[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Proposed Rules]
[Pages 80263-80268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25431]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 231113-0266]
RIN 0648-BM59


Fisheries of the Northeastern United States; 2024 and Projected 
2025 Specifications for the Summer Flounder and Scup Fisheries, and 
2024 Specifications for the Black Sea Bass Fishery

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 2024 specifications for the summer flounder, 
scup, and black sea fisheries, and projected 2025 specifications for 
summer flounder and scup. 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 and to provide an opportunity for public comment. The 
proposed specifications are intended to establish allowable harvest 
levels for these species that will prevent overfishing, consistent with 
the most recent scientific information.

DATES: Comments must be received on or before December 2, 2023.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2023-0131, 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-2023-0131 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 part of the 
public record and will generally be posted for public viewing on 
https://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).
    A Supplemental Information Report (SIR) was prepared for the 2024 
black sea bass specifications. An Environmental Assessment (EA) was 
prepared for the 2024 and projected 2025 summer flounder and scup 
specifications. Copies of the SIR and EA are available on request from 
Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery 
Management Council, Suite 201, 800 North State Street, Dover, DE 19901. 
The SIR and EA are also accessible via the internet at https://www.mafmc.org/supporting-documents.

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

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 
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. This 
action proposes 2024 ABCs, as well as the recreational and commercial 
ACLs, ACTs, commercial quotas, and RHLs for all three species, 
consistent with the recommendations made by the Commission's Summer 
Flounder, Scup, and Black Sea Bass Board and Council at their joint 
August 2023 meeting. This action also proposes projected 2025 ABCs and 
corresponding specifications for summer flounder and scup.

Proposed 2024 and Projected 2025 Specifications

Summer Flounder Specifications

    The Council and Board-recommended 2024 and projected 2025 summer 
flounder catch and landings limits are shown in table 1. The 
recommendations are based on the averaged 2024-2025 ABCs recommended by 
the Council's Science and Statistical Committee (SSC). This approach 
allows for constant catch and landings limits across both years. The 
ABCs are based on the overfishing limit (OFL) and the Council's risk 
policy, resulting in a 32- to 38-percent probability of overfishing. 
For summer flounder, this results in a 42-percent decrease in the 
recommended 2024 and 2025 ABC relative to the 2023 ABC. The proposed 
2024-2025 commercial quota represents a 42-percent decrease compared to 
the 2023 quota, and an approximately 30-percent reduction compared to 
2022 reported landings. The proposed 2024-2025 RHL is a 40-percent 
decrease compared to the 2023 RHL.

               Table 1--Summary of 2024 and Projected 2025 Summer Flounder Fishery Specifications
----------------------------------------------------------------------------------------------------------------
                                 Specifications                                    Million lb       Metric ton
----------------------------------------------------------------------------------------------------------------
OFL............................................................................    22.98 (2024)    10,422 (2024)
                                                                                   24.97 (2025)    11,325 (2025)
ABC............................................................................           19.32            8,761
Commercial ACL = ACT...........................................................           10.62            4,819

[[Page 80264]]

 
Commercial Quota...............................................................            8.79            3,987
Recreational ACL = ACT.........................................................            8.69            3,942
Recreational Harvest Limit.....................................................            6.35            2,879
----------------------------------------------------------------------------------------------------------------

    The initial 2024 state-by-state summer flounder quotas are provided 
in table 2. As required in Amendment 21 (85 FR 80661), if the 
commercial quota in any year is higher than 9.55 million lb (4,332 mt), 
the first 9.55 million lb (4,322 mt) is distributed according to the 
baseline formula, and any additional quota, beyond this threshold, will 
be distributed in equal shares to all states except Maine, Delaware, 
and New Hampshire, which would split 1 percent of the additional quota. 
Because this year's quota is below the threshold, the state-by-state 
allocations below are based on the baseline allocations (the baseline 
allocations were established through Amendment 2 and modified by 
Amendment 4). Through the final rule for this action, prior to the 
start of the fishing year, we will announce any adjustments necessary 
to address any long-standing overages or potential 2023 overages to 
provide the states with their final quotas.

