Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations 80661 

Issued in Washington, DC. 

Quintin C. Kendall, 

Deputy Administrator, Federal Railroad 

Administration. 

[FR Doc. 2020–26064 Filed 12–11–20; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No.: 201207–0328] 

RIN 0648–BJ18 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; 

Amendment 21 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. 

SUMMARY: This action implements 

approved measures for the Mid-Atlantic 

Fishery Management Council’s 

Amendment 21 to the Summer 

Flounder, Scup, and Black Sea Bass 

Fishery Management Plan. This rule 

changes the summer flounder 

commercial state quota allocation 

system and fishery management plan 

goals and objectives. This action is 

intended to increase equity in state 

allocations when annual coastwide 

commercial quotas are at or above 

historical averages, while recognizing 

the economic reliance coastal 

communities have on the state 

allocation percentages currently in 

place. 

DATES: Effective January 1, 2021. 

ADDRESSES: Copies of Amendment 21, 

including the Environmental Impact 

Statement, the Regulatory Impact 

Review, and the Initial Regulatory 

Flexibility Analysis (EIS/RIR/IRFA) 

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: http://

www.mafmc.org. 

A copy of the Record of Decision 

(ROD) for the Final EIS (FEIS) can be 

obtained from the NOAA Fisheries 

Greater Atlantic Regional Fisheries 

Office, 55 Great Republic Drive, 

Gloucester, MA 01930. 

FOR FURTHER INFORMATION CONTACT: 

Emily Keiley, Fishery Policy Analyst, 

(978) 281–9116. 

SUPPLEMENTARY INFORMATION: 

Background 

The Mid-Atlantic Fishery 

Management Council and the Atlantic 

States Marine Fisheries Commission 

cooperatively manage summer flounder 

under the provisions of the Summer 

Flounder, Scup, and Black Sea Bass 

Fishery Management Plan (FMP). The 

joint FMP became effective in 1988, 

establishing measures to manage 

summer flounder fisheries. Summer 

flounder is an important commercial 

and recreational species. Currently, 60 

percent of the total allowable landings 

limit (TAL) is allocated to the 

commercial fishery (coastwide annual 

commercial quota), with the remaining 

40 percent allocated to the recreational 

fishery. Available quotas are fully 

utilized by both sectors in most fishing 

years. The coastwide annual 

commercial quota is allocated to each of 

the states in the management unit 

(Maine-North Carolina) on a percentage 

basis. The existing commercial state-bystate allocations were last modified in 

1993. 

Amendment 21 was approved by the 

Council and Commission in March 

2019. A notice of availability (NOA) for 

the amendment published in the 

Federal Register on July 29, 2020 (85 FR 

45571), with a comment period ending 

on September 28, 2020. We published a 

proposed rule in the Federal Register on 

August 12, 2020 (85 FR 48660), with a 

comment period ending on September 

11, 2020. 

The Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) allows us to 

approve, partially approve, or 

disapprove measures recommended by 

the Council in an amendment based on 

whether the measures are consistent 

with the fishery management plan, plan 

amendment, the Magnuson-Stevens Act 

and its National Standards, and other 

applicable law. After considering public 

comment on the NOA and proposed 

rule, we approved Amendment 21 on 

October 19, 2020. This rule implements 

the management measures in 

Amendment 21. The details of the 

development of the measures in 

Amendment 21 were described in the 

NOA and proposed rule, and are not 

repeated here. 

Approved Measures 

State Commercial Allocations 

Amendment 21 changes the state-bystate commercial quota allocations for 

summer flounder when the coastwide 

quota exceeds 9.55 million lb (4,332 

mt). When the coastwide quota is 9.55 

million lb (4,332 mt) or less, the quota 

will be distributed according to the 

current allocation percentages. In years 

when the coastwide quota exceeds 9.55 

million lb (4,332 mt), any additional 

quota, beyond this threshold, will be 

distributed in equal shares to all states 

except Maine, Delaware, and New 

Hampshire, which would split 1 percent 

of the additional quota. The Council and 

Board selected this allocation 

alternative to balance preservation of 

historical state access and infrastructure 

at recent quota levels, while providing 

equitability among states when the stock 

and quota are at high levels. 

