Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 67721 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 230919–0226] 

RIN 0648–BL98 

Snapper-Grouper Fishery of the South 

Atlantic Region; Golden Crab Fishery 

of the South Atlantic Region; Dolphin 

and Wahoo Fishery of the Atlantic; 

Acceptable Biological Catch Control 

Rules 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations to 

implement amendments to the Fishery 

Management Plans (FMPs) for the 

Snapper-Grouper Fishery of the South 

Atlantic Region (Snapper-Grouper 

FMP), the Golden Crab Fishery of the 

South Atlantic Region (Golden Crab 

FMP), and the Dolphin and Wahoo 

Fishery of the Atlantic (Dolphin and 

Wahoo FMP), referenced here as the 

Acceptable Biological Catch (ABC) 

Control Rule Amendments. If 

implemented, this proposed rule would 

modify the ABC control rules, allow the 

phase-in of ABC changes, allow some 

carry-over of an unharvested portion of 

the annual catch limit (ACL) to the 

following fishing year, and modify the 

FMP framework procedures to 

implement carry-overs of ACLs when 

appropriate. The purpose of this 

proposed rule is to ensure catch level 

recommendations are based on the best 

scientific information available, prevent 

overfishing while achieving optimum 

yield (OY), and increase flexibility in 

setting catch limits. NMFS also 

proposes an administrative clarification 

to existing regulations for the SnapperGrouper FMP framework procedure. 

DATES: Written comments must be 

received no later than November 1, 

2023. 

ADDRESSES: You may submit comments 

on the proposed rule, identified by 

‘‘NOAA–NMFS–2023–0067,’’ by either 

of the following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov and enter 

‘‘NOAA–NMFS–2023–0067’’ in the 

Search box. Click the ‘‘Comment’’ icon, 

complete the required fields, and enter 

or attach your comments. 

• Mail: Submit all written comments 

to Nikhil Mehta, NMFS Southeast 

Regional Office, 263 13th Avenue 

South, St. Petersburg, FL 33701. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (for example, name and 

address), confidential business 

information, or otherwise sensitive 

information submitted voluntarily by 

the sender will be publicly accessible. 

NMFS will accept anonymous 

comments—enter ‘‘N/A’’ in the required 

fields if you wish to remain anonymous. 

An electronic copy of the ABC 

Control Rule Amendments, which 

includes an environmental assessment, 

a fishery impact statement, and a 

regulatory impact review, may be 

obtained from the NMFS Southeast 

Regional Office website at https://

www.fisheries.noaa.gov/action/ 

comprehensive-acceptable-biologicalcatch-abc-control-rule-amendmentrevisions-abc-control. 

FOR FURTHER INFORMATION CONTACT: 

Nikhil Mehta, telephone: 727–824– 

5305, or email: nikhil.mehta@noaa.gov. 

SUPPLEMENTARY INFORMATION: The South 

Atlantic snapper-grouper and golden 

crab fisheries are managed under the 

Snapper-Grouper FMP and Golden Crab 

FMP, respectively. The dolphin and 

wahoo fishery of the Atlantic is 

managed under the Dolphin and Wahoo 

FMP. These three FMPs were prepared 

by the South Atlantic Fishery 

Management Council (Council) and are 

implemented by NMFS through 

regulations at 50 CFR part 622 under the 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act). The 

Council has developed, and submitted 

to NMFS for review and approval, the 

Comprehensive Acceptable Biological 

Catch Control Rule Amendment: 

Revisions to the Acceptable Biological 

Catch Control Rules and Specifications 

for Carry-Overs and Phase-Ins. The 

Council document is composed of 

Amendment 45 to the Snapper-Grouper 

FMP, Amendment 11 to the Golden 

Crab FMP, and Amendment 11 to the 

Dolphin and Wahoo FMP. 

Background 

The Council and NMFS manage 

snapper-grouper species and golden 

crab in Federal waters from North 

Carolina south to the Florida Keys. The 

dolphin and wahoo fishery is managed 

in Federal waters from Maine south to 

the Florida Keys. 

The Council’s Scientific and 

Statistical Committee (SSC) developed 

an ABC control rule in 2008, using 

uncertainty and risk traits to determine 

the acceptable risk of overfishing. The 

ABC control rule is the method by 

which the ABC for a stock is set, ideally 

based on an overfishing limit (OFL) 

from a stock assessment but at times 

established using more data-limited 

methodologies. The acceptable risk of 

overfishing is denoted as P-Star (P*) and 

is applied through assessment 

projections to develop the SSC’s ABC 

recommendation. During development 

of the Comprehensive ACL Amendment 

by the Council, the SSC recommended 

adding additional levels of specificity to 

the ABC control rules to better address 

unassessed and data-limited stocks. The 

Comprehensive ACL Amendment 

included the ABC control rules for the 

Snapper-Grouper, Golden Crab, and 

Dolphin and Wahoo FMPs in 2012 (77 

FR 15916, March 16, 2012). In 2015, the 

ABC control rule for the SnapperGrouper FMP was revised by adding the 

Only Reliable Catch Stocks (ORCS) 

approach for applicable snappergrouper stocks in Amendment 29 to the 

Snapper-Grouper FMP (80 FR 30947, 

June 1, 2015). The ORCS approach was 

recommended by the Council’s SSC for 

calculating ABC values for unassessed 

stocks when only reliable catch 

information is available, and was 

determined to be based on the best 

scientific information available. 

