[Federal Register Volume 89, Number 190 (Tuesday, October 1, 2024)]
[Rules and Regulations]
[Pages 79778-79783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22233]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 240924-0251]
RIN 0648-BL45


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Amendment 23 
to the Summer Flounder, Scup, and Black Sea Bass Fishery Management 
Plan

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

ACTION: Final rule.

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SUMMARY: This action implements the approved trigger for the in-season 
closure accountability measure contained in Amendment 23 to the Summer 
Flounder, Scup, and Black Sea Bass Fishery Management Plan. Amendment 
23 was developed by the Mid-Atlantic Fishery Management Council in 
conjunction with the Atlantic States Marine Fisheries Commission to 
address the allocation-related impacts of the significant changes in 
the distribution of black sea bass that have occurred since the 
original allocations were implemented. This rule implements a measure 
that allows a buffer before triggering a closure to the coastwide 
commercial fishery to address negative economic impacts of coastwide 
closures on states that have not fully harvested their commercial black 
sea bass state allocations.

DATES: Effective January 1, 2025.

ADDRESSES: Copies of Amendment 23, including the Environmental 
Assessment, the Regulatory Impact Review, and the Regulatory 
Flexibility Analysis prepared in support of this action are available 
from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery 
Management Council, Suite 201, 800 North State Street, Dover, DE 19901. 
The supporting documents are also accessible via the internet at: 
https://www.mafmc.org/actions/bsb-commercial-allocation.

FOR FURTHER INFORMATION CONTACT: Emily Keiley, Fishery Policy Analyst, 
(978) 281-9116, <a href="/cdn-cgi/l/email-protection#4f2a2226233661242a26232a360f21202e2e61282039"><span class="__cf_email__" data-cfemail="86e3ebefeaffa8ede3efeae3ffc6e8e9e7e7a8e1e9f0">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    The Mid-Atlantic Fishery Management Council (Council) and the 
Atlantic States Marine Fisheries Commission (Commission) cooperatively 
manage the black sea bass fishery. Amendment 23 considered changes to 
the management of the commercial black sea bass fishery. Specifically, 
Amendment 23 considered:

    1. Adjusting the commercial black sea bass state allocations;
    2. Adding the state allocations and payback provisions to the 
Federal fishery management plan (FMP) and regulations; and,
    3. Changes to the Federal in-season closure regulations for 
black sea bass.

    The Council and the Commission's Black Sea Bass Board (Board) 
initially approved their respective amendment and addendum during a 
joint meeting on February 1, 2021. However, in response to a remand 
from the Commission's Policy Board, the two management bodies revisited 
their previous recommendations and voted to revise the commercial state 
quota allocations. A notice of availability (NOA) for the amendment was 
published in the Federal Register on May 4, 2023 (88 FR 28456), with a 
comment period ending on July 3, 2023. NMFS published a proposed rule 
in the Federal Register on May 15, 2023 (88

[[Page 79779]]

FR 30938), with a comment period ending on June 14, 2023.
    When a Council approves and then transmits an FMP or amendment to 
NMFS, NMFS publishes an NOA in the Federal Register announcing a 60-day 
comment period. Within 30 days of the end of the comment period, NMFS 
must approve, disapprove, or partially approve the plan or amendment 
based on consistency with law. After considering public comment on the 
NOA and proposed rule, NMFS partially approved Amendment 23 on August 
2, 2023. This final rule implements the approved management measure in 
Amendment 23 regarding the in-season closure trigger. The details of 
the development of the measures in Amendment 23 were described in the 
NOA and proposed rule, and are not repeated here.

Approved Measure

Federal Commercial In-Season Closure Trigger

    Previously, the Federal FMP required a commercial coastwide in-
season closure for all federally permitted vessels and dealers, 
regardless of state, once the coastwide quota was projected to be 
landed. This amendment changes the trigger so that the closure will 
occur once landings are projected to exceed the coastwide quota plus an 
additional buffer of up to 5 percent. The Council and Board will agree 
to the appropriate buffer and make a recommendation to NMFS for the 
upcoming year through the specifications process. The Council's 
Monitoring Committee and the Commission's Technical Committee would 
provide advice on the appropriate buffer based on considerations such 
as stock status, the quota level, and recent fishery trends.
    This change is being implemented to help minimize the negative 
economic impacts of coastwide closures on states that have not fully 
harvested their allocations. It is not expected to create an incentive 
for quota overages because the Commission's Interstate FMP would still 
require states to close when their state-specific quotas are reached 
and to pay back quota overages.