TABLE 1—APPROVED STATE-BY-STATE

SUMMER FLOUNDER QUOTA ALLOCATIONS

State 

Allocation 

of baseline 

quota 

≤9.55 mil lb 

(4,332 

metric tons) 

(percent) 

Allocation 

of additional 

quota beyond 

9.55 mil lb 

(4,332 

metric tons) 

(percent) 

ME ............ 0.04756 0.333 

NH ............. 0.00046 0.333 

MA ............ 6.82046 12.375 

RI .............. 15.68298 12.375 

CT ............. 2.25708 12.375 

NY ............. 7.64699 12.375 

NJ ............. 16.72499 12.375 

DE ............. 0.01779 0.333 

MD ............ 2.03910 12.375 

VA ............. 21.31676 12.375 

NC ............. 27.44584 12.375 

Total ... 100 100 

Concurrent to this action we are 

considering changes to the 2021 

specifications for summer flounder, 

scup, and black sea bass (85 FR 73253; 

November 17, 2020). If the revised 2021 

summer flounder acceptable biological 

catch and corresponding specifications 

are approved, state allocations of 

summer flounder would be initially 

distributed as shown in Table 2. Final 

2021 allocations, which will take into 

account any 2019 or 2020 overages 

through October 31, 2020, will be 

provided in the final rule establishing 

the 2021 specifications. 


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80662 Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations 

TABLE 2—INITIAL 2021 SUMMER

FLOUNDER STATE-BY-STATE QUOTAS

State 

Initial 2021 

quotas * 

amendment 21 

allocations 

(lb) 

Initial 2021 

quotas * 

amendment 21 

allocations 

(mt) 

ME ............ 14,342 6.51 

NH ............. 9,844 4.47 

MA ............ 1,015,179 460.48 

RI .............. 1,861,550 844.38 

CT ............. 579,376 262.80 

NY ............. 1,094,113 496.28 

NJ ............. 1,961,062 889.52 

DE ............. 11,499 5.22 

MD ............ 558,559 253.36 

VA ............. 2,399,576 1,088.43 

NC ............. 2,984,903 1,353.93 

Total ... 12,490,000 5,665.37 

* Initial quotas do not account for any previous overages. 

Revised Summer Flounder FMP Goals 

and Objectives 

The original FMP objectives were 

adopted via Amendment 2 to the 

Summer Flounder FMP in 1993 and 

have remained unchanged since that 

time. Amendment 21 revises the FMP 

goals and objectives. The FMP 

previously contained only management 

objectives, while the revision contains 

three overarching goals linked to more 

specific objectives. The goals are: (1) 

Ensuring sustainability of both the 

summer flounder stock and fishery; (2) 

increasing the effectiveness of 

management measures through 

partnerships, enforcement, and data 

collection; and, (3) optimization of the 

social and economic benefits from the 

summer flounder stock. Additional 

information on these changes can be 

found in the Amendment 21 FEIS. 

Comments and Responses 

We received seven comment letters on 

the NOA and the proposed rule. Four 

comments were received on the 

proposed rule and three comments were 

received on the NOA. The state of New 

York and the New York Department of 

Environmental Conservation jointly 

submitted the same comment in 

response to the proposed rule and NOA 

(hereinafter referenced as ‘‘New York’’), 

resulting in six unique comments on the 

proposed rule and NOA. Three 

comments, one from an industry group 

in Rhode Island and two from members 

of the public, supported the revised 

allocation system. The only comment 

that did not support approval of the 

revised allocation system was from New 

York. The comment submitted by New 

York consisted of a letter and nine 

supporting attachments, which 

ultimately requested that we disapprove 

Amendment 21. Similar to arguments 

made in ongoing and past litigation and 

its comments on the Draft EIS, New 

York contends that the revised 

allocations and resulting quotas are not 

in accordance with Magnuson-Stevens 

Act’s National Standards 2, 4, 5, and 7. 

See comments 5–7, below, for more 

information. 

