[Federal Register Volume 85, Number 245 (Monday, December 21, 2020)]
[Rules and Regulations]
[Pages 82946-82949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27851]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 201214-0338; RTID 0648-XX006]


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass 2021 Specifications

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS announces 2021 specifications for the summer flounder, 
scup, and black sea fisheries. The implementing regulations for the 
Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan 
require us to publish specifications for the upcoming fishing year for 
each of these species. This action is intended to inform the public of 
the specifications for the start of the 2021 fishing year for summer 
flounder, scup, and black sea bass.

DATES: This rule is effective January 1, 2021.

ADDRESSES: A Supplemental Information Report (SIR) was prepared for the 
2021 summer flounder, scup, and black sea bass specifciations. Copies 
of the SIR are available on request from Dr. Christopher M. Moore, 
Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 
800 North State Street, Dover, DE 19901. The SIR is also accessible via 
the internet at http://www.mafmc.org/s/SF_2020-2021_specs_EA.pdf.

FOR FURTHER INFORMATION CONTACT: Emily Keiley, Fishery Policy Analyst, 
(978) 281-9116.

SUPPLEMENTARY INFORMATION:

General Background

    The Mid-Atlantic Fishery Management Council and the Atlantic States 
Marine Fisheries Commission cooperatively manage the summer flounder, 
scup, and black sea bass fisheries. The Summer Flounder, Scup, and 
Black Sea Bass Fishery Management Plan (FMP) outlines the Council's 
process for establishing specifications. The FMP requires NMFS to set 
an acceptable biological catch (ABC), annual catch limit (ACL), annual 
catch targets (ACT), commercial quotas, recreational harvest limits 
(RHL), and other management measures, for 1 to 3 years at a time. 
Projected 2021 specifications for summer flounder (84 FR 54041; October 
9, 2019) and scup and black sea bass (85 FR 29345; May 15, 2020) were 
previously announced. This action revises the 2021 ABC limits, as well 
as the recreational and commercial ACLs, ACTs, commercial quotas, and 
RHLs for all three species, consistent with the recommendations made by 
the Commission's Summer Flounder, Scup, and Black Sea Bass Board and 
the Council at their joint August 2020 meeting. These revisions are 
primarily based on recent changes to the Council's risk policy that we 
approved on December 15, 2020. The risk policy defines the acceptable 
risk of overfishing associated with an ABC. The revised risk policy 
allows for increased risk of overfishing under high stock biomass 
conditions compared to the previous risk policy. The change is greatest 
for stocks with biomass above the target level (B<INF>MSY</INF>).

Final 2021 Specifications

Summer Flounder Specifications

    For summer flounder, applying the revised risk policy, keeping all 
other relevant factors the same as previously adopted, results in an 
increase in the 2021 ABC from 25.03 million lb (11,354 mt) to 27.11 
million lb (12,297 mt). This represents an 8-percent increase in the 
ABC and an increase in the probability of overfishing from 34 to 39 
percent. Given the high biomass (healthy stock status) of summer 
flounder, the revised risk policy allows for a slightly increased risk 
of overfishing, which balances fishery access with the prevention of 
overfishing. Section 5.1 of the Council's SIR provides information on 
how the revised ABC was calculated using the new risk policy. The 
resulting catch and landings limits are shown in Table 1.

       Table 1--Summary of the Final 2021 Summer Flounder Fishery
                             Specifications
------------------------------------------------------------------------
           2021 Specifications              million lb          mt
------------------------------------------------------------------------
OFL.....................................           31.67          14,367
ABC.....................................           27.11          12,297
Commercial ACL..........................           14.63           6,635
Commercial ACT..........................           14.63           6,635
Commercial Quota........................           12.49           5,663
Recreational ACL........................           12.48           5,662
Recreational ACT........................           12.48           5,662
Recreational Harvest Limit..............            8.32           3,776
------------------------------------------------------------------------

    We also recently approved (October 19, 2020) and implemented 
(December 14 2020, 85 FR 80661) Amendment 21 to the FMP. Amendment 21 
implements a new state-by-state allocation formula for the commercial 
summer flounder fishery. The revised allocation formula was used to set 
the final 2021 summer flounder commercial state quotas. In addition to 
the revised allocation formula, the final state summer flounder quotas 
take into account any overages that occurred during the 2019 or current 
fishing year, through October 31, as described at 50 CFR 648.103(b)(2). 
The final 2021 state-by-state summer flounder quotas are provided in 
Table 2.

