Rule2024-22233
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
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 1, 2024
Effective
January 1, 2025
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
This action implements the approved trigger for the in-season closure accountability measure contained in Amendment 23 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. Amendment 23 was developed by the Mid-Atlantic Fishery Management Council in conjunction with the Atlantic States Marine Fisheries Commission 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. This rule implements a measure that allows a buffer before triggering a closure to the coastwide commercial fishery to address negative economic impacts of coastwide closures on states that have not fully harvested their commercial black sea bass state allocations.
Full Text
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<title>Federal Register, Volume 89 Issue 190 (Tuesday, October 1, 2024)</title>
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[Federal Register Volume 89, Number 190 (Tuesday, October 1, 2024)]
[Rules and Regulations]
[Pages 79778-79783]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22233]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 240924-0251]
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: Final rule.
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SUMMARY: This action implements the approved trigger for the in-season
closure accountability measure contained in Amendment 23 to the Summer
Flounder, Scup, and Black Sea Bass Fishery Management Plan. Amendment
23 was developed by the Mid-Atlantic Fishery Management Council in
conjunction with the Atlantic States Marine Fisheries Commission 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. This rule implements a measure
that allows a buffer before triggering a closure to the coastwide
commercial fishery to address negative economic impacts of coastwide
closures on states that have not fully harvested their commercial black
sea bass state allocations.
DATES: Effective January 1, 2025.
ADDRESSES: Copies of Amendment 23, including the Environmental
Assessment, the Regulatory Impact Review, and the Regulatory
Flexibility Analysis 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#4f2a2226233661242a26232a360f21202e2e61282039"><span class="__cf_email__" data-cfemail="86e3ebefeaffa8ede3efeae3ffc6e8e9e7e7a8e1e9f0">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
The Mid-Atlantic Fishery Management Council (Council) and the
Atlantic States Marine Fisheries Commission (Commission) cooperatively
manage the black sea bass fishery. Amendment 23 considered changes to
the management of the commercial black sea bass fishery. Specifically,
Amendment 23 considered:
1. Adjusting the commercial black sea bass state allocations;
2. Adding the state allocations and payback provisions to the
Federal fishery management plan (FMP) and regulations; and,
3. Changes to the Federal in-season closure regulations for
black sea bass.
The Council and the Commission's Black Sea Bass Board (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. A notice of availability (NOA) for the amendment was
published in the Federal Register on May 4, 2023 (88 FR 28456), with a
comment period ending on July 3, 2023. NMFS published a proposed rule
in the Federal Register on May 15, 2023 (88
[[Page 79779]]
FR 30938), with a comment period ending on June 14, 2023.
When a Council approves and then transmits an FMP or amendment to
NMFS, NMFS publishes an NOA in the Federal Register announcing a 60-day
comment period. Within 30 days of the end of the comment period, NMFS
must approve, disapprove, or partially approve the plan or amendment
based on consistency with law. After considering public comment on the
NOA and proposed rule, NMFS partially approved Amendment 23 on August
2, 2023. This final rule implements the approved management measure in
Amendment 23 regarding the in-season closure trigger. The details of
the development of the measures in Amendment 23 were described in the
NOA and proposed rule, and are not repeated here.
Approved Measure
Federal Commercial In-Season Closure Trigger
Previously, the Federal FMP required a commercial coastwide in-
season closure for all federally permitted vessels and dealers,
regardless of state, once the coastwide quota was projected to be
landed. This amendment changes the trigger so that the closure will
occur once landings are projected to exceed the coastwide quota plus an
additional buffer of up to 5 percent. The Council and Board will agree
to the appropriate buffer and make a recommendation to NMFS 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.
This change is being implemented to help minimize the negative
economic impacts of coastwide closures on states that have not fully
harvested their allocations. It is not expected to create an incentive
for quota overages because the Commission's Interstate FMP would still
require states to close when their state-specific quotas are reached
and to pay back quota overages.