Two comments on the proposed rule 

were not relevant to the proposed 

measures. One of these comments was 

related to the allocation split between 

the commercial and recreational sectors, 

and the perceived inequity of current 

recreational management. These issues 

are currently being considered by the 

Council and Commission in a separate 

joint action to address commercial/ 

recreational sector allocations. The 

other comment, from a member of the 

public, stated that the total quota should 

be reduced below 9.5 million lb (4,332 

mt), to 6.5 million lb (2,971 mt) because 

the current quota levels are 

unsustainable. Amendment 21, as an 

action, does not set summer flounder 

quotas. However, the process used to set 

quotas does so in a manner that ensures 

that catch levels are sustainable and 

overfishing is prevented. These 

comments were not related to the 

proposed commercial state allocation 

changes or management objective 

revisions, and, therefore, are not 

discussed further. 

Comment 1: An industry group in 

Rhode Island commented on the 

proposed rule in support of the 

proposed allocation changes because the 

revised allocations allow states to keep 

their existing shares of summer 

flounder, which they greatly depend on, 

but also provide those states allocated a 

lower quota with an increased share 

when the summer flounder quota 

reaches the threshold. 

Response 1: We agree and have 

approved the Council’s proposed 

allocation changes. The Council and 

Board selected the approved approach 

to balance the historical distribution of 

allocations with the need to equitably 

provide additional quota to states with 

lower quotas when summer flounder is 

abundant. 

Comment 2: One comment on the 

NOA supported the approval of 

Amendment 21. This commenter also 

misunderstood the proposed measures, 

and stated support for 9.55 million lb 

(4,332 mt) cap on summer flounder 

catch. 

Response 2: We agree with this 

commenter’s support of Amendment 21 

and have approved the amendment as 

recommended by the Council and 

Commission. However, we note that 

Amendment 21 does not constrain 

future commercial summer flounder 

catch limits to 9.55 million lb (4,332 

mt). This is the threshold level for the 

change in the allocation formula. 

Comment 3: One comment on the 

NOA supported the approval of 

Amendment 21. Specifically, this 

commenter supported the Council’s 

updates to the management objectives. 

This commenter also supported the 

allocation change because it adapts to 

changing population levels. 

Response 3: We agree and have 

approved Amendment 21. 

Comment 4: One commenter asked 

why Maine, Delaware, and New 

Hampshire do not get distributed shares 

of the excess quota. 

Response 4: Under this amendment, 

Maine, Delaware, and New Hampshire 

do get distributed additional shares of 

commercial summer flounder quota. 

The distribution of the baseline 9.55 

million lb (4,332 mt) quota remains 

unchanged by this action. In years when 

the coastwide quota exceeds 9.55 

million lb (4,332 mt), any additional 

quota beyond this threshold will be 

distributed in equal shares to all states 

except Maine, Delaware, and New 

Hampshire, which would split 1 percent 

of the additional quota. These states 

receive a smaller portion of the 

additional quota because they have a 

very limited fishery for summer 

flounder. To date, Maine and New 

Hampshire have no reported 

commercial summer flounder landings 

in 2020, and none for the 2019 fishing 

year. Delaware also has no reported 

2020 landings, and 2019 landings were 

less than 1,300 lb (0.59 mt). 

Comment 5: New York contends that 

the revised allocation system in the 

amendment is inconsistent with 

National Standard 2 because it is not 

based upon the best scientific 

information available. Specifically, New 

York states that it is not based on 

current, reliable information about the 

summer flounder fishery; the 

continuation of the 1993 formula is 

based upon flawed, outdated 

information from the 1980s; and the 

amendment’s proposed method to 

evenly distribute excess landings 

appears to be based upon no scientific 

information whatsoever. 

Response 5: We disagree with New 

York’s position that the current and the 

revised allocation approaches are not 

based on relevant data sources or the 

best available scientific information. 

The 1980–1989 landings data used in 

the base allocation formula represent 

the best scientific information available 

for commercial landings, by state, from 

that time period, which was prior to 

imposing state-based allocations. 


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Landings since 1993 have been 

constrained by the allocation formulas, 

so more recent data would simply 

reflect the same percentages as the 

1980–1989 data or would be skewed 

toward states that exceeded their quota 

allocations. The 1980–1989 base years 

were originally selected because they 

represented a period of relatively 

unrestricted fishing effort and, therefore, 

could serve as a proxy for state level 

effort and interest in the fishery absent 

management controls. 

New York has long asserted that a 

different accounting method (i.e., a ‘‘box 

method’’ rather than weigh-out data) 

was used for tracking New York’s 

landings during the 1980s, and that this 

method would account for a higher level 

of landings than shown in current 

dealer data. However, despite numerous 

opportunities to provide this 

information, it appears that records of 

these alternative landings do not exist or 

are not readily available for review, and 

it is not clear that these data would be 

comparable to existing landings data if 

they were available. 