In October 2016, NMFS published a 

final rule to revise the guidelines for 

National Standard 1 (NS1) of the 

Magnuson-Stevens Act (81 FR 71858, 

October 18, 2016). NS1 states that 

fishery conservation and management 

measures shall prevent overfishing 

while achieving, on a continuing basis, 

the optimum yield from each fishery for 

the United States fishing industry. One 

of the objectives of the 2016 NS1 

revisions was to provide additional 

flexibility within current statutory 

limits to address fishery management 

issues. For example, the revised NS1 

guidelines allow for changes in catch 

limits to be phased in over time and is 

also described as ‘‘phase-in’’ in the ABC 

Control Rule Amendments and this 

proposed rule. The revised guidelines 

also allow for some of the unused 

portion of an ACL to be carried over 

from 1 fishing year to the next, which 

is also described as ‘‘carry-over’’ in this 

proposed rule. Fishery management 

councils, NMFS regions, and 

stakeholders have expressed 

considerable interest in using the phaseVerDate Sep<11>2014 17:02 Sep 29, 2023 Jkt 262001 PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 E:\FR\FM\02OCP1.SGM 02OCP1

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in and carry-over provisions in ABC 

control rules. In 2020, recommendations 

and best practices for how to develop 

and apply these provisions were 

provided in a NOAA Technical 

Memorandum (NMFS–F/SPO–203, July 

2020). The goals of the technical memo 

were to: (1) provide examples of how 

carry-over and phase-in provisions have 

been implemented in fisheries so that 

we can learn from past experiences; (2) 

describe some possible approaches to 

design and implement carry-over and 

phase-in provisions; and (3) identify 

characteristics of fish stocks, fisheries, 

and management approaches that may 

impact the benefits and risks of 

applying carry-over and phase-in 

provisions. If implemented by NMFS, 

this proposed rule would incorporate 

carry-over and phase-in provisions by 

modifying the existing ABC control 

rules for the Snapper-Grouper, Golden 

Crab, and Dolphin and Wahoo FMPs by 

clarifying the incorporation of scientific 

uncertainty and management risk, 

modifying the approach used to 

determine the acceptable risk of 

overfishing, and prioritizing the use of 

stock rebuilding plans for overfished 

stocks. 

Management Measure Contained in 

This Proposed Rule 

Modify Framework Procedures 

The ABC Control Rule Amendments 

and this proposed rule would modify 

the framework procedures in the 

Snapper-Grouper, Golden Crab, and 

Dolphin and Wahoo FMPs to allow for 

the future transfer, if pre-qualifying 

criteria are met, of an unharvested 

portion of a stock, total, or sectorspecific ACL to the following fishing 

year (details are described in the Allow 

Carry-Over of Unharvested Portion of 

ACLs section of this proposed rule). 

The current framework procedure for 

the Snapper-Grouper FMP in the 

regulations at 50 CFR 622.194 was 

implemented by Amendment 29 to the 

FMP in 2015. The current framework 

procedure allows for changes via 

rulemaking to: biomass levels, agestructured analyses, target dates for 

rebuilding overfished species, 

maximum sustainable yield (MSY) (or 

proxy), OY, ABC, total allowable catch 

(TAC), quotas (including a quota of 

zero), ACLs, annual catch targets 

(ACTs), accountability measures (AMs), 

maximum fishing mortality threshold 

(MFMT), minimum stock size threshold 

(MSST), trip limits, bag limits, size 

limits, gear restrictions (ranging from 

regulation to complete prohibition), 

seasonal or area closures, fishing year, 

rebuilding plans, definitions of essential 

fish habitat (EFH), EFH, EFH habitat 

areas of particular concern (HAPCs), or 

coral HAPCs, restrictions on gear and 

fishing activities applicable in EFH and 

EFH HAPCs, and establish or modify 

spawning special management zones 

(SMZs). 