Disapproved Measures

    Our review of Amendment 23 concluded that the record supporting the 
Council's recommendations did not support a decision to approve 
incorporating the state-by-state allocations into the Federal FMP and 
regulations. By virtue of their reliance on the state allocations, the 
proposed state payback provisions and the state allocation formula were 
also disapproved. Specifically, NMFS concluded that the disapproved 
provisions of Amendment 23 are not consistent with:
    <bullet> National Standard 4, which requires fishery conservation 
and management measures to avoid discrimination between residents of 
different states and to allocate or assign fishing privileges among 
various United States fishermen in a manner that is fair and equitable 
to all such fishermen, reasonably calculated to promote conservation, 
and carried out in such manner that no particular individual, 
corporation, or other entity acquires an excessive share of such 
privileges;
    <bullet> National Standard 5, which requires that fishery 
conservation and management measures, where practicable, consider 
efficiency in the utilization of fishery resources and not have 
economic allocations as their sole purpose;
    <bullet> National Standard 6, which requires fishery conservation 
and management measures to take into account and allow for variations 
among, and contingencies in, fisheries, fishery resources, and catches; 
and
    <bullet> National Standard 7, which requires fishery conservation 
and management measures, where practicable, to minimize costs and avoid 
unnecessary duplication.

Council Management of State Allocations

    Amendment 23 proposed adding the commercial fishery state-by-state 
quota allocations to the Federal FMP and regulations. This change would 
have increased the administrative burden and cost of monitoring state 
quotas and processing state quota transfers for NMFS and the states, 
without providing a conservation benefit. Adding the allocations to the 
Federal FMP would have also required a joint action of the Council and 
Commission to make changes to the state-by-state allocations in the 
future.

Overages and State Payback Requirements

    Under the Commission's Interstate FMP, overages of state-specific 
quotas are required to be paid back by a state when the coastwide quota 
has been exceeded. If the state allocations were included in the 
Federal FMP, the Council and Black Sea Bass Board's preferred 
alternative was to implement this payback provision in the Federal 
regulations. NMFS disapproved the incorporation of the state payback 
provision in the Federal FMP, as it is not necessary given our 
disapproval of incorporating the state allocations in the Federal FMP. 
However, the Commission's use of this payback process is not affected 
by our decision with regard to the Federal FMP.

Commercial State Allocation Formula

    This joint action considered changes to the allocation formula for 
the distribution of commercial black sea bass quota among the states. 
The Commission adopted and implemented a new allocation formula in its 
Interstate FMP, and the Council recommended that NMFS approve and 
implement the same allocation approach in the Federal FMP. Because NMFS 
disapproved the state-by-state allocations as a measure in the Federal 
FMP and regulations, it is not necessary to incorporate an allocation 
formula in the Federal FMP, so it was also disapproved.

Comments and Responses

    NMFS received 14 comments in response to the NOA and the proposed 
rule. Seven individuals submitted comments that were not germane to the 
alternatives in the proposed rule; their comments focused on state 
management measures, individual state allocations, the effects of 
offshore wind farms, and quotas. One individual commercial fisherman 
generally opposed the proposed amendment as making things more 
complicated and worse for fishermen. The comments relevant to the 
proposed action focused on five general topics regarding the addition 
of the state commercial allocations to the Federal FMP: The burden on 
NMFS and the affected state fishery management agencies; the perceived 
benefits of the action; the National Standards of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act); 
encumbering the process to adjust allocations; and state representation 
issues, including addressing climate change.