Disapproved Measures
Our review of Amendment 23 concluded that the record supporting the
Council's recommendations did not support a decision to approve
incorporating the state-by-state allocations into the Federal FMP and
regulations. By virtue of their reliance on the state allocations, the
proposed state payback provisions and the state allocation formula were
also disapproved. Specifically, NMFS concluded that the disapproved
provisions of Amendment 23 are not consistent with:
<bullet> National Standard 4, which requires fishery conservation
and management measures to avoid discrimination between residents of
different states and to allocate or assign fishing privileges among
various United States fishermen in a manner that is fair and equitable
to all such fishermen, reasonably calculated to promote conservation,
and carried out in such manner that no particular individual,
corporation, or other entity acquires an excessive share of such
privileges;
<bullet> National Standard 5, which requires that fishery
conservation and management measures, where practicable, consider
efficiency in the utilization of fishery resources and not have
economic allocations as their sole purpose;
<bullet> National Standard 6, which requires fishery conservation
and management measures to take into account and allow for variations
among, and contingencies in, fisheries, fishery resources, and catches;
and
<bullet> National Standard 7, which requires fishery conservation
and management measures, where practicable, to minimize costs and avoid
unnecessary duplication.
Council Management of State Allocations
Amendment 23 proposed adding the commercial fishery state-by-state
quota allocations to the Federal FMP and regulations. This change would
have increased the administrative burden and cost of monitoring state
quotas and processing state quota transfers for NMFS and the states,
without providing a conservation benefit. Adding the allocations to the
Federal FMP would have also required a joint action of the Council and
Commission to make changes to the state-by-state allocations in the
future.
Overages and State Payback Requirements
Under the Commission's Interstate FMP, overages of state-specific
quotas are required to be paid back by a state when the coastwide quota
has been exceeded. If the state allocations were included in the
Federal FMP, the Council and Black Sea Bass Board's preferred
alternative was to implement this payback provision in the Federal
regulations. NMFS disapproved the incorporation of the state payback
provision in the Federal FMP, as it is not necessary given our
disapproval of incorporating the state allocations in the Federal FMP.
However, the Commission's use of this payback process is not affected
by our decision with regard to the Federal FMP.
Commercial State Allocation Formula
This joint action considered changes to the allocation formula for
the distribution of commercial black sea bass quota among the states.
The Commission adopted and implemented a new allocation formula in its
Interstate FMP, and the Council recommended that NMFS approve and
implement the same allocation approach in the Federal FMP. Because NMFS
disapproved the state-by-state allocations as a measure in the Federal
FMP and regulations, it is not necessary to incorporate an allocation
formula in the Federal FMP, so it was also disapproved.
Comments and Responses
NMFS received 14 comments in response to the NOA and the proposed
rule. Seven individuals submitted comments that were not germane to the
alternatives in the proposed rule; their comments focused on state
management measures, individual state allocations, the effects of
offshore wind farms, and quotas. One individual commercial fisherman
generally opposed the proposed amendment as making things more
complicated and worse for fishermen. The comments relevant to the
proposed action focused on five general topics regarding the addition
of the state commercial allocations to the Federal FMP: The burden on
NMFS and the affected state fishery management agencies; the perceived
benefits of the action; the National Standards of the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act);
encumbering the process to adjust allocations; and state representation
issues, including addressing climate change.
Administrative Burden
Comment 1: Three commenters suggested that the administrative
burden of adding the state allocations would be minor or would be
mitigated by using processes developed for other fisheries. One
commenter also suggested that this shift would reduce the burden on the
Commission to manage state quotas.
Response: While NMFS does manage some species' commercial quotas
(e.g., summer flounder) at a state level, adding black sea bass state
quota management would require additional resources (time and staff) to
conduct all of the necessary tasks. Adding the state commercial
allocations in the Federal FMP would require NMFS to monitor
[[Page 79780]]
the landings of commercial quotas at a state-by-state level--as opposed
to overall coastwide landings--throughout the season, implement state
closures when triggered, and manage all quota transfers between states.