The current framework procedure for 

the Golden Crab FMP in the regulations 

at 50 CFR 622.252 was implemented by 

the final rule for the original Golden 

Crab FMP in 1996 (61 FR 43952, August 

27, 1996). The current framework 

procedure allows for changes via 

rulemaking to: biomass levels, agestructured analyses, MSY, ABC, TAC, 

quotas (including quotas equal to zero), 

trip limits, minimum sizes, gear 

regulations and restrictions, permit 

requirements, seasonal or area closures, 

sub-zones and their management 

measures, time frame for recovery of 

golden crab if overfished, fishing year 

(adjustment not to exceed 2 months), 

observer requirements, authority for the 

NMFS Regional Administrator (RA) to 

close the fishery when a quota is 

reached or is projected to be reached, 

definitions of EFH, EFH HAPCs, or 

Coral HAPCs. 

The current framework procedure for 

the Dolphin and Wahoo FMP in the 

regulations at 50 CFR 622.194 was 

implemented by Amendment 5 to the 

Dolphin and Wahoo FMP in 2014 (79 

FR 32878, June 9, 2014). The current 

framework procedure allows for changes 

via rulemaking to: biomass levels, agestructured analyses, target dates for 

rebuilding overfished species, MSY (or 

proxy), OY, ABC, TAC, quotas 

(including a quota of zero), ACLs, ACTs, 

AMs, MFMT, MSST, trip limits, bag 

limits, size limits, gear restrictions 

(ranging from regulation to complete 

prohibition), seasonal or area closures, 

fishing year, rebuilding plans, 

definitions of EFH, EFH HAPCs, or 

Coral HAPCs, restrictions on gear and 

fishing activities applicable in EFH and 

EFH HAPCs, and establish or modify 

spawning SMZs. 

The existing framework procedures 

for the three FMPs in this proposed rule 

already enable the Council to ask the 

SSC to consider recommending a 

temporary, higher ABC. However, the 

existing approach is not efficient for 

changes to catch levels and would likely 

not allow the Council and NMFS to 

develop and implement changes to 

catch levels, given the timing of Council 

and SSC meetings, the time required to 

develop a framework action, and the 

time needed for NMFS to implement 

changes to catch levels within a fishing 

year based on landings from the 

previous year. 

If NMFS implements this proposed 

rule, the potential for carry-over of an 

ACL would not be immediate. Before 

NMFS could implement an ACL carryover, NMFS would have to implement 

this proposed rule. Then, other 

preceding steps by the Council, SSC, 

and NMFS must occur. 

A future stock assessment must 

determine if carry-over is possible for 

that species and specify the appropriate 

catch level. Then, the SSC would 

determine and recommend an ABC to 

the Council and the Council would 

develop an FMP amendment or 

framework action for the species with 

the option of ACL carry-over. If the 

required rulemaking for a catch level 

change that would follow was 

implemented by NMFS, then that 

species would be eligible for future 

carry-over through a subsequent 

abbreviated framework action under the 

abbreviated framework procedures 

described in this proposed rule. To 

support potential carry-over 

justification, a Term of Reference, 

would be added to each future stock 

assessment to project the maximum 

amount of landings beyond the ABC 

that could be carried over in 1 year 

while not resulting in overfishing, or in 

the stock becoming overfished, within 

the projection period. 

When the Council develops a 

subsequent fishery management action 

in response to a stock assessment to 

specify or revise an ABC and ACL for 

a stock or sector, the Council would 

determine whether carry-over would be 

authorized if annual conditions cause a 

stock ACL or sector ACL to qualify for 

carry-over. In doing so, the Council 

would consider the potential need for, 

and benefits of, carry-over for a stock 

that could become eligible according to 

criteria specified in the ABC control 

rule. The Council would also consider 

the duration of time when the specified 

ABC and ACL are effective. An FMP 

amendment or framework action that 

specifies carry-over for a stock or sector 

would include analysis of the relevant 

biological, economic, and social 

information necessary to meet the 

criteria and guidance of the ABC control 

rule. 

Following the conclusion of each 

fishing year, Council staff would notify 

the Council if any stocks and sectors for 

which carry-over is approved qualify 

based on the previous year’s landings, 

and may necessitate using preliminary 

landings estimates from the previous 

year if those landings data are not yet 

finalized. If a stock or sector qualifies 

for carry-over according to 

specifications of the ABC and annual 

landings meet criteria specified in the 


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ABC control rule, NMFS would 

implement carry-over of eligible 

landings from the previous year via a 

temporary rule published in the Federal 

Register through the existing FMP 

framework procedure and rulemaking 

process. 

The proposed carry-over procedure 

for eligible fish stocks or fishery sectors 

generally would not require additional 

advisory panel (AP) input or SSC 

recommendation, because input 

relevant to an ABC being approved with 

potential for carry-over would be part of 

the prior development process for the 

FMP amendment or framework in 

which the ABC and ACL for a stock or 

sector are already specified. Application 

of the carry-over procedure is expected 

to be routine and formulaic. 