Administrative Burden

    Comment 1: Three commenters suggested that the administrative 
burden of adding the state allocations would be minor or would be 
mitigated by using processes developed for other fisheries. One 
commenter also suggested that this shift would reduce the burden on the 
Commission to manage state quotas.
    Response: While NMFS does manage some species' commercial quotas 
(e.g., summer flounder) at a state level, adding black sea bass state 
quota management would require additional resources (time and staff) to 
conduct all of the necessary tasks. Adding the state commercial 
allocations in the Federal FMP would require NMFS to monitor

[[Page 79780]]

the landings of commercial quotas at a state-by-state level--as opposed 
to overall coastwide landings--throughout the season, implement state 
closures when triggered, and manage all quota transfers between states. 
The increased workload on NMFS staff would reduce agency capacity for 
other priorities.
    This change would also reduce efficiency by requiring the states to 
request transfers from NMFS in addition to the Commission and wait for 
NMFS's approval before the transfers are effective. This is not merely 
a shift in administrative burden. Rather, it increases the 
administrative burden for both NMFS and the states without eliminating 
the administrative burden for the Commission. The Commission is 
unlikely to end its practice of monitoring transfers and posting them 
on its website, so states would continue to bear the burden of the 
Commission's state management processes, along with the added 
requirement to submit transfer requests to NMFS. Comments from the 
Massachusetts Division of Marine Fisheries (MADMF) and the Rhode Island 
Department of Environmental Management (RIDEM) also noted these 
concerns (see Comment 2).
    Comment 2: Comments from RIDEM and MADMF stated that including the 
state commercial black sea bass allocation in the Federal FMP would 
increase the administrative burden for NMFS and create additional 
complications for the states. MADMF noted that state and Federal 
closures for species such as bluefish and summer flounder have not 
always aligned. MADMF states that ``. . . Landings data and projections 
often differ between state and Federal monitoring, as does the time 
requirement for [MADMF] and NMFS to close a fishery. [MADMF's] frequent 
and direct outreach to dealers as quotas near full utilization 
generally allows for more accurate landings tallies and projections, 
which [MADMF] can respond to nimbly. [MADMF's] ability to close a 
fishery within 24 hours is not matched by NMFS.'' These differences can 
result in different closure dates and different impacts to state and 
Federal permit holders.
    Response: NMFS agrees with these comments and has disapproved the 
addition of the commercial state black sea bass allocations to the 
Federal FMP.
    Comment 3: One commenter highlighted that the restrictions on late-
season transfers due to the Federal rulemaking process would have 
minimal impacts and would not justify disapproving the addition of the 
state allocations to the Federal FMP.
    Response: The Commission currently allows transfers at any time up 
to 45 days after the last day of the fishing season. If NMFS were to 
manage transfers under the same process currently used for summer 
flounder and bluefish, transfers in the last 2 weeks of the year would 
only be allowed for unforeseeable circumstances such as vessel failure 
or bad weather. Post-season transfers would not be allowed. NMFS does 
not disagree that the impact of this particular restriction would be 
relatively small. However, the magnitude of this potential impact does 
not change our determination that adding the state allocations to the 
Federal FMP is inconsistent with the National Standards (see 
Disapproved Measures). This decision was based on a holistic review of 
the amendment and its consistency with the Magnuson-Stevens Act. It did 
not hinge on the impact of post-season transfer limitations.