The increased workload on NMFS staff would reduce agency capacity for
other priorities.
This change would also reduce efficiency by requiring the states to
request transfers from NMFS in addition to the Commission and wait for
NMFS's approval before the transfers are effective. This is not merely
a shift in administrative burden. Rather, it increases the
administrative burden for both NMFS and the states without eliminating
the administrative burden for the Commission. The Commission is
unlikely to end its practice of monitoring transfers and posting them
on its website, so states would continue to bear the burden of the
Commission's state management processes, along with the added
requirement to submit transfer requests to NMFS. Comments from the
Massachusetts Division of Marine Fisheries (MADMF) and the Rhode Island
Department of Environmental Management (RIDEM) also noted these
concerns (see Comment 2).
Comment 2: Comments from RIDEM and MADMF stated that including the
state commercial black sea bass allocation in the Federal FMP would
increase the administrative burden for NMFS and create additional
complications for the states. MADMF noted that state and Federal
closures for species such as bluefish and summer flounder have not
always aligned. MADMF states that ``. . . Landings data and projections
often differ between state and Federal monitoring, as does the time
requirement for [MADMF] and NMFS to close a fishery. [MADMF's] frequent
and direct outreach to dealers as quotas near full utilization
generally allows for more accurate landings tallies and projections,
which [MADMF] can respond to nimbly. [MADMF's] ability to close a
fishery within 24 hours is not matched by NMFS.'' These differences can
result in different closure dates and different impacts to state and
Federal permit holders.
Response: NMFS agrees with these comments and has disapproved the
addition of the commercial state black sea bass allocations to the
Federal FMP.
Comment 3: One commenter highlighted that the restrictions on late-
season transfers due to the Federal rulemaking process would have
minimal impacts and would not justify disapproving the addition of the
state allocations to the Federal FMP.
Response: The Commission currently allows transfers at any time up
to 45 days after the last day of the fishing season. If NMFS were to
manage transfers under the same process currently used for summer
flounder and bluefish, transfers in the last 2 weeks of the year would
only be allowed for unforeseeable circumstances such as vessel failure
or bad weather. Post-season transfers would not be allowed. NMFS does
not disagree that the impact of this particular restriction would be
relatively small. However, the magnitude of this potential impact does
not change our determination that adding the state allocations to the
Federal FMP is inconsistent with the National Standards (see
Disapproved Measures). This decision was based on a holistic review of
the amendment and its consistency with the Magnuson-Stevens Act. It did
not hinge on the impact of post-season transfer limitations.
Perceived Benefits
Comment 4: Four commenters disagreed with our statement that there
is no clear benefit from adding the state allocations to the Federal
FMP, arguing that this change provides a greater level of Federal
oversight, protection, and accountability. They stated that any changes
to the allocations would be made through the Council process, which is
thorough, transparent, and bound by the Magnuson-Stevens Act, National
Environmental Policy Act (NEPA), and other applicable laws. According
to these comments, the Commission process does not always provide the
same safeguards.
Response: The Council and Commission have successfully co-managed
black sea bass quotas through a two-tiered system since 2003, with the
state quotas managed through the Commission's Interstate FMP and the
overall coastwide quota managed by the Council and NMFS. While the
Interstate FMP is not bound by the Magnuson-Stevens Act and the Federal
rulemaking process, the Commission process is not without its own legal
requirements and safeguards. The Atlantic Coastal Fisheries Cooperative
Management Act (Atlantic Coastal Act) requires the Commission to manage
fisheries throughout their range based on the best available science
and with adequate opportunity for public participation and to establish
adequate standards and procedures to do so. In compliance with the
Atlantic Coastal Act, the Commission process is bound by the ``Atlantic
States Marine Fisheries Commission Compact and Rules and Regulations''
and ``Interstate Fishery Management Program Charter.'' Under the
Charter, the Commission's management must meet conservation and equity
requirements. When states believe a Commission decision has not met
these requirements, the Commission provides a formal appeals process.
