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

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 648</CFR> <DEPDOC>[Docket No. 240924-0251]</DEPDOC> <RIN>RIN 0648-BL45</RIN> <SUBJECT>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</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective January 1, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> 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: <E T="03">https://www.mafmc.org/actions/bsb-commercial-allocation.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Emily Keiley, Fishery Policy Analyst, (978) 281-9116, <E T="03">emily.keiley@noaa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> 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: <EXTRACT> 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. </EXTRACT> 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 <E T="04">Federal Register</E> on May 4, 2023 (88 FR 28456), with a comment period ending on July 3, 2023. NMFS published a proposed rule in the <E T="04">Federal Register</E> on May 15, 2023 (88 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 <E T="04">Federal Register</E> 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. <HD SOURCE="HD1">Approved Measure</HD> <HD SOURCE="HD2">Federal Commercial In-Season Closure Trigger</HD> 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. <HD SOURCE="HD1">Disapproved Measures</HD> 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: • 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; • 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; • 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 • National Standard 7, which requires fishery conservation and management measures, where practicable, to minimize costs and avoid unnecessary duplication. <HD SOURCE="HD2">Council Management of State Allocations</HD> 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. <HD SOURCE="HD2">Overages and State Payback Requirements</HD> 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. <HD SOURCE="HD2">Commercial State Allocation Formula</HD> 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. <HD SOURCE="HD1">Comments and Responses</HD> 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. <HD SOURCE="HD2">Administrative Burden</HD> ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 40k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━