Proposed Rule2023-10112
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 15, 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 (FMP). Amendment 23 proposes to establish commercial state-by-state black sea bass allocations in the Federal fishery management plan and regulations, to change the trigger for the in-season closure accountability measures, and change the state-overage payback. Amendment 23 is intended to address the allocation-related impacts of the significant changes in the distribution of black sea bass that have occurred since the original allocations were implemented.
Full Text
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<title>Federal Register, Volume 88 Issue 93 (Monday, May 15, 2023)</title>
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[Federal Register Volume 88, Number 93 (Monday, May 15, 2023)]
[Proposed Rules]
[Pages 30938-30942]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10112]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 230508-0125]
RIN 0648-BL45
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Amendment 23
to the Summer Flounder, Scup, and Black Sea Bass Fishery Management
Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Mid-Atlantic Fishery Management Council has submitted the
Black Sea Bass Commercial State Allocation Amendment (Amendment 23) to
the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan
(FMP). Amendment 23 proposes to establish commercial state-by-state
black sea bass allocations in the Federal fishery management plan and
regulations, to change the trigger for the in-season closure
accountability measures, and change the state-overage payback.
Amendment 23 is intended to address the allocation-related impacts of
the significant changes in the distribution of black sea bass that have
occurred since the original allocations were implemented.
DATES: Comments must be received by June 14, 2023.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2023-0041, by the following method:
Electronic Submission: Submit all electronic public comments via
the Federal e-Rulemaking Portal. Go to <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 personally identifying
information (e.g., name, address, etc.), confidential business
[[Page 30939]]
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
Copies of Amendment 23, including the Environmental Assessment, the
Regulatory Impact Review, and the Regulatory Flexibility Analysis (EA/
RIR/RFA) prepared in support of this action are available from Dr.
Christopher M. Moore, Executive Director, Mid-Atlantic Fishery
Management Council, Suite 201, 800 North State Street, Dover, DE 19901.
The supporting documents are also accessible via the internet at:
<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, <a href="/cdn-cgi/l/email-protection#c5a0a8aca9bcebaea0aca9a0bc85abaaa4a4eba2aab3"><span class="__cf_email__" data-cfemail="1f7a7276736631747a76737a665f71707e7e31787069">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
The Mid-Atlantic Fishery Management Council and the Atlantic States
Marine Fisheries Commission cooperatively manage the black sea bass
fishery. Amendment 23 considers changes to the management of the
commercial black sea bass fishery. Specifically, this amendment
proposes to establish the commercial black sea bass state-by-state
allocations in the Federal FMP and regulations, while also making
changes to those state allocations (previously managed only under the
Atlantic States Marine Fisheries Commission's FMP), proposes a change
to the Federal in-season closure regulations for the commercial black
sea bass fishery, and proposes a change to the provisions that apply
when a quota overage occurs to incorporate the potential for a state-
level overage. The intended purpose of the proposed state allocation
changes is to provide fair and equitable access to the commercial black
sea bass fishery among states in the management unit, taking into
consideration the historical dependence of the states on the fishery,
as well as changes in abundance and stock distribution over time. The
purpose of the change to the in-season closure trigger is to continue
to prevent commercial annual catch limit (ACL) overages while
minimizing potential negative socioeconomic impacts of Federal in-
season closures on states that have not fully harvested their
allocations.
The Council and Commission's Black Sea Bass Board initially
approved their respective amendment and addendum during a joint meeting
on February 1, 2021. However, in response to a remand from the
Commission's Policy Board, the two management bodies revisited their
previous recommendations and voted to revise the commercial state quota
allocations. This action considers the proposed changes to the Federal
FMP. The Commission's Addendum XXXIII measures are final and, while the
state allocations are not currently in the Federal FMP, they became
effective and were implemented by the Commission and the states on
January 1, 2022. The proposed regulations for this proposed rule were
deemed by the Mid-Atlantic Council to be consistent with its intent for
Amendment 23; however, under section 304(a)(3) of the (Magnuson-Stevens
Fishery Conservation and Management Act) Magnuson-Stevens Act, the
Secretary of Commerce may disapprove, or partially approve an amendment
submitted by the Council if it is determined to be inconsistent with a
provision of the Magnuson-Stevens Act or other applicable law. The
regulations proposed herein would be necessary if the Secretary
approves Amendment 23 in full. If Amendment 23 is disapproved, in whole
or in part, the relevant proposed regulations would no longer be
necessary. For a full description of the agency's considerations for
approving, disapproving, or partially approving Amendment 23, and to
provide comment on that decision, please refer to the Notice of
Availability published in the Federal Register on May 4, 2023 (88 FR
28456).