Further, the Council manages the Federal black sea bass fishery
with all of the safeguards and requirements of the Magnuson-Stevens
Act, NEPA, and other applicable laws. This includes oversight of the
various catch limits designed to prevent overfishing, which are
established through a joint process with the Commission. The coastwide
commercial quota addresses the conservation requirements of the
Magnuson-Stevens Act, and when state quota overages could result in a
coastwide overage, NMFS has the authority to close the entire fishery
to prevent overfishing. Duplication of the state commercial allocations
in the Federal FMP will not further any conservation benefit because
the allocations are already in place and successfully managed through
the Interstate FMP and the Federal regulations and specifications
process are sufficient to address coastwide overages.
Comment 5: One commenter argued, ``If this management plan remained
within the [Commission], there would be no ability for any New York
commercial fisherman to contest any portion of it by judicial review,
because it is not considered an agency of the Federal government.'' The
commenter believed including the state commercial allocations in the
Federal FMP would allow better redress.
Response: While the Commission is not a Federal agency, it provides
a venue for deciding issues of interstate fishery management with equal
representation of all interested states. As noted in response to
Comment 4, the Commission is guided by the ``Atlantic States Marine
Fisheries Commission Compact and Rules and Regulations'' and
``Interstate Fishery Management Program Charter.'' States can appeal
Commission decisions through a formal appeals process when the decision
is inconsistent with the rules and regulations, the Charter, the
Commission's other guiding documents, or the goals and objectives of
the Interstate FMP; is based on insufficient technical information; or
results in unforeseen impacts. The appeals process may result in
corrective action, providing a process for redress for Commission
decisions. The efficacy of this appeals process is demonstrated by New
York's successful appeal of the
[[Page 79781]]
Commission's changes to the black sea bass state allocations, which
resulted in an increase to New York's proportion of the black sea bass
commercial quota. In addition, interested parties still have the option
to contest Federal management measures developed through the joint
management process described in response to Comment 4 pursuant to the
Magnuson-Stevens Act's judicial review provisions.
Comment 6: One commenter stated that adding the state commercial
allocations to the Federal FMP would provide the benefit of bringing
the allocations in line with ``most other aspects of the management
program.''
Response: The Council and the Commission have successfully co-
managed the black sea bass fishery for decades, as described in
response to Comment 4.
Most aspects of the management program have implications for the
coastwide fishery and are addressed in the Federal FMP. However,
subdividing the coastwide commercial quota into state-specific
allocations directly affects fishing opportunities at the state level
and is an issue of interstate fishery management. The Commission
provides a venue for interstate management decision-making with
representation from all of the Atlantic states. States may join the
management boards for any species in which they have an interest.
Conversely, the Magnuson-Stevens Act determines state representation on
the Council. As a result, the limited representation on the Council
poses a challenge when making allocation decisions that directly affect
the states. Continued changes in the stock distribution toward states
that are not represented on the Council would exacerbate these
challenges. Adding the allocations to the Federal FMP to make them
consistent with other co-managed elements of the FMP would fail to
recognize the unique, state-oriented nature of allocation decisions and
the Commission's lead role in interstate fisheries management and would
not further any conservation objective.
Future Allocation Decisions and the National Standard Requirements
Comment 7: Two commenters contended that the NOA speculates ``about
future actions involving `potentially inadequate consideration of
northern states' fisheries' '' without evidence in the administrative
record to support such speculation, particularly ``without providing
any examples of actual present-day outcomes harming any particular
state.'' These commenters go on to note that future allocations would
need to meet the requirements of the Magnuson-Stevens Act, including
the requirement under National Standards 4 and 6 (described under
Disapproved Measures) and National Standard 8--that measures provide
for the sustained participation of all fishing communities. The second
of these commenters argued that the current commercial state
allocations were agreed on by the Council and Board and reflect recent
biomass proportions. The commenter did not understand how the same
decision-making process could potentially result in unfair outcomes in
the future because the Council and Board work together to achieve
consensus on joint actions and differing decisions between the two
bodies are rare.