                           Table 2--Initial 2024 Summer Flounder State-by-State Quotas
----------------------------------------------------------------------------------------------------------------
                                                                                   Initial 2024    Initial 2024
                             State                                Percent share    quotas * (lb)   quotas * (mt)
----------------------------------------------------------------------------------------------------------------
ME.............................................................          0.04756           4,180            1.90
NH.............................................................          0.00046              40            0.02
MA.............................................................          6.82046         599,507          271.93
RI.............................................................         15.68298       1,378,507          625.28
CT.............................................................          2.25708         198,394           89.99
NY.............................................................          7.64699         672,157          304.89
NJ.............................................................         16.72499       1,470,098          666.83
DE.............................................................          0.01779           1,564            0.71
MD.............................................................          2.03910         179,233           81.30
VA.............................................................         21.31676       1,873,707          849.90
NC.............................................................         27.44584       2,412,443        1,094.27
                                                                ------------------------------------------------
    Total......................................................              100       8,789,830        3,987.02
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* Initial quotas do not account for any previous overages.

    This action makes no changes to the current commercial management 
measures, including the minimum fish size (14-inch (36-centimeters 
(cm)) total length), gear requirements, and possession limits. Changes 
to 2024 recreational management measures (bag limits, size limits, and 
seasons) are not considered in this action, but will be considered by 
the Board and Council later this year.

Black Sea Bass Specifications

    No updated stock assessment information is available for black sea 
bass this year; therefore, the SSC decided to set the 2024 ABC equal to 
the 2023 ABC. The Council and Board made no changes to the ACLs or ACTs 
compared to 2023. While the ACLs and ACTs are the same as 2023, updated 
dead-discard projections for each sector led to a change in the 
commercial quota and RHL. The Council and Board approved a 2024 
commercial quota of 6 million pound (lb) (2,721 mt), which is a 25-
percent increase from 2023, and a 2024 RHL of 6.27 million lb (2,845 
mt), which is a 5-percent decrease from 2023. An updated management 
track stock assessment is anticipated to be available in 2024 for 
setting future specifications. The Council and Board-recommended 2024 
black sea bass catch and landings limits are shown in table 3.

                             Table 3--2024 Black Sea Bass Catch and Landings Limits
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                                                                                               2024
                                 Specifications                                 --------------------------------
                                                                                   Million lb       Metric ton
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OFL............................................................................           17.01            7,716
ABC............................................................................           16.66            7,557
Expected Commercial Discards...................................................            1.50              680
Expected Recreational Discards.................................................            2.89            1,311
Commercial ACL = ACT...........................................................            7.50            3,401
Commercial Quota...............................................................            6.00            2,721
Recreational ACL = ACT.........................................................            9.16            4,156
RHL............................................................................            6.27            2,845
----------------------------------------------------------------------------------------------------------------


[[Page 80265]]

    This action proposes no changes to the 2024 commercial management 
measures for black sea bass, including the commercial minimum fish size 
(11-inch (27.94-cm) total length) and gear requirements. Changes to 
2024 recreational management measures (bag limits, size limits, and 
seasons) are not considered in this action, but will be considered by 
the Board and Council later this year.
    On August 2, 2023, we partially approved Amendment 23 to the Summer 
Flounder, Scup, and Black Sea Bass FMP. The approved measures change 
the Federal coastwide commercial in-season accountability measure such 
that the commercial fishery will now close when the quota plus an 
additional buffer of up to 5 percent is projected to be landed. The 
intent of this buffer is to minimize negative economic impacts when the 
coastwide quota is reached before all states have fully harvested their 
allocations due to overages in individual states.
    Each year, through the specification process, the Council and Board 
will recommend a buffer from 0 to 5 percent. For 2024, the Council and 
Board have recommended a 5-percent commercial in-season closure buffer, 
and this action proposes this buffer. Given recent patterns in the 
fishery, an in-season closure is not expected for 2024; however, the 
Council and Board agreed that, in the unlikely event it is needed, a 5-
percent buffer could have socioeconomic benefits with little risk to 
stock status.
    We are in the process of publishing a final rule to implement the 
approved buffer provision. If the Amendment 23 final rule is published 
and effective prior to the final rule implementing these 
specifications, we intend to implement the Council and Board's proposed 
5-percent commercial in-season closure buffer in the final rule for 
this specifications action. If the Amendment 23 final rule is not 
published prior to the finalization of these specifications, we will 
consider implementing the buffer for 2024 through that action.

