Proposed Rule2023-21738
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
Primary source
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Published
October 2, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 189 (Monday, October 2, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21738]
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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:
<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-2023-0067'' in the Search
box. Click the ``Comment'' icon, complete the required fields, and
enter or attach your comments.
<bullet> 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
<a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="https://www.fisheries.noaa.gov/action/comprehensive-acceptable-biological-catch-abc-control-rule-amendment-revisions-abc-control">https://www.fisheries.noaa.gov/action/comprehensive-acceptable-biological-catch-abc-control-rule-amendment-revisions-abc-control</a>.
FOR FURTHER INFORMATION CONTACT: Nikhil Mehta, telephone: 727-824-5305,
or email: <a href="/cdn-cgi/l/email-protection#a4cacdcfcccdc88ac9c1ccd0c5e4cacbc5c58ac3cbd2"><span class="__cf_email__" data-cfemail="36585f5d5e5f5a185b535e4257765859575718515940">[email protected]</span></a>.
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
[[Page 67723]]
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
[[Page 67724]]
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
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.