Response: The commenters are correct that NMFS cannot approve any
changes to the Federal FMP that do not meet the requirements of the
National Standards. While NMFS has concerns that adding the state
allocations to the Federal FMP would result in an inequitable
allocation process because not all interested states are represented on
the Council, NMFS did not disapprove the changes based on future
decisions being inconsistent with the National Standards. NMFS
disapproved the addition of the state allocations in the Federal FMP
because that action lacked conservation benefits, reduced management
efficiency, lacked adaptability to variations and contingencies,
increased costs, and unnecessarily duplicated management measures,
which is inconsistent with National Standards 4, 5, 6, and 7.
State Representation, Fairness, and Equity
Comment 8: MADMF agreed with NMFS that equity of representation is
vitally important to the particular issue of state-by-state
allocations. Its comment provided additional context and an example of
how the vote to add the state allocations to the Federal FMP resulted
in unequal representation among the states. After an initial motion was
made and seconded by participants of both the Council and Board, a
substitute motion not to add the state allocations to the Federal FMP
was made and seconded by northern-state and NMFS representatives. The
Council voted first, and the majority of Council members voted against
the substitute motion. Without the Commission membership from New
Hampshire through North Carolina being able to affirm their position,
the substitute motion failed. The main motion received a passing vote
from the Commission on a slim margin after the substitute motion failed
in the Council vote and another option was not available. The Council
and Commission voted along a geographical divide, with the northern
states voting against the allocations in the Federal FMP. This
illustrates that the limited representation on the Council by all
states with an interest in the fishery poses a challenge when making
state allocation decisions.
The Commission includes representation from all Atlantic states and
provides an equitable process when making changes to commercial state
allocations. MADMF asserted that the Commission, where every coastal
state with an interest in a species is represented, is the more
appropriate venue for determining state allocations.
Response: NMFS agrees that limited representation by all states in
the Council poses a challenge in state allocation decisions and that
the Commission, which includes representations from all Atlantic
states, provides a more equitable process in commercial state
allocations.
Comment 9: Two commenters asserted that the joint decision-making
process is fair and equitable and that the states on the Council do not
have a disproportionate role in the decision-making process. The
commenters disagreed with the assertion that the lack of voting
representation from the New England states on the Council creates
``inequity in representation'' in the joint decision-making process.
These commenters believed that the special voting procedures and the
broader representation on the Board make up for the lack of northern
states' representation on the Council.
Response: A different comment letter from MADMF disputed these
comments, as summarized in Comment 8. As one of the states in question
and with authority on the matter, MADMF argued that the special voting
procedures are not equivalent to full representation and that adding
the state allocations to the Federal FMP would not result in an
equitable allocation process. NMFS agrees with MADMF.
Comment 10: One commenter argued against concerns that the northern
states' lack of representation on the Council has implications
regarding the National Standard requirements and equity, stating that
the Mid-Atlantic states lack representation on the New England Fishery
Management Council and are regulated on groundfish, whiting, and
scallops without representation. The commenter asserted that joint
decision-making between the Council and the Commission, which
represents all coastal states, has worked for other fisheries.
[[Page 79782]]
Response: NMFS agrees that co-management works here--the Council
and the Commission successfully co-manage the black sea bass fishery.