Proposed Measures
Council Management of State Allocations
This amendment considers whether the state allocations should
remain only in the Commission's Interstate FMP, or if they should be
included in both the Council's and the Commission's FMPs. The stated
purposes are: to provide fair and equitable access to the commercial
black sea bass fishery among states in the management unit, taking into
consideration the historical dependence of the states on the fishery,
as well as changes in abundance and stock distribution over time; to
allow the Council and Commission to determine which management measures
are most appropriate for joint management in both FMPs; and to help
prevent commercial ACL overages while minimizing potential negative
socioeconomic impacts of Federal in-season closures on states that have
not fully harvested their allocations. Under the Council and Board's
preferred alternative, the state allocations would be added to the
Federal FMP. If approved, this change would mean that future changes to
the allocations must be considered through a joint action of the
Council and Commission. This change would also shift an administrative
burden and the cost of monitoring state quotas and processing state
quota transfers to the Regional Office, similar to what is done for
Atlantic bluefish and summer flounder. We are specifically considering
disapproving the addition of the state allocations to the Federal FMP.
A summary of our rationale is provided in the Notice of Availability
for this action published in the Federal Register on May 4, 2023 (88 FR
28456).
Overages and State Payback Requirements
Under the Commission FMP, overages of state-specific quotas are
only required to be paid back by a state when the coastwide quota has
been exceeded. If the state allocations are included in the Federal
FMP, the Council and Board's preferred alternative is to maintain this
payback provision, and add it to the Federal FMP.
In years when the annual landings do not exceed the coastwide
quota, no state-level or coastwide paybacks would be required. If the
annual coastwide quota is exceeded, states with quota overages will be
required to pay back those overages in the following year. All black
sea bass landed for sale in a state shall be applied against that
state's annual commercial quota, regardless of where the black sea bass
were harvested. Any landings in excess of the commercial quota in any
state, inclusive of any state-to-state transfers, will be deducted from
that state's annual quota for the following year in the final rule that
establishes the annual state-by-state quotas. The overage deduction
will be based on landings for the current year through October 31, and
on landings for the previous calendar year that were not included when
the overage deduction was made in the final rule that established the
annual quota for the current year.
Commercial State Allocation Scheme
This joint action considered changes to the distribution of
commercial black sea bass quota among the states. Because the state
commercial allocations are not currently a part of the Federal FMP, the
Commission considered and implemented a new allocation formula in its
FMP. The Council is recommending we adopt the same allocation scheme in
the Federal FMP.
[[Page 30940]]
This new allocation does not specify fixed-allocation percentages,
but defines a process for calculating allocations that is partially
based on biomass distribution. The allocations would be modified
through the specifications process each time new biomass distribution
information is available. Specifically, the state allocation
percentages will be calculated using the following steps:
(1) Connecticut's baseline allocation was increased from 1 to 3
percent, and New York's baseline allocation was increased from 7 to 8
percent;
(2) Seventy-five percent of the coastwide quota is then allocated
according to the new baseline allocations (i.e., the original
allocations implemented by Amendment 13 to the Interstate FMP in 2003
as modified to account for the initial increases to Connecticut and New
York);
(3) Twenty-five percent of the quota is allocated to three regions
based on the most recent regional biomass distribution information. The
three regions are: Maine-New York, New Jersey, and Delaware-North
Carolina; and,
(4) The regional allocations are distributed among states within a
region in proportion to their baseline allocations, except Maine and
New Hampshire would each receive 1 percent of the northern region
quota.
While we are considering disapproving the inclusion of these
revised allocations in the Federal FMP due to the unnecessary increase
in administrative burden and inefficiencies, and the lack of northern
states as members of the Council as described above, we are supportive
of the revised approach that was developed by the Council and
Commission as it includes consideration of the distribution of the
black sea bass stock, and the ability to revise allocations as the
stock shifts. As noted, the Commission has already implemented this
process for the development of the 2023 commercial quotas.