Perceived Benefits

    Comment 4: Four commenters disagreed with our statement that there 
is no clear benefit from adding the state allocations to the Federal 
FMP, arguing that this change provides a greater level of Federal 
oversight, protection, and accountability. They stated that any changes 
to the allocations would be made through the Council process, which is 
thorough, transparent, and bound by the Magnuson-Stevens Act, National 
Environmental Policy Act (NEPA), and other applicable laws. According 
to these comments, the Commission process does not always provide the 
same safeguards.
    Response: The Council and Commission have successfully co-managed 
black sea bass quotas through a two-tiered system since 2003, with the 
state quotas managed through the Commission's Interstate FMP and the 
overall coastwide quota managed by the Council and NMFS. While the 
Interstate FMP is not bound by the Magnuson-Stevens Act and the Federal 
rulemaking process, the Commission process is not without its own legal 
requirements and safeguards. The Atlantic Coastal Fisheries Cooperative 
Management Act (Atlantic Coastal Act) requires the Commission to manage 
fisheries throughout their range based on the best available science 
and with adequate opportunity for public participation and to establish 
adequate standards and procedures to do so. In compliance with the 
Atlantic Coastal Act, the Commission process is bound by the ``Atlantic 
States Marine Fisheries Commission Compact and Rules and Regulations'' 
and ``Interstate Fishery Management Program Charter.'' Under the 
Charter, the Commission's management must meet conservation and equity 
requirements. When states believe a Commission decision has not met 
these requirements, the Commission provides a formal appeals process.
    Further, the Council manages the Federal black sea bass fishery 
with all of the safeguards and requirements of the Magnuson-Stevens 
Act, NEPA, and other applicable laws. This includes oversight of the 
various catch limits designed to prevent overfishing, which are 
established through a joint process with the Commission. The coastwide 
commercial quota addresses the conservation requirements of the 
Magnuson-Stevens Act, and when state quota overages could result in a 
coastwide overage, NMFS has the authority to close the entire fishery 
to prevent overfishing. Duplication of the state commercial allocations 
in the Federal FMP will not further any conservation benefit because 
the allocations are already in place and successfully managed through 
the Interstate FMP and the Federal regulations and specifications 
process are sufficient to address coastwide overages.
    Comment 5: One commenter argued, ``If this management plan remained 
within the [Commission], there would be no ability for any New York 
commercial fisherman to contest any portion of it by judicial review, 
because it is not considered an agency of the Federal government.'' The 
commenter believed including the state commercial allocations in the 
Federal FMP would allow better redress.
    Response: While the Commission is not a Federal agency, it provides 
a venue for deciding issues of interstate fishery management with equal 
representation of all interested states. As noted in response to 
Comment 4, the Commission is guided by the ``Atlantic States Marine 
Fisheries Commission Compact and Rules and Regulations'' and 
``Interstate Fishery Management Program Charter.'' States can appeal 
Commission decisions through a formal appeals process when the decision 
is inconsistent with the rules and regulations, the Charter, the 
Commission's other guiding documents, or the goals and objectives of 
the Interstate FMP; is based on insufficient technical information; or 
results in unforeseen impacts. The appeals process may result in 
corrective action, providing a process for redress for Commission 
decisions. The efficacy of this appeals process is demonstrated by New 
York's successful appeal of the

[[Page 79781]]

Commission's changes to the black sea bass state allocations, which 
resulted in an increase to New York's proportion of the black sea bass 
commercial quota. In addition, interested parties still have the option 
to contest Federal management measures developed through the joint 
management process described in response to Comment 4 pursuant to the 
Magnuson-Stevens Act's judicial review provisions.
    Comment 6: One commenter stated that adding the state commercial 
allocations to the Federal FMP would provide the benefit of bringing 
the allocations in line with ``most other aspects of the management 
program.''
    Response: The Council and the Commission have successfully co-
managed the black sea bass fishery for decades, as described in 
response to Comment 4.
    Most aspects of the management program have implications for the 
coastwide fishery and are addressed in the Federal FMP. However, 
subdividing the coastwide commercial quota into state-specific 
allocations directly affects fishing opportunities at the state level 
and is an issue of interstate fishery management. The Commission 
provides a venue for interstate management decision-making with 
representation from all of the Atlantic states. States may join the 
management boards for any species in which they have an interest. 
Conversely, the Magnuson-Stevens Act determines state representation on 
the Council. As a result, the limited representation on the Council 
poses a challenge when making allocation decisions that directly affect 
the states. Continued changes in the stock distribution toward states 
that are not represented on the Council would exacerbate these 
challenges. Adding the allocations to the Federal FMP to make them 
consistent with other co-managed elements of the FMP would fail to 
recognize the unique, state-oriented nature of allocation decisions and 
the Commission's lead role in interstate fisheries management and would 
not further any conservation objective.