As previously described, the Council and Commission specifications
processes establish annual coastwide catch limits and the Commission
manages the commercial state allocations through the Interstate FMP
because the state allocations have a direct impact on fishing
opportunities at the state level. This co-management process provides
equitable representation and greater flexibility because it does not
require Council action in addition to Commission action to change the
state allocations. This is particularly relevant in the black sea bass
fishery, as it is foreseeable that black sea bass could become a
commercially viable species as far north as Maine due to the ongoing
and expected changes in the distribution of the black sea bass stock
from the effects of climate change. The successful management of other
species using different processes does not negate these facts nor the
history of successful co-management of the black sea bass fishery.
Furthermore, the fisheries referenced in the comment--groundfish,
whiting, and scallops--are not managed with state-by-state quota
allocations, but with a coastwide quota. This is consistent with the
Federal management of the black sea bass fishery.
Comment 11: Three commenters argued that the Council should have a
more substantive role in the allocation-setting process because the
majority of commercial black sea bass landings come from Federal
waters.
Response: The Council plays a significant role in black sea bass
management, with coastwide management measures set in the Federal FMP
through the Council process, as previously described. State quota
allocations have a direct impact on fishing opportunities at the state
level. Given the lack of northern state representation on the Council,
the commercial quota state allocations are appropriately managed
through the Commission's Interstate FMP. While adding the state
allocations to the Federal FMP would not eliminate the Commission's
role in the process, a comment letter from MADMF provides evidence that
the special voting procedures used during joint decision-making do not
necessarily result in equal representation of all states with
commercial quota allocations, as described in Comment 8.
In addition, adding the state commercial quota allocations to the
Federal FMP would then require NMFS to manage the state allocations,
which would increase costs, reduce efficiency, and add complexity, as
described throughout the comments and responses. The Commission's equal
representation of all impacted states and the increased efficiency,
timeliness, and reduced administrative burden for in-season monitoring
activities support maintaining the Commission's primary role in this
aspect of black sea bass management, with the Council maintaining the
lead role in coastwide management.
Climate Impacts
Comment 12: One commenter contended that climate concerns are not
unique to the black sea bass fishery and the Council manages other
fisheries with changing distributions and geographic ranges beyond its
member states. It noted that the Council is required to manage stocks
as a unit throughout their range to the extent practicable under
National Standard 3. The commenter was not aware of any provision under
the Magnuson-Stevens Act or other applicable laws that would preclude
the incorporation of state allocations in the Council FMP.
Response: While climate impacts are a concern for a number of
fisheries, this action considers the management of black sea bass.
Under the requirements of National Standard 3, the Council is required
to manage the black sea bass stock as a unit throughout its range and
does so when it sets coastwide management measures under the Federal
FMP. These coastwide limits, including the commercial quota, satisfy
the requirements of National Standard 3. However, inconsistencies with
the requirements under National Standards 4, 5, 6, and 7 do preclude
the addition of the state allocations to the Federal FMP. These
inconsistencies are described under Disapproved Measures and throughout
the comments and responses in this document.
Comment 13: One commenter claimed that formalizing the Council's
role in the state commercial allocation-setting process would increase
the Council's adaptive capacity and ability to respond to changes in
the black sea bass fishery efficiently, thus supporting the goal of
building resilient, climate-ready fisheries.
Response: Amendment 23 does not identify how duplicating the state
commercial allocations in the Federal FMP and regulations and requiring
the Council and Federal rulemaking processes to change the state
commercial allocations would increase adaptive capacity, efficiency, or
responsiveness in black sea bass management. According to the National
Standard Guidelines at Sec. 600.335(d), unpredictable events, such as
unexpected climatic conditions or resource surges or failures, are best
handled by establishing a flexible management regime that contains a
range of management options through which it is possible to act quickly
without amending the FMP or even its regulations. The current system of
managing state commercial allocations through the Commission's
Interstate FMP provides an efficient, responsive, and equitable process
that does not require amending the FMP or regulations.