More recently, New York has claimed 

that its summer flounder fishery during 

that period was infiltrated by organized 

crime, resulting in unreported landings 

and making it impossible to to collect 

accurate landings information in New 

York for that timeframe. 

After the initial state allocations were 

developed, Connecticut made similar 

arguments about inaccuracies in 

landings data and was able to document 

the higher levels of landings in that 

state. As a result, the Council revised 

Connecticut’s allocation through 

Amendment 4 to the FMP. In contrast, 

New York has not presented any 

additional basis for similar adjustments 

to its historical landings data and, in 

fact, has suggested that there is not a 

way to gather more accurate data for 

New York landings during that 

timeframe. 

Comment 6: New York contends that 

the revised allocation system should be 

based on recent trends in the 

distribution of summer flounder, and 

that because the revised allocation does 

not address the shift in stock 

distribution, the resulting allocation is 

not fair or efficient and results in 

excessive costs for New York fishermen, 

contrary to National Standard 5. 

Response 6: The Council and Board 

did consider revising allocations based 

on recent summer flounder stock 

distribution information (alternative 

2B), but ultimately did not select that 

alternative. While a reallocation scheme 

based only on proximity to the center of 

summer flounder biomass might allow 

for more efficient access for states with 

fleets targeting summer flounder that are 

closer to the center of biomass, it would 

also disadvantage states with 

traditionally more long-distance fleets 

and fleets historically dependent on 

summer flounder by reducing their 

allocation. While National Standard 5 

directs that management measures 

should consider efficiency in the 

utilization of fishery resources when 

practicable, the NMFS National 

Standard 5 Guidelines recognize that 

pure efficiency considerations should 

not prevent the attainment of other 

social or biological objectives. 50 CFR 

600.330(b)(2)(ii). Of relevance here, 

National Standard 8 directs that 

management measures take into account 

the importance of fishery resources to 

fishing communities to allow for the 

sustained participation of such 

communities. 50 CFR 600.345. 

Substantial reductions in allocation, 

resulting in quotas below historical 

averages for states that have historically 

depended on the summer flounder 

fishery would increase their operation 

costs, and the cost of the infrastructure 

relative to the value of the fishery 

overall. Along the coast, there is 

substantial variability in the mobility of 

each state’s fleet, the traditional areas of 

operation for each state’s fleet, the 

targeted species of each state’s fleet, and 

economic dependence on summer 

flounder within each state. The Council 

selected the proposed allocation 

formula to balance preservation of 

historical state access and infrastructure 

at recent quota levels, with the intent to 

provide equitability among states when 

the stock and quota are at higher levels. 

We disagree that the revised 

allocation formula does not address the 

shift in stock distribution. While the 

formula is not based on the biomass 

distribution, it does generally reduce the 

proportion of quota for states at the 

southern end of summer flounder 

distribution (North Carolina, Virginia, 

and New Jersey) and increase allocation 

for many northern states, including New 

York, reflecting the shift of the center of 

summer flounder biomass. Increased 

allocations during years with higher 

biomass levels, may allow these states to 

liberalize management measures, such 

as possession limits, increasing the 

efficiency of vessels landing in their 

ports. Had the revised allocation 

formula been used when setting 2020 

state-by-state quotas, New York’s quota 

would have been 10.61 percent higher 

than under status quo allocations. While 

there is no guarantee that summer 

flounder quotas will remain above 9.55 

million lb (4,332 mt), the trigger was 

based on the average of quotas from 

2014–2018 and 2009–2018. The 

proposed 2021 quota is higher than the 

2020 quota, at 12.49 million lb (5,665 

mt). 

Comment 7: New York contends that 

the revised allocation is inconsistent 

with National Standard 4 because it 

would allocate fishing privileges in the 

commercial summer flounder fishery 

between the states in a manner that is 

neither fair and equitable, reasonably 

calculated to promote conservation, nor 

carried out in a manner to prevent any 

entity from acquiring an excessive 

share. Specifically, New York states that 

‘‘. . . the outdated 1993 Allocation 

regime is unfair to fishermen and other 

market participants in New York, to the 

benefit of fishermen and other market 

participants in North Carolina and 

Virginia, without any rational 

conservation basis. The Proposed 

Amendment would substantially retain 

this model with only incremental relief 

for New York in abundant years, making 

it inconsistent with Magnuson Standard 

4.’’ 