Federal Commercial In-Season Closure Trigger
Currently, the Federal FMP requires a commercial coastwide in-
season closure for all federally permitted vessels and dealers,
regardless of state, once the coastwide quota is projected to be
landed. This amendment considers changing this trigger, so that the
closure would occur once landings are projected to exceed the coastwide
quota plus an additional buffer of up to 5 percent. The Council and
Board would agree to the appropriate buffer for the upcoming year
through the specifications process. The Council's Monitoring Committee
and the Commission's Technical Committee would provide advice on the
appropriate buffer based on considerations such as stock status, the
quota level, and recent fishery trends.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery
Conservation and Management Act (MSA), the Assistant Administrator has
determined that this proposed rule is consistent with the Summer
Flounder, Scup, and Black Sea Bass FMP, other provisions of the MSA,
and other applicable law, subject to further consideration after public
comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration (SBA) that this proposed rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities. The Council conducted an evaluation of the potential
socioeconomic impacts of the proposed measures (see ADDRESSES).
Entities affected by this action include fishing operations with
federal moratorium (commercial) black sea bass permits. Fishermen who
are only permitted to operate in state waters are not considered
``entities'' under the Regulatory Flexibility Act (RFA) and thus
economic impacts on these fishermen are not discussed here.
Vessel ownership data \1\ were used to identify all individuals who
own fishing vessels. Vessels were then grouped according to common
owners. The resulting groupings were then treated as entities, or
affiliates, for purposes of identifying small and large businesses
which may be regulated by this action. A total of 421 affiliates were
identified as being potentially impacted by this action because they
have a federal black sea bass moratorium permit.
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\1\ Affiliate data for 2019-2021 were provided by the NMFS
Northeast Fisheries Science Center's Social Science Branch.
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For Regulatory Flexibility Act purposes only, NMFS established a
small business size standard for businesses, including their
affiliates, whose primary industry is fishing (50 CFR 200.2). A
business primarily engaged in fishing is classified as a small business
if it is independently owned and operated, is not dominant in its field
of operation (including its affiliates), and has combined annual
receipts not in excess of $11 million for all its affiliated operations
worldwide. Of the 421 potentially impacted affiliates, 412 (98 percent)
were classified as small businesses and 9 (2 percent) were classified
as large businesses based on their average revenues during 2019-2021.
The expected impacts of the proposed action were analyzed by
employing quantitative approaches to the extent possible. Effects on
profitability associated with the preferred alternatives should be
evaluated by looking at the impact of the measures on individual
business entities' costs and revenues. However, in the absence of cost
data for the commercial black sea bass fishery, changes in gross
revenues were used as a proxy for profitability. Where quantitative
data were not available, qualitative considerations are included.
The nine potentially impacted large businesses had average total
annual revenues of around $8.35 million during 2019-2021. On average,
black sea bass accounted for 0.65 percent of total revenues, or
$54,290, for these nine large businesses. The 412 potentially impacted
small businesses had average total annual revenues of $684,390 during
2019-2021. On average, black sea bass accounted for 2 percent (or
$16,572) of the total revenues for each of these small businesses
during 2019-2021.
This action considers changes to the process used to allocate state
commercial black sea bass quota, as well as a change to the trigger for
commercial coastwide closures. The other alternatives in this proposed
rule are administrative in nature (adding the allocations and payback
provisions into the Federal FMP) and thus will not have economic
impacts on small entities. The revised allocation process will
primarily impact the distribution of landings by state; it will have a
minimal impact on total landings and total revenues. The proposed
trigger for commercial coastwide closures adds a buffer of up to 5
percent to the quota level that would require a coastwide closure. This
would have a positive impact on small entities, as it was designed to
allow more states and their respective fishermen, to fully utilize
their quota.
[[Page 30941]]
This rule will not have a significant economic impact on a
substantial number of small entities. Therefore, an initial regulatory
flexibility analysis is not required and none has been prepared.
This proposed rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: May 8, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 648 as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. Amend Sec. 648.142 as follows:
0
a. Revise paragraphs (a) introductory text and (a)(2);
0
b. Add paragraph (a)(15);
0
c. Revise paragraph (c); and
0
d. Add paragraph (f).
Sec. 648.142 Black sea bass specifications.
(a) Specifications. Commercial quota, recreational landing limit,
research set-aside, and other specification measures. The Monitoring
Committee will recommend to the MAFMC and the ASMFC, through the
specification process, for use in conjunction with the ACL and ACT,
sector-specific research set-asides, estimates of the sector-related
discards, a recreational harvest limit, a commercial quota, along with
other measures, as needed, that are projected to prevent overages of
the applicable specified limits or targets for each sector as
prescribed in the FMP. The following measures are to be considered by
the Monitoring Committee:
* * * * *
(2) An annual coastwide commercial quota and corresponding state
allocations.
* * * * *
(15) A commercial quota overage buffer, of up to 5 percent, that
would be used to determine when a Federal in-season closure would be
triggered.