Continued changes in the stock distribution would exacerbate the
already challenging allocation deliberations of the Council if the
state allocations were added to the Federal FMP. Rapid changes and
increased uncertainties in stock distribution, particularly in response
to the effects of climate change, highlight the need for a flexible and
responsive management system. Because the proposed measure to
incorporate state-by-state quota allocations into the Federal FMP and
regulations would create a less flexible and less responsive management
system than the status quo, NMFS finds this aspect of Amendment 23 to
be inconsistent with National Standard 6.
Comment 14: Three commenters agreed with NMFS that climate change
and the shifting distribution of the stock exacerbate concerns
regarding unequal representation. MADMF stated that every state with an
interest in a species is represented on the Commission and moving the
state commercial allocation to the Council FMP would uproot ``the
northern states' equal footing inherent'' in the Commission process. It
went on to say, ``The mid-Atlantic states feel no similar repercussions
from maintaining the allocations solely in the interstate plan; they
are well represented by their delegates to the [Commission]. As the
Council letter points out, this is the first time the allocations have
been revised in the [Commission] plan since their original
implementation in 2003, demonstrating that the [Commission] member
states do not take the matter lightly. While distinct, the [Commission]
processes are equally transparent, robust, and deliberative as the
Council's.''
MADMF also noted that regional climate change scenario planning
efforts, supported by the Council, have included consideration of more
joint management and greater flexibility as stocks shift. Another
commenter echoed MADMF's concerns regarding equity and adaptability in
the face of shifting
[[Page 79783]]
stocks and suggested that the allocations should be managed solely by
the Commission or jointly by the Mid-Atlantic and New England Councils.
Response: NMFS agrees that the Commission should retain management
of the state commercial allocations to ensure an equitable process and
have disapproved the addition of the commercial state black sea bass
allocations into the Federal FMP.
General Comments
Comment 15: MADMF fully supported NMFS' rationale, as provided in
88 FR 28456 (May 4, 2023), for disapproving the addition of the
commercial black sea bass state allocations into the Federal FMP.
Response: NMFS agrees and has disapproved the addition of the
commercial state black sea bass allocations into the Federal FMP.
Comment 16: One commenter stated that NMFS' proposal will
complicate things for fishermen and black sea bass issues should have
been addressed two decades ago.
Response: NMFS agrees that duplicating the state allocations in the
Federal FMP would create a more complicated process for black sea bass
fishermen and have disapproved this measure.
Changes From the Proposed Rule
The proposed rule included all of the Council's recommended changes
to the FMP and proposed implementing regulations deemed necessary by
the Council. As described above, NMFS has determined that the
adjustment to the process for setting the state allocations and the
addition of the state allocations and payback provisions to the
Council's (Federal) FMP were inconsistent with the National Standards
and disapproved those measures. The final rule only implements the
proposed change to the commercial in-season closure trigger, and
removes the disapproved measures that were in the proposed rule's
regulatory text.
Classification
Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined that this final rule is
consistent with the Summer Flounder, Scup, and Black Sea Bass FMP,
other provisions of the Magnuson-Stevens Act, and other applicable law.
This final 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 during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a regulatory flexibility
analysis was not required and none was prepared.
This final 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: September 24, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 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. In Sec. 648.142, revise paragraph (a) introductory text and add
paragraph (a)(15) to read as follows:
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:
* * * * *
(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.
* * * * *
0
3. In Sec. 648.143, revise paragraph (a) introductory text 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 by a vessel
with a moratorium permit issued under Sec. 648.4(a)(7) shall be
applied against the commercial annual coastwide quota, regardless of
where the black sea bass were harvested. All black sea bass harvested
north of 35[deg]15.3' N. lat., and landed for sale in the states from
North Carolina through Maine by any vessel without a moratorium permit
and fishing exclusively in state waters, will be counted against the
quota by the state in which it is landed, pursuant to the FMP for the
black sea bass fishery adopted by the ASMFC. 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.
* * * * *
[FR Doc. 2024-22233 Filed 9-30-24; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on October 1, 2024.
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