[[Page 82947]]



                                                Table 2--Final 2021 Summer Flounder State-by-State Quotas
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Additional
                                                                         percent
                                                           Percent      share of       Initial       Initial     Preliminary      Final         Final
                         State                              share      quota above   allocation    allocation   2020 overage   allocation    allocation
                                                                        9.55 m lb        lb            kg                          lb            kg
                                                                       (4,332 mt)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maine.................................................       0.04756         0.333        14,342         6,501  ............        14,332         6,501
New Hampshire.........................................       0.00046         0.333         9,844         4,461  ............         9,834         4,461
Massachusetts.........................................       6.82046        12.375     1,015,179       460,477  ............     1,015,179       460,477
Rhode Island..........................................      15.68298        12.375     1,861,550       844,385  ............     1,861,550       844,385
Connecticut...........................................       2.25708        12.375       579,376       262,801  ............       579,376       262,801
New York..............................................       7.64699        12.375     1,094,113       496,281  ............     1,094,113       496,281
New Jersey............................................      16.72499        12.375     1,961,062       889,523  ............     1,961,062       889,523
Delaware..............................................       0.01779         0.333        11,499         5,211       -52,307       -40,818       -18,515
Maryland..............................................        2.0391        12.375       558,559       253,358  ............       558,559       253,358
Virginia..............................................      21.31676        12.375     2,399,576     1,088,429  ............     2,399,576     1,088,429
North Carolina........................................      27.44584        12.375     2,984,903     1,353,929  ............     2,984,903     1,353,929
--------------------------------------------------------------------------------------------------------------------------------------------------------

    This action makes no changes to the current commercial management 
measures, including the minimum fish size (14 inches (36 cm), total 
length), gear requirements, and possession limits. No changes to 2021 
recreational management measures (bag limits, size limits, and seasons) 
were considered as part of this action.

Scup Specifications

    Application of the revised risk policy to the 2021 scup OFL, 
keeping all other relevant factors the same, results in the 2021 ABC 
increasing from 30.67 million lb (13,912 mt) to 34.81 million lb 
(15,790 mt). This represents a 13-percent increase in the ABC. Section 
5.2 of the Council's SIR provides information on how the revised ABC 
was calculated using the new risk policy. The resulting catch and 
landings limits are shown in Table 3.

     Table 3--Summary of the Final 2021 Scup Fishery Specifications
------------------------------------------------------------------------
           2021 Specifications              million lb          mt
------------------------------------------------------------------------
OFL.....................................           35.30          16,012
ABC.....................................           34.81          15,791
Commercial ACL..........................           27.15          12,317
Commercial ACT..........................           27.15          12,317
Commercial Quota........................           20.50           9,299
Recreational ACL........................            7.66           3,474
Recreational ACT........................            7.66           3,474
Recreational Harvest Limit..............            6.07           2,752
------------------------------------------------------------------------


                       Table 4--Commercial Scup Quota Allocations for 2021 by Quota Period
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                          Quota period                             Percent share        lb              mt
----------------------------------------------------------------------------------------------------------------
Winter I........................................................           45.11       9,247,904        4,194.77
Summer..........................................................           38.95       7,985,056        3,621.96
Winter II.......................................................           15.94       3,267,825        1,482.26
                                                                 -----------------------------------------------
    Total.......................................................           100.0      20,500,000        9,299.00
----------------------------------------------------------------------------------------------------------------
Note: Pounds are converted from metric tons and may not necessarily total due to rounding.

    This action does not change the 2021 commercial management measures 
for scup, including the minimum fish size (9 inches (22.9 cm), total 
length), gear requirements, and quota period possession limits. Like 
summer flounder, changes to the recreational measures for 2021 were not 
considered in this action.

Black Sea Bass Specifications

    Application of the revised risk policy to the 2021 black sea bass 
OFL, keeping all other relevant factors the same, results in the 2021 
ABC increasing from 15.07 million lb (6,836 mt) to 17.45 million lb 
(7,915 mt), representing a 16-percent increase. As specified in the 
FMP, 49 percent of the ABC that is expected to be landed is allocated 
to the commercial fishery and 51 percent is allocated to the 
recreational fishery. Expected discards in each sector are added to 
these amounts to derive commercial and recreational ACLs. The Council 
and Board recommended revisions to the method for calculating expected 
discards for black sea bass. The revised method is based on the 
assumption that sector-specific discards, as a percentage of sector-
specific catch, will be the same as the 2016-2018 average (i.e., 
commercial dead discards would account for 36 percent of commercial 
catch and recreational dead discards would account for 20 percent of 
recreational catch). This allows commercial discards to scale up with 
the increase in the quota, consistent with past trends in the fishery. 
The previously used method for calculating expected discards under-
predicted

[[Page 82948]]

actual discards in both sectors, contributing to commercial and 
recreational ACL overages in every year since 2015. The revised 
methodology reduces the likelihood of ACL overages. The resulting catch 
and landings limits are shown in Table 5. This action does not change 
the 2021 commercial management measures for black sea bass, including 
the commercial minimum fish size (11 inches (27.94 cm), total length) 
and gear requirements.