The NMFS RA would review any 

Council recommendations for carry-over 

and supporting information. If the RA 

concurs that the Council’s 

recommendations are consistent with 

the objectives of the applicable FMP, the 

Magnuson-Stevens Act, and all other 

applicable law, the RA would be 

authorized to implement the Council’s 

proposed action through publication of 

appropriate notification in the Federal 

Register. 

If the Council chooses to deviate from 

the criteria and guidance of the 

proposed ABC control rules, this 

abbreviated process would not apply. 

Further details of the proposed 

process can be found in section 2.4.1 

and Appendix J of the ABC Control Rule 

Amendments. An example of the carryover can be found in Appendix H of the 

ABC Control Rule Amendments. 

The proposed process would allow 

carry-overs to occur in a more timely 

manner than that of an FMP amendment 

or framework action. A faster process is 

necessary due to the year-to-year nature 

of carry-overs. Under-harvest of an ACL 

may only be carried over in the 

immediate next year. Therefore, 

defining a stock’s eligibility and the 

amount of ACL being carried over must 

occur quickly enough such that the 

fishery has time to harvest the carried 

over amount within the fishing year 

following a year of under-harvest. The 

proposed process also provides the 

Council discretion in determining 

whether carry-over should be applied to 

a potentially eligible stock when setting 

the ABC and ACL. 

It is important to note that this 

proposed rule would not change current 

ABCs or ACLs for any species managed 

under the FMPs affected by the ABC 

Control Rule Amendments. 

Management Measures in the ABC 

Control Rule Amendments Not Codified 

by This Proposed Rule 

In addition to the measures within 

this proposed rule, the ABC Control 

Rule Amendments would modify the 

ABC control rules, allow the phasing in 

of ABC changes, and allow carry-over of 

unharvested portion of the ACL, for 

Snapper-Grouper, Golden Crab, and 

Dolphin and Wahoo FMPs. 

Modify the ABC Control Rules 

As discussed above, the current ABC 

control rule for the Snapper-Grouper 

FMP was revised by Amendment 29, 

and the Comprehensive ACL 

Amendment implemented the ABC 

control rules for the Golden Crab, and 

Dolphin and Wahoo FMPs in 2012. For 

assessed species, the current ABC 

control rules classify assessments 

according to level 1. Level 1 has tier 

classifications that determine the P* by 

reducing from an initial value of 50 

percent according to uncertainty of 

assessment results and stock 

vulnerability (risk tolerance). ABC is 

determined through projections of 

assessment information using the 

accepted probability of overfishing. For 

unassessed species, ABC is determined 

by levels 2 through 5, applying one of 

the following data-limited methods, as 

data allow (listed from highest to lowest 

priority): Depletion-Based Stock 

Reduction Analysis, DepletionCorrected Average Catch, Only Reliable 

Catch Stocks (only included in the 

Snapper-Grouper FMP as level 5), and a 

decision tree based on species catch 

history. Determination of ABC for 

overfished stocks undergoing rebuilding 

is not specified. Details on the control 

rule levels, tiers, and classifications are 

described in Table 2.1.1.1 of the ABC 

Control Rule Amendments. In summary, 

level 1 is assigned to assessed stocks 

and levels 1 through 4 are assigned to 

unassessed stocks for the Golden Crab, 

and Dolphin and Wahoo FMPs. Level 5 

is assigned to the applicable unassessed 

stocks in the Snapper-Grouper FMP. 

Level 1 has tiers that further 

quantitative classification and 

methodology to calculate the ABC based 

on life-history, catch history, scientific 

uncertainty, stock status, and 

productivity and susceptibility analysis 

(PSA). 

The proposed rule would modify the 

ABC control rules for the SnapperGrouper, Golden Crab, and Dolphin and 

Wahoo FMPs by categorizing stocks 

based on the available information, 

scientific uncertainty evaluation, and 

incorporation of the Council’s risk 

tolerance policy through an accepted 

P*. The Council would specify the P* 

based on relative stock biomass and a 

stock risk rating. When possible, the 

SSC would determine the OFL and 

characterize its uncertainty based 

primarily on the stock assessment and 

secondarily on the SSC’s expert 

opinion. The OFL and its uncertainty 

would then be used to derive and 

recommend the ABC, based on the risk 

tolerance specified by the Council. The 

detailed step-by-step procedure 

detailing how the ABC is derived for 

assessed stocks can be found in section 

2.1.1 of the ABC Control Rule 

Amendments. ABC for unassessed 

stocks would be recommended by the 

SSC based on applicable data-limited 

methods. Unassessed stocks would be 

assigned the moderate biomass level 

unless there is a recommendation from 

the SSC that justifies assignment of a 

different level. For overfished stocks, 

the Council would specify a stock 

rebuilding plan, considering 

recommendations from the SSC, and the 

AP of the respective FMP. The ABC 

enacted while the rebuilding plan is in 

effect would be based on 

recommendations from the Council’s 

SSC. The probability of success for 

rebuilding plans (1 minus P*) would be 

at least 50 percent. Control rule 

categories for assessments are described 

in detail in Table 2.1.1.2 of the ABC 

Control Rule Amendments. 