Response 7: The new allocation was 

specifically developed to balance 

historical allocations and access with 

equitability across states. When the 

quota is above the threshold the 

remaining quota is distributed equally 

to all states (with the exception of 

Maine, New Hampshire and Delaware). 

New York’s comments suggest that a 

significant portion of the quota should 

have been reallocated to New York, due 

to the stock distribution and resulting 

fishery dynamics. While this type of 

reallocation scheme would have been 

favorable for New York fishermen, it 

would have disadvantaged other states 

that have a historical dependence on 

this fishery. The National Standard 4 

Guidelines specifically state that the 

Council should consider other factors 

relevant to the FMP’s objectives, 

including the dependence on the fishery 

by present participants and coastal 

communities when considering 

allocation changes. 

Additionally, according to the 

Guidelines, an allocation of fishing 

privileges should be rationally 

connected to the achievement of 

optimal yield (OY) or with the 

furtherance of a legitimate FMP 

objective. Inherent in an allocation is 

the advantaging of one group to the 

detriment of another. The motive for 

making a particular allocation should be 

justified in terms of the objectives of the 

FMP; otherwise, the disadvantaged user 

groups or individuals would suffer 

without cause. Objective 3.1 of the FMP 

states that reasonable access to the 

fishery throughout the management unit 

should be provided and that fishery 


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80664 Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations 

allocations and other management 

measures should balance 

responsiveness to changing social, 

economic, and ecological conditions 

with historic and current importance to 

various user groups and communities. 

By balancing between historic 

participants from southern states and 

New York’s desire for increased quota 

based on shifts in summer flounder 

distribution Amendment 21 reflects this 

objective of the FMP. 

New York also contends that the new 

allocation will not prevent excessive 

shares from being accumulated. 

Specifically New York states that ‘‘. . . 

the Proposed Amendment would 

provide the fishing industries in North 

Carolina and Virginia an excessive share 

of fishing privileges.’’ The National 

Standard 4 Guidelines state that ‘‘an 

allocation scheme must be designed to 

deter any person or other entity from 

acquiring an excessive share of fishing 

privileges, and to avoid creating 

conditions fostering inordinate control, 

by buyers or sellers, that would not 

otherwise exist.’’ 50 CFR 

600.235(c)(3)(iii) (emphasis added). The 

new allocation formula will, in years 

when the quota exceeds 9.55 million lb 

(4,332 mt), reduce the proportion of 

quota that both North Carolina and 

Virginia will receive, compared to the 

status quo. Approval of the new 

allocation formula does not, in fact, 

increase these states’ quota shares in a 

manner that would not otherwise exist. 

Moreover, state landings quotas do not 

result in excessive shares in the summer 

flounder fishery. The concept of 

excessive shares refers to individuals 

and/or corporations having market 

control. This Amendment revises the 

allocation of landings among the states. 

Within and among the states there are 

hundreds of Federal and state permitted 

vessels in the fishery, which prevents 

any individual from exercising market 

power in a manner that would be 

considered an excessive share. 

National Standard 4 guidelines state 

that allocations should be reasonably 

calculated to promote conservation. 

Numerous methods of allocating fishing 

privileges can be considered 

‘‘conservation and management’’ 

measures under section 303 of the 

Magnuson-Stevens Act. State allocations 

promote conservation by reducing the 

potential for a ‘‘race to fish’’ that can 

result from coastwide allocations, 

allowing for a more orderly prosecution 

of the fishery through management at 

the state landings level. Inherent in such 

a state allocation system is a division of 

the quota among the states. The new 

allocation formula is designed to 

provide equitable access to the resource 

compared to the status quo. When the 

stock biomass is high, as it is currently, 

quota above 9.55 million lb (4,332 mt) 

is distributed evenly to states with an 

active summer flounder fishery, 

including New York. This results in a 

shift of quota from states with 

historically higher quotas to northern 

states such as New York, Connecticut, 

and Massachusetts. These states receive 

additional access to the stock when it is 

healthy, which should increase the 

economic and social benefits to these 

communities without unfairly 

disadvantaging states and communities 

that have historically relied on the 

quota. 

