Proposed Rule2023-09456
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
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Published
May 4, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
The Mid-Atlantic Fishery Management Council has submitted the Black Sea Bass Commercial State Allocation Amendment (Amendment 23) to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan to NMFS. Amendment 23 proposes to establish commercial state-by-state allocations for black sea bass in the Federal fishery management plan and regulations, change the trigger for the in-season closure accountability measures and change the state-overage payback. Amendment 23 is intended to address the allocation-related impacts of the significant changes in the distribution of black sea bass that have occurred since the original allocations were implemented.
Full Text
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<title>Federal Register, Volume 88 Issue 86 (Thursday, May 4, 2023)</title>
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[Federal Register Volume 88, Number 86 (Thursday, May 4, 2023)]
[Proposed Rules]
[Pages 28456-28458]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-09456]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
RIN 0648-BL45
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Amendment 23
to the Summer Flounder, Scup, and Black Sea Bass Fishery Management
Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Availability of proposed fishery management plan amendment;
request for comments.
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SUMMARY: The Mid-Atlantic Fishery Management Council has submitted the
Black Sea Bass Commercial State Allocation Amendment (Amendment 23) to
the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan
to NMFS. Amendment 23 proposes to establish commercial state-by-state
allocations for black sea bass in the Federal fishery management plan
and regulations, change the trigger for the in-season closure
accountability measures and change the state-overage payback. Amendment
23 is intended to address the allocation-related impacts of the
significant changes in the distribution of black sea bass that have
occurred since the original allocations were implemented.
DATES: Comments must be received by July 3, 2023.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2023-0041 by the following method:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
Copies of Amendment 23, including the Environmental Assessment, the
Regulatory Impact Review, and the Regulatory Flexibility Analysis (EA/
RIR/RFA) prepared in support of this action are available from Dr.
Christopher M. Moore, Executive Director, Mid-Atlantic Fishery
Management Council, Suite 201, 800 North State Street, Dover, DE 19901.
The supporting documents are also accessible via the internet at:
<a href="https://www.mafmc.org/actions/bsb-commercial-allocation">https://www.mafmc.org/actions/bsb-commercial-allocation</a>.
FOR FURTHER INFORMATION CONTACT: Emily Keiley, Fishery Policy Analyst,
(978) 281-9116, or <a href="/cdn-cgi/l/email-protection#cc89a1a5a0b5e287a9a5a0a9b58ca2a3adade2aba3ba"><span class="__cf_email__" data-cfemail="89cce4e0e5f0a7c2ece0e5ecf0c9e7e6e8e8a7eee6ff">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
The Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act) requires that each Regional Fishery Management
Council transmit any amendment it prepares to NMFS for review and
approval, disapproval, or partial approval. The Magnuson-Stevens Act
also requires that NMFS, upon receiving an amendment and associated
regulations deemed necessary by the Council to implement the amendment,
immediately publish notification in the Federal Register that the
amendment is available for public review and comment. The Mid-Atlantic
Council transmitted its final version of
[[Page 28457]]
Amendment 23 to the Summer Flounder, Scup, and Black Sea Bass Fishery
Management Plan (FMP) to NMFS for review on September 14, 2022. On
April 13, 2023, the Council submitted Amendment 23 proposed rule
regulations they deemed to be necessary and appropriate as specified in
section 303(c) of the Magnuson-Stevens Act.
Amendment 23 considers changes to the management of the commercial
black sea bass fishery. Specifically, this amendment proposes to
establish the commercial black sea bass state-by-state allocations in
the Federal FMP and regulations, while also making changes to those
state allocations (previously managed only under the Atlantic States
Marine Fisheries Commission's FMP), proposes a change to the Federal
in-season closure regulations for the commercial black sea bass
fishery, and proposes a change to the provisions that apply when a
quota overage occurs to incorporate the potential for a state-level
overage. The intended purpose of the proposed state allocation changes
is to provide fair and equitable access to the commercial black sea
bass fishery among states in the management unit, taking into
consideration the historical dependence of the states on the fishery,
as well as changes in abundance and stock distribution over time. The
purpose of the change to the in-season closure trigger is to continue
to prevent commercial annual catch limit (ACL) overages while
minimizing potential negative socioeconomic impacts of Federal in-
season closures on states that have not fully harvested their
allocations.
Under section 304(a)(3) of the Magnuson-Stevens Act, the Secretary
of Commerce may disapprove, or partially approve an amendment submitted
by the Council if it is determined to be inconsistent with a provision
of the Magnuson-Stevens Act or other applicable law. The sections below
describe the factors we are considering in making the decision to
approve, disapprove, or partially approve Amendment 23. The final
decision on Amendment 23 will be announced to the Mid-Atlantic Council
within 30 days of the end of the comment period for this notification
of availability.