In summary, four categories would 

facilitate an ABC determination based 

on scientific uncertainty and SSC 

guidance. The Council, with advice 

from the SSC and AP, would evaluate 

management risk for each stock through 

a stock risk rating. Stock risk ratings 

include information currently used in 

the PSA, but also incorporate socioeconomic (for example, potential for 

discard losses, annual commercial 

value, recreational desirability, etc.) and 

environmental attributes (for example, 

climate change) (see Appendix E of the 

ABC Control Rule Amendments for 

more details). These recommendations 

would be revisited when new 

information becomes available (for 

example, a new stock assessment). The 

Council would then specify the risk 

rating as low, medium, or high risk of 

overfishing. A higher risk of overfishing 

would indicate that risk tolerance (i.e., 

the accepted probability of overfishing) 

should be lower. These stock risk 

ratings, along with relative biomass 

levels, would be used to determine the 

Council’s default risk tolerance for each 

stock. Default P* values based on 

relative biomass and stock risk rating 

are shown in Table 2.1.1.3 of the ABC 

Control Rule Amendments. As an 


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example, a stock with high biomass and 

medium stock risk rating would have a 

P* of 45 percent. This would be lower 

than the OFL, in accordance with 

Magnuson-Stevens Act. The SSC can 

recommend the Council reconsider the 

stock risk rating. This could happen, for 

example, with the emergence of new 

scientific studies or new information 

discovered through a stock assessment. 

The modified ABC control rules 

would also allow the Council to deviate, 

to a greater or lesser amount, from the 

default accepted probability of 

overfishing by up to 10 percent for an 

individual stock, based on its expert 

judgment, new information, or 

recommendations by the SSC or other 

expert advisors. Accepted probability of 

overfishing may not exceed 50 percent. 

Using a 50 percent probability of 

overfishing implies negligible scientific 

uncertainty and sets OFL equal to ABC. 

At P* equals 0.50, removals above ABC 

caused by deviations in biological 

parameters (for example, natural 

mortality (M), recruitment) could cause 

an overfishing determination and delay 

rebuilding plans. Therefore, adjusting 

P* above the value recommended by the 

SSC would be infrequent and well 

justified based on new scientific 

understanding and the Council’s risk 

tolerance. Additionally, when requested 

by the Council, the SSC would 

recommend the ABC for up to 5 years 

as both a constant value across years 

and as individual annual values for the 

same period of years. These options 

provide more flexibility to both the 

Council and SSC in the ABC 

determination. 

The proposed rule would not change 

the current ABC levels for any species 

managed under the Snapper-Grouper, 

Golden Crab, and Dolphin and Wahoo 

FMPs. Modifying the ABC control rules 

as proposed would give the SSC the 

ability to recommend adjusting or 

deriving uncertainty of future 

assessment results (ultimately impacting 

projections of future catch) if they 

determine uncertainty is not adequately 

estimated through information used in 

the assessment. Evaluation of risk 

tolerance would also be improved by 

considering factors beyond the current 

PSA and expanding the range of 

reference points used to describe and 

incorporate relative biomass. For 

unassessed stocks, the proposed 

modifications would expand the 

number of methods that could be 

considered for estimating OFL and ABC. 

The addition of economic factors in the 

ABC control rules would allow the 

Council to better consider the long-term 

economic implications when examining 

management risk which could lead to 

better economic outcomes and increase 

net economic benefits in a fishery for a 

given species. The inclusion of social 

factors in the ABC control rules would 

allow the Council to directly consider 

the importance of a given species to 

fishing communities and businesses 

when determining risk tolerance and 

would have long-term social benefits in 

the form of a more appropriate ABC. 

Allow the Phase-In of ABC Changes 

Currently, the phase-in of ABC 

changes is not allowed in the SnapperGrouper, Golden Crab, and Dolphin and 

Wahoo FMPs. The proposed rule would 

establish criteria specifying when the 

phase-in of ABC changes would be 

allowed and specify the approach for 

the phase-in of ABC changes. 

The proposed rule would allow the 

phase-in of increases to ABC as 

specified by the Council, with advice 

from the SSC and AP. Increases to ABC 

(assuming the presence of comparable 

data between assessments) are generally 

indicative of an increase in relative 

biomass and improving stock condition. 