Changes From the Proposed Rule 

There are no changes to the measures 

from the proposed rule. 

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. 

For the reasons discussed below, the 

Assistant Administrator for Fisheries 

finds that the need to implement these 

measures in a timely manner constitutes 

good cause, under the authority 

contained in 5 U.S.C. 553(d)(3), to waive 

the 30-day delay in effective date of this 

action. This action implements a new 

state-by-state allocation formula for the 

commercial summer flounder fishery, 

which should be effective by the start of 

the summer flounder fishing year on 

January 1, 2021. 

This rule is being issued at the earliest 

possible date. Preparation of the 

proposed rule was dependent on the 

submission of the FEIS, in support of 

the Amendment, that is developed by 

the Council. An initial draft was 

received by NMFS in March 2020, and 

a final draft was submitted in May 2020. 

A NOA for the FEIS was prepared for 

Amendment 21, as required by the 

National Environmental Policy Act, and 

published on July 31, 2020 (85 FR 

46094) with a comment period ending 

on August 31, 2020. In addition, as 

required by the Magnuson-Stevens Act, 

an NOA for Amendment 21 published 

on July 29, 2020 (85 FR 45571), with a 

comment period ending on September 

28, 2020. A proposed rule was 

published on August 12, 2020 (85 FR 

48660), with a comment period ending 

on September 11, 2020. 

The summer flounder fishery operates 

on the calendar year. Annual 

publication of the summer flounder 

quotas is required prior to the start of 

the fishing year, by December 31. 

Amendment 21 has already been 

approved (October 19, 2020), and this 

final rule must be effective as soon as 

possible to enable the use of the new 

allocation formula in the 2021 summer 

flounder specifications. If this rule were 

not effective prior to the start of the 

fishing year, the resulting mid-year 

change to the allocations and state 

quotas would cause unnecessary harm 

to the fishery and would be contrary to 

the public interest. Based on historic 

participation and harvest patterns, the 

summer flounder fishery is expected to 

be very active at the start of the fishing 

season in 2021. If this rule is not 

effective on January 1 and interim 

specifications go into effect, it would 

create unnecessary challenges for 

individual states when setting 

commercial possession and/or trip 

limits, which apportion the catch over 

the entire calendar year. Moreover, if 

the current formula were used to 

develop the state quotas at the 

beginning of the year, there is the 

potential for a ‘‘race to fish’’ for states 

whose quotas would be lower using the 

new formulas, which could ultimately 

result in landings overages. 

Furthermore, the revised allocation 

formula is intended to create a more 

equitable distribution of quota and 

provide relief for states that have had 

lower quotas relative to their fleet’s 

reliance on the summer flounder fishery 

in recent years. 

The 30-day delay in implementation 

of this rule is also unnecessary because 

this rule contains no new measures (e.g., 

requiring new nets or equipment) for 

which regulated entities need time to 

prepare or revise their current practices. 

The Council prepared a FEIS for this 

FMP amendment. The FEIS was filed 

with the Environmental Protection 

Agency on July 23, 2020. A notice of 

availability was published on July 31, 

2020 (85 FR 46094). In approving the 

FMP amendment on October 19, 2020, 

NMFS issued a ROD identifying the 

selected alternative. A copy of the ROD 

is available from NMFS (see 

ADDRESSES). 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

This final rule is not an Executive 

Order 13771 regulatory action because 

this action is not significant under 

Executive Order 12866. 

A final regulatory flexibility analysis 

(FRFA) was prepared for this action. 

The FRFA incorporates the IRFA and a 

summary of the analyses completed to 

support the action. NMFS did not 

receive any comments that were 


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specifically in response to the IRFA. 

The FRFA incorporates sections of the 

preamble (SUPPLEMENTARY INFORMATION) 

and analyses supporting this 

rulemaking, including the Amendment 

21 EIS (see ADDRESSES). A description of 

the action, why it is being considered, 

and the objectives of and the legal basis 

for this rule are contained in the 

supplemental information report and 

preamble to the proposed rule, and are 

not repeated here. 