    Table 5--Summary of the Final 2021 Black Sea Bass Specifications
------------------------------------------------------------------------
           2021 Specifications              million lb          mt
------------------------------------------------------------------------
OFL.....................................           17.68           8,021
ABC.....................................           17.45           7,916
Commercial ACL..........................            9.52           4,320
Commercial ACT..........................            9.52           4,320
Commercial Quota........................            6.09           2,764
Recreational ACL........................            7.93           3,596
Recreational ACT........................            7.93           3,596
Recreational Harvest Limit..............            6.34           2,877
------------------------------------------------------------------------

    This action revises the projected state-by-state February black sea 
bass recreational fishery harvest. No changes to the management 
measures for the February fishery are being proposed. The harvest 
projections are being updated to incorporate the revised Marine 
Recreational Information Program data, but the overall estimation 
method would remain unchanged (Table 6). States that choose to 
participate in this optional opening must use these revised values when 
developing state waters management measures for the rest of the year. 
The purpose is to ensure their participation in this optional opening 
does not increase their annual recreational black sea bass harvest in 
such a way as to result in an overage of the coastwide RHL. Changes to 
management measures for the overall recreational black sea bass fishery 
were not considered in this action.

  Table 6--Recreactional Black Sea Bass February 2021 Harvest Estimates
------------------------------------------------------------------------
                                              Harvest         Harvest
                  State                   estimates (lb)  estimates (mt)
------------------------------------------------------------------------
Rhode Island............................           1,146            0.52
Connecticut.............................             158            0.07
New York................................          41,871           18.99
New Jersey..............................         405,913          184.12
Delaware................................           6,418            2.91
Maryland................................           2,227            1.01
Virginia................................          24,891           11.29
North Carolina..........................           1,369            0.62
                                         -------------------------------
    Total...............................         483,993          219.54
------------------------------------------------------------------------

Comments and Responses

    We received two comments on the proposed rule. One comment was not 
relevant to the proposed specifications and is not discussed further. 
The second comment was from the State of New York and the New York 
State Department of Environmental Conservation (hereinafter referenced 
as ``New York''). New York's comment comprises a cover letter and ten 
attachments. The attachments were the comment letters and supporting 
documents that New York previously submitted in response to the 
proposed rule for the 2020-2021 Summer Flounder, Scup, Black Sea Bass, 
and Bluefish Specifications (84 FR 36046; July 26, 2019) and the 
proposed rule for Amendment 21 to the FMP (85 FR 48660; August 12, 
2020). Similar to arguments made in ongoing and past litigation, 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. NMFS's responses to New York's previously submitted comments can 
be found in the final rules for those two actions (84 FR 54041; October 
8, 2019, and 85 FR 80661; December 14, 2020) and are not repeated here.
    In the proposed rule, we published initial 2021 summer flounder 
state quotas based on two scenarios. In the first scenario the 
distribution of state quota was based on the new allocation method we 
approved through Amendment 21 to the FMP. Although we approved 
Amendment 21 on October 19, 2020, when the specifications proposed rule 
was published, we did not know whether the final rule for Amendment 21, 
implementing the new allocation method, would be published and 
effective prior to the start of the 2021 fishing year. Due to the 
timing uncertainty, the proposed rule included a second scenario under 
which the commercial state summer flounder quota distribution would be 
based on the old allocation formula. In its comment letter, New York 
opposed ``the state-by-state allocations proposed under either 
scenario.''
    The final rule for Amendment 21 published on December 14, 2020. 
Therefore the current regulations governing the FMP require that quota 
allocations be distributed based on the percentages outlined in Table 
2. Any adjustments to these quota allocations that are currently part 
of the FMP must be developed and considered through an amendment to the 
FMP and are outside the scope of this specifications action.

Changes From the Proposed Rule

    As described in the proposed rule, the summer flounder 
specifications in this final rule incorporate overage information to 
calculate the final state quotas.

[[Page 82949]]

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.
    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 2021 
specifications for the summer flounder, scup, and black sea bass 
fisheries. These specifications should be effective by the start of the 
fishing year on January 1, 2021, and must be published on or before 
December 31, 2020.
    This rule is being issued at the earliest possible date. 
Preparation of the proposed rule was dependent on the Council's 
submission of the SIR. NMFS received the final version of the SIR on 
November 2, 2020. Preparation of the final rule is also dependent on 
the analysis of commercial summer flounder landings for the prior 
fishing year (2019) and the current fishing year through October 31, to 
determine whether any overages have occurred and adjustments are needed 
to the final state quotas. This process is codified in the summer 
flounder regulations, and, therefore, cannot be performed earlier. 
Annual publication of the summer flounder quotas prior to the start of 
the fishing year, by December 31, is required by Court Order in North 
Carolina Fisheries Association v. Daley.
    The 30-day delay in implementation for 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.
    This final rule is exempt from review under 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.

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

    Dated: December 14, 2020.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2020-27851 Filed 12-18-20; 8:45 am]
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