* * * * *
(c) Distribution of annual commercial quota. The black sea bass
commercial quota will be allocated to the states of Maine, New
Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New
Jersey, Delaware, Maryland, Virginia, and North Carolina. Seventy-five
percent of the coastwide quota will be allocated according to the
following baseline percentage allocations: Maine (0.25) New Hampshire
(0.25); Massachusetts (12.62); Rhode Island (10.68); Connecticut
(3.00); New York (8.00); New Jersey (19.42); Delaware (5.00); Maryland
(10.68); Virginia (19.42); and North Carolina (10.68). Based on the
methodology described in the FMP, 25 percent of the quota will be
allocated to three regions based on the most recent regional biomass
distribution information. The three regions are: Maine-New York, New
Jersey, and Delaware-North Carolina. The regional allocations will be
distributed among states within a region in proportion to their
baseline allocations, except Maine and New Hampshire which each receive
1 percent of the northern region quota.
* * * * *
(f) Commercial state quota transfers. Any state implementing a
state commercial quota for black sea bass may request approval from the
Regional Administrator to transfer part or all of its annual quota to
one or more states. Transfer requests must be made by individual or
joint letter(s) signed by the principal state official with marine
fishery management responsibility and expertise, or his/her previously
named designee, for each state involved. The letter(s) must certify
that all pertinent state requirements have been met and identify the
states involved and the amount of quota to be transferred.
(1) Within 10 working days following the receipt of the letter(s)
from the states involved, the Regional Administrator shall notify the
appropriate state officials of the disposition of the request. In
evaluating requests to transfer a quota, the Regional Administrator
shall consider whether:
(i) The transfer would preclude the overall annual quota from being
fully harvested;
(ii) The transfer addresses an unforeseen variation or contingency
in the fishery; and
(iii) The transfer is consistent with the objectives of the Summer
Flounder, Scup, and Black Sea Bass FMP and Magnuson-Stevens Act.
(2) The transfer of quota will be valid only for the calendar year
for which the request was made.
(3) A state may not submit a request to transfer quota if a request
to which it is party is pending before the Regional Administrator. A
state may submit a new request when it receives notification that the
Regional Administrator has disapproved the previous request or when
notification of the approval of the transfer has been published in the
Federal Register.
0
3. In Sec. 648.143, revise paragraphs (a) introductory text and (a)(2)
to read as follows:
Sec. 648.143 Black sea bass accountability measures.
(a) Commercial sector fishery closure. The Regional Administrator
will monitor the harvest of commercial quota based on dealer reports,
state data, and other available information. All black sea bass landed
for sale in the states from North Carolina through Maine shall be
applied against the quota in the state in which it is landed, and the
commercial annual coastwide quota, regardless of where the black sea
bass were harvested. The Regional Administrator will determine the date
on which the annual coastwide quota, plus a buffer up to 5 percent as
specified in the annual specifications, is projected to be harvested;
and beginning on that date and through the end of the calendar year,
the EEZ north of 35[deg]15.3' N lat. will be closed to the possession
of black sea bass. The Regional Administrator will publish a
notification in the Federal Register advising that, upon and after that
date, no vessel may possess black sea bass in the EEZ north of
35[deg]15.3' N lat. during a closure, nor may vessels issued a
moratorium permit land black sea bass during the closure. Individual
states will have the responsibility to close their ports to commercial
landings of black sea bass during a closure, pursuant to the FMP for
the black sea bass fishery adopted by the ASMFC.
* * * * *
(2) Commercial landings overage repayment. If the annual coastwide
quota is exceeded, any landings in excess of the commercial quota in
any state, inclusive of any state-to-state transfers, will be deducted
from that state's annual quota for the following year in the final rule
that establishes the annual state-by-state quotas. All black sea bass
landed for sale in a state shall be applied against that state's annual
commercial quota, regardless of where the black sea bass were
harvested. The overage deduction will be based on landings for the
current year through October 31 and on landings for the previous
calendar year that were not included when the overage deduction was
made in the final rule that established the annual quota for the
current year. If the Regional Administrator determines during the
[[Page 30942]]
fishing year that any part of an overage deduction was based on
erroneous landings data that were in excess of actual landings for the
period concerned, he/she will restore the overage that was deducted in
error to the appropriate quota allocation. The Regional Administrator
will publish a notification in the Federal Register announcing such
restoration.
* * * * *
[FR Doc. 2023-10112 Filed 5-12-23; 8:45 am]
BILLING CODE 3510-22-P
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