Proposed Measures
Council Management of State Allocations
This amendment considers whether the state allocations should
remain only in the Commission's Interstate FMP, or if they should be
included in both the Council and Commission's FMPs. The stated purposes
are to provide fair and equitable access to the commercial black sea
bass fishery among states in the management unit, taking into
consideration the historical dependence of the states on the fishery,
as well as changes in abundance and stock distribution over time; to
allow the Council and Commission to determine which management measures
are most appropriate for joint management in both FMPs; and to help
prevent commercial ACL overages while minimizing potential negative
socioeconomic impacts of Federal in-season closures on states that have
not fully harvested their allocations. Under the Council's preferred
alternative, the state allocations would be added to the Federal FMP.
If approved, this change would mean that future changes to the
allocations must be considered through a joint action of the Council
and Commission. This change would also shift an administrative burden
and cost of monitoring state quotas and processing state quota
transfers to the Regional Office, similar to what is done for Atlantic
bluefish and summer flounder. We are considering disapproving the
addition of the state allocations to the Federal FMP, and specifically
invite public comment on this. A summary of our rationale is provided
below.
Adding the state allocations to the Federal FMP would unnecessarily
increase the administrative burden on, and cost to, state agencies and
NMFS, and create additional inefficiencies, with no clear direct
benefit to either the government, the resource, or the fisheries. This
is contrary to the direction of National Standard 5 to consider
efficiency in the utilization of fishery resources and National
Standard 7's direction to minimize costs and avoid unnecessary
duplication. National Standard 7 guidelines, in particular, state that
``[m]anagement measures should not impose unnecessary burdens on the
economy, on individuals, on private or public organizations, or on
Federal, state, or local governments.'' The Commission has been
successfully managing the black sea bass state commercial quotas since
their inception in 2003, while NMFS monitors commercial landings
coastwide and tracks total landings against the coastwide quotas. Under
the current Commission process, state-to-state quota transfers are
processed efficiently without the added administrative burden of the
Federal process, which, for summer flounder and bluefish, requires
significantly more time and resources and reduces flexibilities for
states, including the need to publish state quota transfers in the
Federal Register before they can be effective. In addition to the
increased administrative burden, shifting the allocations into the
Federal FMP encumbers the management process such that both the Council
and Board must agree on any future changes to the allocations.
Currently, Commission management of this stock includes members
from all states and its process will continue to allow equity in
representation when making future changes to state allocations.
Management by the Mid-Atlantic Council has representation from the
states from New York to North Carolina, but does not include membership
from the northern states, such as Connecticut, Rhode Island, and
Massachusetts, that also have a strong interest in the black sea bass
fishery. Given climate change and the northward expansion of the black
sea bass stock, this inequity in representation on the Council creates
challenges when making decisions regarding future potential allocation
changes, by providing the states with seats on the Council a
disproportionate role in the decision-making process. The absence of
northern states in the Council's membership has important implications
for addressing National Standard requirements. For example, while the
threshold decision of whether to include the state commercial quotas in
the Federal FMP is not an allocation of fishing privileges, it is not
clear how this action will provide for National Standard 4's
requirement of fair and equitable allocations and National Standard 8's
mandate to provide for the sustained participation of all fishing
communities along with minimizing adverse economic impacts on such
communities to the extent practicable. Given that black sea bass has
already become an important commercial and recreational species for
fishermen in northern states, it is important that the management body
with the authority to change state allocations is inclusive of the
states with an interest in the fishery. Continued northward expansion
of the stock is expected due to climate change, which is expected to
exacerbate the already challenging allocation deliberations of the
Council and Commission. Adding the state allocations to the Federal FMP
and thus giving the Mid-Atlantic Council jurisdiction over these state
allocations without northern states as Council members, while the
Commission does include these states, creates management challenges--
including potentially inadequate consideration of northern states'
fisheries, or even
[[Page 28458]]
different allocation decisions from each body. This could make the
management of this stock less adaptable to future changes in
distribution of both the resource and the fisheries that rely on it,
implicating concerns regarding variations and contingencies as
articulated by National Standard 6.
Commercial State Allocation Scheme
This joint action considered changes to the distribution of
commercial black sea bass quota among the states. Because the state
commercial allocations are not currently a part of the Federal FMP, the
Commission considered and implemented a new allocation formula in its
FMP. The Council is recommending we adopt the same allocation scheme in
the Federal FMP.