This allows greater consideration of 

ecological, social, and economic effects 

of an increased ABC, and increased 

flexibility in how that change can be 

implemented. Because ABCs during an 

increasing phase-in would be less than 

those initially recommended by the 

SSC, the phase-in period is not limited 

(i.e., it can exceed the maximum 

timeframe specified for the phase-in 

decreases). The Council may specify 

ABC to be less than the SSC’s 

recommended ABC, but it may not 

exceed the SSC’s recommendation. 

Phasing in an ABC increase would set 

ABC below the SSC’s recommendation. 

If the phase-in is included in projections 

used to develop the SSC’s ABC 

recommendation, there also may be an 

increase to the recommended long-term 

ABC (i.e., the ABC that persists after the 

phase-in is complete). Thus, phasing in 

increases to ABC over a longer time 

period could result in a greater increase 

to long-term ABC, and phasing in 

increases over a shorter period could 

result in a smaller increase to long-term 

ABC. 

The proposed rule would allow the 

phase-in of decreases to ABC when a 

new ABC is less than 80 percent of the 

existing ABC, and over a period not to 

exceed 3 years, which is the maximum 

phase-in period allowed by the NS1 

guidelines. The criterion requiring a 

minimum threshold of difference 

between the current and new ABCs to 

be 20 percent defines a significant 

enough change to merit phasing in the 

change and is more flexible than other 

minimum threshold levels considered 

in the ABC Control Rule Amendments. 

Phase-ins may be used regardless of the 

stock relative biomass. The Council 

would consider whether to apply a 

phase-in on a case-by-case basis when 

specifying a stock ABC through an 

amendment after a new ABC has been 

recommended by the SSC. A longer 

phase-in period provides more 

flexibility and allows a more gradual 

change from the existing ABC to the 

new ABC. 

The phase-in of the ABC is an option 

the Council can consider to address the 

social and economic effects from 

management changes. Adopting this 

flexibility does not require the Council 

to phase in all ABC changes, nor does 

adopting one approach prevent the 

Council from choosing a more 

restrictive schedule of ABC phase-ins 

(less than 3 years). When considering 

whether to phase in an ABC change, the 

Council would compare the risk to the 

stock against the expected social and 

economic benefits of the alternative 

ABC. Management strategy evaluations 

may be used to quantify such trade-offs. 

The Council would be able to consult 

with its scientific and fishery advisors 

to help develop a rationale and 

implementation plan for phase-ins. The 

proposed phase-in of ABC changes is 

consistent with the NMFS 2020 

guidance and incorporates flexibility as 

per the revised NS1 guidelines into the 

FMPs for Snapper-Grouper, Golden 

Crab, and Dolphin and Wahoo. 

Allow Carry-Over of Unharvested 

Portion of ACLs 

Currently, carry-over of unharvested 

portion of ACLs is not allowed in the 

Snapper-Grouper, Golden Crab, and 

Dolphin and Wahoo FMPs. The 

proposed rule would establish criteria 

specifying circumstances when an 

unharvested portion of the originally 

specified sector ACL can be carried over 

from 1 year to increase the available 

harvest in the immediate next year. 

Carry-overs may not be delayed, and 

only amounts from the originally 

specified sector ACL may be carried 

over. Carry-over of the unharvested 

portion of a sector ACL would be 

allowed if: 

(1) The stock status is known; 

(2) The stock is neither overfished nor 

experiencing overfishing; 

(3) An overfishing limit for the stock 

is defined; 

(4) ABC decreases are not being 

phased-in; 

(5) There are measures that restrict 

annual landings to the ACL; and 

(6) The post-season AM that reduces 

the ACL in the following year according 


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to any landings overages is in place for 

that stock and sector. 

The proposed rule would also specify 

limits on how much of the unharvested 

portion of a sector ACL may be carried 

over from 1 year to increase the sector 

ACL in the next year. The ABC and the 

total ACL may be temporarily increased 

to allow this carry-over. The temporary 

ABC may not exceed the OFL. The 

revised total ACL may not exceed the 

temporary ABC or the total ACL plus 

the carried over amount, whichever is 

less. If a stock experiences overfishing, 

either as the result of a stock assessment 

or as determined by NMFS’ annual 

evaluation of landings, that stock would 

no longer qualify for carry-over. 

Additional conditions to annually 

qualify for carry-over can be added on 

a stock-by-stock basis. For example, to 

prevent overharvest of other species 

commonly caught with the target 

species (referred to as co-caught species) 

during years with a carried-over ACL, a 

future FMP amendment specifying an 

ABC and ACL with carry-over could 

additionally require that the previous 

year’s harvest for co-caught species also 

be less than or equal to the ACL for 

carry-over to occur. When applicable, 

the Council would specify whether 

fisheries that have split seasons or subsector allocations (such as gear 

allocations) should be eligible for interannual carry-over on a case-by-case 

basis. 