Scup Specifications

    The Council and Board-recommended 2024-2025 scup catch and landings 
limits are shown in table 4. The SSC recommended 2024-2025 ABCs are 
based on the OFL and the Council's risk policy, resulting in a 49-
percent probability of overfishing. To ensure that the probability of 
overfishing remained below 50 percent in each year, the SSC recommended 
annually varying ABCs for 2024 and 2025. This results in a proposed 
2024 ABC that is 49 percent higher than the 2023 ABC; and a proposed 
2025 ABC that is 35 percent higher than the 2023 ABC. The proposed scup 
commercial quota for 2024 is 52 percent higher than the 2023 commercial 
quota. The proposed 2024 RHL is 43 percent higher than the 2023 RHL.

                                Table 4--2024-2025 Scup Catch and Landing Limits
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                                                               2024                            2025
                 Specifications                  ---------------------------------------------------------------
                                                    Million lb      Metric ton      Million lb      Metric ton
----------------------------------------------------------------------------------------------------------------
OFL.............................................           44.74          20,295           40.55          18,393
ABC.............................................           44.13          20,015           39.99          18,139
Expected Commercial Discards....................            7.39           3,350            7.08           3,211
Expected Recreational Discards..................            2.17             984            2.08             943
Commercial ACL = ACT............................           28.68          13,010           25.99          11,790
Commercial Quota................................           21.30           9,660           18.91           8,579
Recreational ACL = ACT..........................           15.44           7,005           14.00           6,349
RHL.............................................           13.27           6,021           11.92           5,406
----------------------------------------------------------------------------------------------------------------

    The commercial scup quota is divided into three commercial fishery 
quota periods, as outlined in table 5.

                       Table 5--Commercial Scup Quota Allocations for 2024 by Quota Period
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                          Quota period                            Percent share         lb              mt
----------------------------------------------------------------------------------------------------------------
Winter I.......................................................            45.11       9,608,430           4,358
Summer.........................................................            38.95       8,296,350           3,763
Winter II......................................................            15.94       3,395,220           1,540
                                                                ------------------------------------------------
    Total......................................................            100.0      21,300,000           9,661
----------------------------------------------------------------------------------------------------------------

    The current quota period possession limits are not changed by this 
action and are outlined in table 6.

                           Table 6--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

[[Page 80266]]

 
Winter II......................................................            15.94          12,000           5,443
                                                                ------------------------------------------------
    Total......................................................            100.0             N/A             N/A
----------------------------------------------------------------------------------------------------------------

    The Winter I scup commercial 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 specify that the Winter II possession limit increases 
consistent with the increase in the quota, as described in table 7.

 Table 7--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         Rollover from Winter I to Winter II        Increase in initial     Final Winter II
   possession limit   -----------------------------------------------       Winter II         possession limit
----------------------                                                  possession limit     after rollover from
                                                                     ----------------------  Winter I to Winter
                                  lb                      kg                                         II
    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     * 2,000,000-2,500,000    907,185-1,133,981      6,000      2,722     18,000      8,165
----------------------------------------------------------------------------------------------------------------
* 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 this example.

