a) Biomass levels, age-structured analyses, maximum sustainable 
yield, acceptable biological catch, total allowable catch, quotas 
(including quotas equal to zero), trip limits, minimum sizes, gear 
regulations and restrictions, permit requirements, seasonal or area 
closures, sub-zones and their management measures, time frame for 
recovery of golden crab if overfished, fishing year (adjustment not to 
exceed 2 months), observer requirements, authority for the Regional 
Administrator to close the fishery when a quota is reached or is 
projected to be reached, definitions of essential fish habitat (EFH), 
EFH habitat areas of particular concern (HAPCs), or coral HAPCs, and 
allow transfer of the unharvested ACL to the following fishing year.
* * * * *
0
4. In Sec.  622.281, revise paragraph (a) to read as follows:


Sec.  622.281  Adjustment of management measures.

* * * * *
    (a) Biomass levels, age-structured analyses, maximum sustainable 
yield, optimum yield, overfishing limit, total allowable catch, 
acceptable biological catch (ABC), ABC control rule, annual catch 
limits, annual catch targets, accountability measures, trip limits, 
minimum sizes, gear regulations and restrictions, permit requirements, 
seasonal or area closures, sub-zones and their management measures, 
overfishing definitions and other status determination criteria, time 
frame for recovery of Atlantic dolphin or wahoo if overfished, fishing 
year (adjustment not to exceed 2 months), authority for the Regional 
Administrator to close a fishery when a quota is reached or is 
projected to be reached or reopen a fishery when additional quota 
becomes available, definitions of essential fish habitat (EFH), EFH 
habitat areas of particular concern (HAPCs), or coral HAPCs, and allow 
transfer of the unharvested total or sector ACL to the following 
fishing year.
* * * * *
[FR Doc. 2023-21738 Filed 9-29-23; 8:45 am]
BILLING CODE 3510-22-P