A Summary of the Significant Issues 

Raised by the Public in Response to the 

IRFA, a Summary of the Agency’s 

Assessment of Such Issues, and a 

Statement of Any Changes Made in the 

Final Rule as a Result of Such 

Comments 

Our responses to all of the comments 

received on the proposed rule, 

including those that raised significant 

issues with the proposed action can be 

found in the Comments and Responses 

section of this rule. In the proposed 

rule, we solicited comments on a 

revised allocation formula for 

distributing commercial summer 

flounder quota to states, and updated 

FMP goals and objectives. The majority 

of comments supported the proposed 

measures. There were no comments that 

specifically addressed the IRFA. 

Description and Estimate of the Number 

of Small Entities to Which This Rule 

Would Apply 

The entities (i.e., the small and large 

businesses) that may be affected by this 

action include fishing operations with 

summer flounder moratorium 

(commercial) permits. The recreational 

fishery is not impacted by this action, 

and therefore entities with recreational 

party/charter permits are not considered 

here, nor are private recreational anglers 

which are not considered ‘‘entities’’ 

under the Regulatory Flexibility Act 

(RFA). For RFA purposes only, NMFS 

established a small business size 

standard for businesses, including their 

affiliates, whose primary industry is 

commercial fishing (50 CFR 200.2). A 

business primarily engaged in 

commercial fishing is classified as a 

small business if it is independently 

owned and operated, is not dominant in 

its field of operation (including its 

affiliates), and has combined annual 

receipts not in excess of $11 million, for 

all its affiliated operations worldwide. 

Vessel ownership data were used to 

identify all individuals who own 

commercial fishing vessels. Vessels 

were then grouped according to 

common owners. The resulting 

groupings were then treated as entities, 

or affiliates, for purposes of identifying 

small and large businesses, which may 

be affected by this action. Based on this 

grouping, a total of 607 affiliates 

reported revenues from commercial 

summer flounder landings during the 

2016–2018 period, with 601 of those 

business affiliates categorized as small 

businesses and 6 categorized as large 

businesses. 

Description of the Projected Reporting, 

Record-Keeping, and Other Compliance 

Requirements of This Rule 

There are no reporting, recordkeeping, 

or other compliance requirements. 

Federal Rules Which May Duplicate, 

Overlap, or Conflict With This Rule 

The action does not duplicate, 

overlap, or conflict with other Federal 

rules. 

Description of Significant Alternatives 

to the Rule Which Accomplish the 

Stated Objectives of Applicable Statutes 

and Which Minimize Any Significant 

Economic Impact on Small Entities 

The approved measures (i.e., the suite 

of preferred alternatives) includes 

implementation of revised commercial 

quota allocation system for the summer 

flounder fishery. Specifically, this 

action creates state allocations that vary 

with overall stock abundance. For all 

years when the annual commercial 

quota is at or below 9.55 million lb 

(4,332 mt), the state allocations will 

remain status quo. In years when the 

annual coastwide quota exceeds this 

trigger, the first 9.55 million lb (4,332 

mt) will be distributed according to 

status quo allocations, and the 

additional quota, beyond 9.55 million lb 

(4,332 mt), will be distributed by equal 

shares (with the exception of Maine, 

New Hampshire, and Delaware, which 

would split 1 percent of the additional 

quota). 

Additional non-preferred alternatives 

were also considered. For the purposes 

of the RFA, only the preferred 

alternatives and those non-preferred 

alternatives which would minimize 

negative impacts to small businesses are 

required to be considered. Economic 

impacts would vary by state and 

community under all alternatives, but 

alternatives 2A (status quo) and 

alternatives 2C (the preferred 

alternative) are likely to have fewer 

negative impacts overall compared to 

other alternatives. Therefore, the 

preferred alternative (2C) is compared to 

the status quo (alternative 2A) in the 

quantitative analysis. Although not 

required, we also provide a brief 

summary of the relative impacts of the 

two additional non-preferred options 

(2B and 2D). 

The analysis was conducted assuming 

full utilization of the 2020 commercial 

quota of 11.53 million lb (5,230 mt). 

Results indicate that the proposed 

action of a quota reallocation threshold 

of 9.55 million lb (4,332 mt) increases 

fleetwide revenue by $400,000 relative 

to No Action, and ex-vessel price by 

$0.04 per pound relative to No Action. 