    This action proposes no changes to the 2024 commercial management 
measures for scup, including the minimum fish size (9-inch (22.9-cm) 
total length), gear requirements, and quota period possession limits.
    This action proposes a potential change to the recreational scup 
management measures. Currently, there is a Federal recreational scup 
closure from January 1-April 30. The Board and Council previously asked 
if we would reconsider this closure. Due to the timing of the closure 
and the recreational regulation-setting process, we are proposing the 
removal of the closure through this action. In the fall, additional 
recreational data and model results will be available, allowing us to 
determine if it is appropriate to remove the closure. We will 
reconsider the Federal closure if the analyses available in December 
demonstrate that the closure is not needed to constrain scup catch to 
the target level, or if additional Federal or state measures are 
proposed that eliminate the need for the closure If there are 
insufficient data, or, if we determine that the closure remains 
necessary to constrain scup harvest to the required levels, we will not 
remove the closure. We will announce our final decision on the closure 
in the final rule for this action. Additional recreational management 
measure changes (including additional adjustments to the open season, 
possession limits, and minimum fish size) will be considered at the 
joint Council and Commission meeting in December 2023.

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 Summer Flounder, Scup, and Black Sea Bass FMP, 
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.
    NMFS finds that a 15-day comment period for this action provides a 
reasonable opportunity for public participation in this action pursuant 
to Administrative Procedure Act section 553(c) (5 U.S.C. 553(c)), while 
also ensuring that the final specifications are in place for the start 
of the fishing year on January 1, 2024 as required by court order 
(North Carolina Fisheries Association v. Daley). A longer comment 
period and subsequent potential delay in implementation past the start 
of the 2023 fishing year would be contrary to the public interest, as 
it could create confusion both in the industry around current quotas, 
and with state agencies as they prepare their annual management 
measures.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    The Mid-Atlantic Fishery Management Council conducted an evaluation 
of the potential socioeconomic impacts of the proposed measures in 
conjunction with an EA and a SIR. The proposed action would set the 
2024 catch and landings limits for summer flounder, scup, and black sea 
bass based on the recommendations of the SSC, the Council, and Board. 
This action also proposes projected 2025 summer flounder and scup 
specifications; however, a future action would be needed to implement 
these specifications or alternative measures.
    Vessel ownership data 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 that may be 
affected by this action.
    Affiliates were identified as primarily commercial fishing 
affiliates if the

[[Page 80267]]

majority of their revenues in 2022 came from commercial fishing. Some 
of these affiliates may have also held party/charter permits. 
Affiliates were identified as primarily for-hire fishing affiliates if 
the majority of their revenues in 2022 came from for-hire fishing. Some 
of these affiliates may have also held commercial permits. Affiliates 
were identified as small or large businesses based on their average 
revenues during 2018-2022.
    A total of 729 primarily commercial affiliates were identified as 
potentially impacted by this action based on the definitions above. A 
total of 723 (99 percent) of these commercial affiliates were 
classified as small businesses and 6 (1 percent) were classified as 
large businesses.
    A total of 482 primarily for-hire affiliates were identified as 
potentially impacted by this action based on the definitions above. All 
482 of these for-hire affiliates were categorized as small businesses.