This new allocation does not specify fixed-allocation percentages,
but defines a process for calculating allocations that is partially
based on biomass distribution. The allocations would be modified
through the specifications process each time new biomass distribution
information is available. Specifically, the state allocation
percentages will be calculated using the following steps:
(1) Connecticut's baseline allocation was increased from 1 to 3
percent, and New York's baseline allocation was increased from 7 to 8
percent;
(2) Seventy-five percent of the coastwide quota is then allocated
according to the new baseline allocations (i.e., the original
allocations implemented by Amendment 13 to the Interstate FMP in 2003
would be modified to account for the initial increases to Connecticut
and New York);
(3) Twenty-five percent of the quota is allocated to three regions
based on the most recent regional biomass distribution information. The
three regions are: Maine-New York, New Jersey, and Delaware-North
Carolina; and,
(4) The regional allocations are distributed among states within a
region in proportion to their baseline allocations, except Maine and
New Hampshire would each receive 1 percent of the northern region
quota.
While we are considering disapproving the inclusion of these
revised allocations in the Federal FMP due to the unnecessary increase
in administrative burden and inefficiencies, and the lack of northern
states as members of the Council as described above, we are supportive
of the revised approach that was developed by the Council and
Commission as it includes consideration of the distribution of the
black sea bass stock, and the ability to revise allocations as the
stock shifts. As noted, the Commission has already implemented this
process for the development of the 2023 commercial quotas and this
process will continue to serve as the basis for state-by-state
allocations regardless of NMFS's final decision with respect to
promulgating the proposed state allocations in Federal regulations.
Federal Commercial In-Season Closure Trigger
Currently, the Federal FMP requires a commercial coastwide in-
season closure for all federally permitted vessels and dealers,
regardless of state, once the coastwide quota is projected to be
landed. This amendment considers changing this trigger, so that the
closure would occur once landings are projected to exceed the coastwide
quota plus an additional buffer of up to 5 percent. The Council and
Board would agree to the appropriate buffer for the upcoming year
through the specifications process. The Council's Monitoring Committee
and the Commission's Technical Committee would provide advice on the
appropriate buffer based on considerations such as stock status, the
quota level, and recent fishery trends. We are proposing to approve
this change to the in-season closure trigger.
Overages and State Payback Requirements
Under the Commission FMP, overages of state-specific quotas are
only required to be paid back by a state when the coastwide quota has
been exceeded. If the state allocations are included in the Federal FMP
the Council and Board's preferred alternative is to maintain this
payback provision. In years when the annual landings do not exceed the
coastwide quota, no state-level or coastwide paybacks would be
required. If the annual coastwide quota is exceeded, states with quota
overages will be required to pay back those overages in the following
year. All black sea bass landed for sale in a state shall be applied
against that state's annual commercial quota, regardless of where the
black sea bass were harvested. Any landings in excess of the commercial
quota in any state, inclusive of any state-to-state transfers, will be
deducted from that state's annual quota for the following year in the
final rule that establishes the annual state-by-state quotas. The
overage deduction will be based on landings for the current year
through October 31, and on landings for the previous calendar year that
were not included when the overage deduction was made in the final rule
that established the annual quota for the current year. Should NMFS
disapprove establishing the state-by-state allocation in Federal
regulations, as explained above, this provision would also be
disapproved as moot in the Federal FMP, though it would continue to
apply through the Commission process.
Public Comment Instructions
The Magnuson-Stevens Fishery Conservation and Management Act
authorizes the Secretary of Commerce to approve, partially approve, or
disapprove measures recommended by the Council in an amendment based on
whether the measures are consistent with the fishery management plan,
plan amendment, the Magnuson-Stevens Act and its National Standards,
and other applicable law. As such, we are seeking comment on whether
measures in Amendment 23 are consistent with the Summer Flounder, Scup,
and Black Sea Bass FMP, the Magnuson-Stevens Act and its National
Standards, and other applicable law. Public comments on this amendment
and its incorporated documents may be submitted through the end of the
comment period stated in this notification of availability.
A proposed rule to implement the amendment, including draft
regulatory text, will also be published in the Federal Register for
public comment. Public comments on the proposed rule received before
the end of the comment period provided in this notification of
availability will be considered in the approval/disapproval decision on
the amendment. All comments received by July 3, 2023, whether
specifically directed to Amendment 23 or the proposed rule for this
amendment, will be considered in the approval/disapproval decision on
the Commercial State Allocation Amendment. Comments received after that
date will not be considered in the decision to approve or disapprove
the amendment. To be considered, comments must be received by close of
business on the last day of the comment period.
Authority: 16 U.S.C. 1801 et seq.
Dated: April 28, 2023.
Jennifer M. Wallace,
Acting Director, Office of Sustainable Fisheries, National Marine
Fisheries Service.
[FR Doc. 2023-09456 Filed 5-3-23; 8:45 am]
BILLING CODE 3510-22-P
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