Carry-overs would also be sectorspecific. The Snapper-Grouper and 

Dolphin and Wahoo FMPs have both 

commercial and recreational sectors 

whereas the Golden Crab FMP includes 

only a commercial sector. Thus, if only 

one sector is carrying over unused ACL, 

the carried-over amount would be 

allocated only to that sector, subject to 

limitations defined above. If more than 

one sector is carrying over unused ACL 

in the same year, each sector carry-over 

amount would be completely allocated 

to the sector from which it was derived, 

unless the sum of all carry-over amounts 

plus the specified total ACL is greater 

than the OFL. In this case, the difference 

between the temporary revised ABC and 

the specified total ACL would be 

allocated using sector allocation 

percentages specified by the FMP. A 

revised sector ACL and revised ABC 

would remain in place for a single 

fishing year. Following a year that 

included carry-over, evaluations of 

carry-over amounts for future years 

would be based on the ABC and sector 

ACLs specified by the FMP rather than 

on the temporarily revised values. 

The proposed carry-over criteria and 

conditions are consistent with the 

NMFS 2020 guidance. The proposed 

carry-over criteria and conditions would 

also make carry-over applicable to only 

a few stocks managed by the Council 

under the Snapper-Grouper FMP at the 

time this action was developed. 

However, allowing carry-over does 

fulfill Federal guidance on carry-overs 

that requires allowance of this 

management tool to be included in an 

FMP, and provide additional 

management flexibility to better enable 

harvest of optimum yield of a healthy 

stock. 

Proposed Changes to Codified Text Not 

in the ABC Control Rule Amendments 

NMFS proposes to clarify existing 

regulations in 50 CFR 622.194(a) about 

the scope of allowable management 

changes using the framework procedure 

in the Snapper-Grouper FMP. 

Specifically, NMFS proposes to clarify 

allowable changes via framework to 

EFH, EFH HAPCs, and coral HAPCs. 

In 2000, NMFS implemented two 

final rules that updated the SnapperGrouper FMP framework procedures to 

include EFH, EFH HAPCs, and coral 

HAPCs that enabled more timely 

implementation of subsequent 

management measures than is possible 

via an FMP amendment (65 FR 37292, 

June 14, 2000; 65 FR 51248, August 23, 

2000). Since NMFS implemented those 

final rules, no other subsequent 

rulemaking affected the framework 

procedure for EFH, EFH HAPCs, and 

coral HAPCs. Specifically, and along 

with other actions, the referenced final 

rules implemented Council 

recommendations to allow for the 

establishment of or modifications to 

EFH habitat areas of particular concern 

(HAPCs) or coral HAPCs via framework 

procedure. However, existing 

regulations appear more generally. 

Further, regulations state both 

‘‘definitions of EFH’’ and ‘‘EFH,’’ and 

these could be interpreted as 

duplicative. 

NMFS has determined the allowable 

changes via framework action in the 

regulations could more clearly describe 

the existing parameters for EFH, EFH 

HAPCs, and coral HAPCs. Accordingly, 

NMFS proposes to revise § 622.194(a) 

without changing the Council’s original 

management recommendations. 

Classification 

Pursuant to section 304(b)(1)(A) of the 

Magnuson-Stevens Act, the NMFS 

Assistant Administrator has determined 

that this proposed rule is consistent 

with the amendment, the SnapperGrouper, Golden Crab, and Dolphin and 

Wahoo FMPs, other provisions of the 

Magnuson-Stevens Act, and other 

applicable law, subject to further 

consideration after public comment. 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

The Magnuson-Stevens Act provides 

the legal basis for this proposed rule. No 

duplicative, overlapping, or conflicting 

Federal rules have been identified. A 

description of this proposed rule, why 

it is being considered, and the purposes 

of this proposed rule are contained in 

the SUMMARY and SUPPLEMENTARY

INFORMATION sections of the preamble. 

The objectives of this proposed rule are 

to ensure catch level recommendations 

are based on the best scientific 

information available, prevent 

overfishing while achieving OY, and 

include flexibility in setting catch limits 

as allowed by the Magnuson-Stevens 

Act and in accordance with NMFS’ 

guidance on carry-over and phase-in 

provisions. 

The Chief Counsel for Regulation of 

the Department of Commerce has 

certified to the Chief Counsel for 

Advocacy of the Small Business 

Administration that this proposed rule, 

if adopted, will not have a significant 

economic impact on a substantial 

number of small entities. A description 

of the factual basis for this 

determination follows. 