Expected Impacts on Commercial Entities

    The six potentially impacted primarily commercial large business 
affiliates had average total annual revenues of $20.6 million, and 
$403,440 on average in annual revenues from summer flounder, scup, and/
or black sea bass during 2020-2022. On average, summer flounder, scup, 
and/or black sea bass accounted for about 2 percent of total annual 
revenues for these six large businesses.
    The 723 potentially impacted primarily commercial small business 
affiliates had average total annual revenues of $457,771, and $53,567 
on average in annual revenues from commercial landings of summer 
flounder, scup, and/or black sea bass during 2020-2022. Summer 
flounder, scup, and/or black sea bass accounted for an average of 12 
percent of the total revenues for these 723 small businesses.
    The proposed 2024-2025 summer flounder commercial quotas are 
expected to result in moderate negative socioeconomic impacts for 
commercial fishery participants because they would require a decrease 
in commercial landings and therefore would be expected to result in a 
decrease in revenues. Some of these negative impacts are expected to be 
offset if a decrease in landings results in an increase in price. The 
analysis described in the EA [See ADDRESSES] predicted an expected 
price of $3.40 per pound under the proposed 2024-2025 quota based on 
previous landings and price information, resulting in a total expected 
value of the harvest of $29.87 million. Compared to the 2022 total 
value of $30.41 million, the expected total reduction in revenue is 
1.74 percent, spread among all vessels in the fleet. Impacts may vary 
by state and by fishery participant, particularly if potential price 
increases do not occur to the same degree in all areas.
    The proposed 2024-2025 scup commercial quotas are expected to 
result in similar levels of commercial scup landings and revenues as 
the past several years. Commercial scup landings appear to be 
influenced more by market facts than the annual commercial quota. The 
preferred 2024-2025 scup quotas represent an increase from 2022-2023; 
however, it is unlikely that commercial effort or landings would 
increase given recent trends. In general, the preferred 2024-2025 scup 
quotas are expected to have moderate positive impacts for both the 
small and large businesses identified above given they are expected to 
result in revenues similar to those over the past several years.
    The proposed 2024 commercial quota is slightly higher than recent 
black sea bass landings. By allowing for slightly higher levels of 
landings, and therefore revenues, compared to recent years, the 
proposed 2024 quota is expected to have moderate positive impacts for 
small and large commercial fishing businesses. Given recent patterns in 
the black sea bass fishery, it is not expected that the proposed 5-
percent in-season closure buffer will be needed for black sea bass in 
2024. In the unlikely event that it is needed, it could allow landings 
to exceed the quota by up to 5 percent. This is not expected to result 
in notably different impacts than the impacts of the quota.

Expected Impacts on Recreational Entities

    As previously stated, 482 for-hire fishing affiliates were 
identified as potentially impacted by this action based on the 
definition above. All these affiliates were categorized as small 
businesses based on their average 2018-2022 revenues. These 482 small 
businesses had average total annual revenues of $130,921 during 2020-
2022. Their average revenues from recreational for hire fishing (for a 
variety of species) was $107,429. Average annual revenues from for-hire 
fishing ranged from less than $10,000 for 195 affiliates to over 
$1,000,000 for 8 affiliates. On average, recreational fishing accounted 
for 85 percent of the total revenues for these 482 small businesses.
    It is not possible to derive what proportion of the for-hire 
revenues came from fishing activities for an individual species. 
Nevertheless, given the popularity of summer flounder, scup, and black 
sea bass as recreational species, revenues generated from these species 
are likely important to many of these businesses, at least at certain 
times of the year.
    For-hire revenues are impacted by a variety of factors, including 
regulations and demand for for-hire trips for summer flounder, scup, 
black sea bass, and other potential target species, as well as weather, 
the economy, and other factors. Recreational measures for 2024-2025 are 
not yet known. However, this action does propose the potential removal 
of the Federal recreational scup closure that is currently effective 
from January 1-April 30. Given the timing of the current closure and 
the limited proportion of recreational scup fishing that occurs in 
Federal water any benefit of the closure removal would be minimal. The 
approach for Federal waters recreational measures will be determined by 
the Council and Board in December 2023. States will work through the 
Commission process to determine the state waters measures in early 
2024.
    This action is not expected to adversely impact revenues for 
commercial and recreational vessels that fish for summer flounder, 
scup, and black sea bass. Because this rulemaking will 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 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: November 13, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposed 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. Revise Sec.  648.127 to read as follows:

[[Page 80268]]

Sec.  648.127   Scup recreational fishing season.

    Fishermen and vessels that are not eligible for a scup moratorium 
permit under Sec.  648.4(a)(6), may possess scup from January 1 through 
December 31, subject to the possession limit specified in Sec.  
648.128(a). The recreational fishing season may be adjusted pursuant to 
the procedures in Sec.  648.122. Should the recreational fishing season 
be modified, non-federally permitted scup vessels abiding by state 
regulations may transit with scup harvested from state waters on board 
through the Block Island Sound Transit Area following the provisions 
outlined in Sec.  648.131.

[FR Doc. 2023-25431 Filed 11-16-23; 8:45 am]
BILLING CODE 3510-22-P