The proposed action is estimated to 

yield a decrease in fishery-wide revenue 

of $150,000 as compared to the quota 

reallocation threshold of 8.4 million lb 

(3,810 mt) (Alternative 2C–1). This 

slight decrease in revenue under the 

proposed action, relative to the highest 

revenue-generating alternative, is not 

expected to disproportionately impact 

small entities. 

Additional alternatives, 2B and 2D, 

were considered but not recommended 

by the Council. Alternatives 2B and 2D 

had more negative impacts on small 

businesses than the selected alternative. 

Alternative 2B considered revisions to 

the quota allocation based on recent 

summer flounder biomass distribution, 

while alternative 2D (the ‘‘scup 

model’’), considered a significant 

change in summer flounder 

management by creating a winter season 

that was open to any vessel with a 

summer flounder permit. 

Compared to the other allocation 

alternatives, the impacts of alternative 

2D are the most difficult to determine, 

as this alternative is associated with the 

highest uncertainty regarding impacts 

on vessel participation, fishing effort, 

landings patterns, and market 

responses. Relative to alternative 2A, 

alternative 2D is expected to have a 

higher magnitude of positive or negative 

impacts to states and businesses, due to 

the substantial change in the 

management system that will benefit 

some and negatively impact others. 

Shoreside communities would also be 

impacted by alternative 2D. Many states 

have invested heavily in shoreside 

infrastructure to support their fleets. 

Under alternative 2D, the distribution of 

landings in the winter would be driven 

more by vessel preference and market 

factors, which would positively impact 

some shoreside businesses and 

negatively impact others. 

Alternative 2B would shift quota 

allocation from the Southern region of 

the management unit (North Carolina 

through New Jersey) to the Northern 

region (New York through Maine). 

Compared to alternative 2C, alternative 

2B is more likely to have a higher 

magnitude of positive or negative 

impacts (depending on the state), as 

allocation changes would be 

permanently revised from status quo, 

while under 2C there is the potential for 


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80666 Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations 

status quo allocation. Additionally, 

option 2C has a higher likelihood of 

costs and benefits being shared more 

equally over time as the quota fluctuates 

above and below the trigger point. 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. As part of this 

rulemaking process, a fishery bulletin 

that serves as a small entity compliance 

guide was prepared. Copies of this final 

rule are available from the Greater 

Atlantic Regional Fisheries Office 

(GARFO) (see ADDRESSES), and fishery 

bulletin (i.e., compliance guide) will be 

sent to all holders of commercial 

permits for the summer flounder 

fishery. The fishery bulletin and this 

final rule will be posted on the GARFO 

website. 

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: December 7, 2020. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 648 is amended 

as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 1. The authority citation for part 648 

continues to read as follows: 

Authority: 16 U.S.C. 1801 et seq. 

■ 2. In § 648.102, paragraph (c)(1) is 

revised to read as follows: 

§ 648.102 Summer flounder specifications. 

* * * * * 

(c) * * * 

(1) Distribution of annual commercial 

quota. (i) For years when the annual 

commercial quota is at or below 

9,550,000 lb (4,332 mt), the quota will 

be distributed to the states, based upon 

the following percentages (state 

followed by percent share in 

parenthesis): Maine (0.04756); New 

Hampshire (0.00046); Massachusetts 

(6.82046); Rhode Island (15.68298); 

Connecticut (2.25708); New York 

(7.64699); New Jersey (16.72499); 

Delaware (0.01779); Maryland (2.03910); 

Virginia (21.31676); and North Carolina 

(27.44584). 

(ii) For years when the annual 

commercial quota is greater than 

9,550,000 lb (4,332 mt), the quota up to 

this amount will be distributed as 

outlined in paragraph (c)(1)(i) of this 

section, and the additional quota above 

9,550,000 lb (4,332 mt) will be 

distributed based upon the following 

percentages (state followed by percent 

share in parenthesis): Maine (0.333); 

New Hampshire (0.333); Massachusetts 

(12.375); Rhode Island (12.375); 

Connecticut (12.375); New York 

(12.375); New Jersey (12.375); Delaware 

(0.333); Maryland (12.375); Virginia 

(12.375); and North Carolina (12.375). 

* * * * * 

[FR Doc. 2020–27193 Filed 12–11–20; 8:45 am] 

BILLING CODE 3510–22–P 


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