This proposed rule, if implemented, 

would revise the ABC control rules and 

framework procedures in the SnapperGrouper FMP, Golden Crab FMP, and 

Dolphin and Wahoo FMP. Specifically, 

this proposed rule would revise the 

ABC control rules to better distinguish 

the roles of the Council and its SSC in 

determining risk and uncertainty 

components, include provisions for 

phasing in ABC changes, include 

provisions for carrying over unharvested 

portions of ACLs, and revise framework 

procedures to include a procedure for 

implementing carry-overs when 

allowance of carry-over is specified in 

the FMP and the sector meets annual 

eligibility requirements. Even though 

this proposed rule would alter the 

existing regulations to allow for the 

possibility for transfer of an unharvested 

total or sector-specific ACL to the 

following fishing year, it would not 

implement any new management 

measures. As such, this proposed rule 

would not regulate any small entities. 

Because this proposed rule, if 

implemented, is not expected to directly 

regulate any small entities, it is not 

expected to affect a substantial number 

of small entities. Further, because no 

entities are expected to be directly 

affected by this proposed rule, the 

profits of small entities are also not 

expected to change and thus no 


lotter on DSK11XQN23PROD with PROPOSALS1
67726 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 

economic impacts on small entities are 

expected. 

Because this proposed rule, if 

implemented, would not have a 

significant economic impact on a 

substantial number of small entities, an 

initial regulatory flexibility analysis is 

not required and none has been 

prepared. 

This proposed rule contains no 

information collection requirements 

under the Paperwork Reduction Act of 

1995. 

List of Subjects in 50 CFR Part 622 

Atlantic, Fisheries, Fishing, South 

Atlantic. 

Dated: September 26, 2023. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, NMFS proposes to amend 50 

CFR part 622 as follows: 

PART 622—FISHERIES OF THE 

CARIBBEAN, GULF OF MEXICO, AND 

SOUTH ATLANTIC 

■ 1. The authority citation for part 622 

continues to read as follows: 

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

■ 2. In § 622.194, revise paragraph (a) to 

read as follows: 

§ 622.194 Adjustment of management 

measures. 

* * * * * 

(a) Biomass levels, age-structured 

analyses, target dates for rebuilding 

overfished species, maximum 

sustainable yield (or its proxy), 

optimum yield, acceptable biological 

catch, total allowable catch, quotas 

(including a quota of zero), annual catch 

limits, annual catch targets, 

accountability measures, maximum 

fishing mortality threshold, minimum 

stock size threshold, trip limits, bag 

limits, size limits, gear restrictions 

(ranging from regulation to complete 

prohibition), seasonal or area closures, 

fishing year, rebuilding plans, 

definitions of essential fish habitat 

(EFH), establishment of or modifications 

to EFH habitat areas of particular 

concern (HAPCs) or coral HAPCs, 

restrictions on gear and fishing activities 

applicable in EFH and EFH HAPCs, 

establish or modify spawning SMZs, 

and allow transfer of the unharvested 

total or sector ACL to the following 

fishing year. 

* * * * * 

■ 3. In § 622.252, revise paragraph (a) to 

read as follows: 

§ 622.252 Adjustment of management 

measures. 

* * * * * 

(a) Biomass levels, age-structured 

analyses, maximum sustainable yield, 

acceptable biological catch, total 

allowable catch, quotas (including 

quotas equal to zero), trip limits, 

minimum sizes, gear regulations and 

restrictions, permit requirements, 

seasonal or area closures, sub-zones and 

their management measures, time frame 

for recovery of golden crab if overfished, 

fishing year (adjustment not to exceed 2 

months), observer requirements, 

authority for the Regional Administrator 

to close the fishery when a quota is 

reached or is projected to be reached, 

definitions of essential fish habitat 

(EFH), EFH habitat areas of particular 

concern (HAPCs), or coral HAPCs, and 

allow transfer of the unharvested ACL to 

the following fishing year. 

* * * * * 

■ 4. In § 622.281, revise paragraph (a) to 

read as follows: 

§ 622.281 Adjustment of management 

measures. 

* * * * * 

(a) Biomass levels, age-structured 

analyses, maximum sustainable yield, 

optimum yield, overfishing limit, total 

allowable catch, acceptable biological 

catch (ABC), ABC control rule, annual 

catch limits, annual catch targets, 

accountability measures, trip limits, 

minimum sizes, gear regulations and 

restrictions, permit requirements, 

seasonal or area closures, sub-zones and 

their management measures, overfishing 

definitions and other status 

determination criteria, time frame for 

recovery of Atlantic dolphin or wahoo 

if overfished, fishing year (adjustment 

not to exceed 2 months), authority for 

the Regional Administrator to close a 

fishery when a quota is reached or is 

projected to be reached or reopen a 

fishery when additional quota becomes 

available, definitions of essential fish 

habitat (EFH), EFH habitat areas of 

particular concern (HAPCs), or coral 

HAPCs, and allow transfer of the 

unharvested total or sector ACL to the 

following fishing year. 

* * * * * 

[FR Doc. 2023–21738 Filed 9–29–23; 8:45 am] 

BILLING CODE 3510–22–P 


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