Future Allocation Decisions and the National Standard Requirements

    Comment 7: Two commenters contended that the NOA speculates ``about 
future actions involving `potentially inadequate consideration of 
northern states' fisheries' '' without evidence in the administrative 
record to support such speculation, particularly ``without providing 
any examples of actual present-day outcomes harming any particular 
state.'' These commenters go on to note that future allocations would 
need to meet the requirements of the Magnuson-Stevens Act, including 
the requirement under National Standards 4 and 6 (described under 
Disapproved Measures) and National Standard 8--that measures provide 
for the sustained participation of all fishing communities. The second 
of these commenters argued that the current commercial state 
allocations were agreed on by the Council and Board and reflect recent 
biomass proportions. The commenter did not understand how the same 
decision-making process could potentially result in unfair outcomes in 
the future because the Council and Board work together to achieve 
consensus on joint actions and differing decisions between the two 
bodies are rare.
    Response: The commenters are correct that NMFS cannot approve any 
changes to the Federal FMP that do not meet the requirements of the 
National Standards. While NMFS has concerns that adding the state 
allocations to the Federal FMP would result in an inequitable 
allocation process because not all interested states are represented on 
the Council, NMFS did not disapprove the changes based on future 
decisions being inconsistent with the National Standards. NMFS 
disapproved the addition of the state allocations in the Federal FMP 
because that action lacked conservation benefits, reduced management 
efficiency, lacked adaptability to variations and contingencies, 
increased costs, and unnecessarily duplicated management measures, 
which is inconsistent with National Standards 4, 5, 6, and 7.

State Representation, Fairness, and Equity

    Comment 8: MADMF agreed with NMFS that equity of representation is 
vitally important to the particular issue of state-by-state 
allocations. Its comment provided additional context and an example of 
how the vote to add the state allocations to the Federal FMP resulted 
in unequal representation among the states. After an initial motion was 
made and seconded by participants of both the Council and Board, a 
substitute motion not to add the state allocations to the Federal FMP 
was made and seconded by northern-state and NMFS representatives. The 
Council voted first, and the majority of Council members voted against 
the substitute motion. Without the Commission membership from New 
Hampshire through North Carolina being able to affirm their position, 
the substitute motion failed. The main motion received a passing vote 
from the Commission on a slim margin after the substitute motion failed 
in the Council vote and another option was not available. The Council 
and Commission voted along a geographical divide, with the northern 
states voting against the allocations in the Federal FMP. This 
illustrates that the limited representation on the Council by all 
states with an interest in the fishery poses a challenge when making 
state allocation decisions.
    The Commission includes representation from all Atlantic states and 
provides an equitable process when making changes to commercial state 
allocations. MADMF asserted that the Commission, where every coastal 
state with an interest in a species is represented, is the more 
appropriate venue for determining state allocations.
    Response: NMFS agrees that limited representation by all states in 
the Council poses a challenge in state allocation decisions and that 
the Commission, which includes representations from all Atlantic 
states, provides a more equitable process in commercial state 
allocations.
    Comment 9: Two commenters asserted that the joint decision-making 
process is fair and equitable and that the states on the Council do not 
have a disproportionate role in the decision-making process. The 
commenters disagreed with the assertion that the lack of voting 
representation from the New England states on the Council creates 
``inequity in representation'' in the joint decision-making process. 
These commenters believed that the special voting procedures and the 
broader representation on the Board make up for the lack of northern 
states' representation on the Council.
    Response: A different comment letter from MADMF disputed these 
comments, as summarized in Comment 8. As one of the states in question 
and with authority on the matter, MADMF argued that the special voting 
procedures are not equivalent to full representation and that adding 
the state allocations to the Federal FMP would not result in an 
equitable allocation process. NMFS agrees with MADMF.
    Comment 10: One commenter argued against concerns that the northern 
states' lack of representation on the Council has implications 
regarding the National Standard requirements and equity, stating that 
the Mid-Atlantic states lack representation on the New England Fishery 
Management Council and are regulated on groundfish, whiting, and 
scallops without representation. The commenter asserted that joint 
decision-making between the Council and the Commission, which 
represents all coastal states, has worked for other fisheries.

[[Page 79782]]

    Response: NMFS agrees that co-management works here--the Council 
and the Commission successfully co-manage the black sea bass fishery. 
As previously described, the Council and Commission specifications 
processes establish annual coastwide catch limits and the Commission 
manages the commercial state allocations through the Interstate FMP 
because the state allocations have a direct impact on fishing 
opportunities at the state level. This co-management process provides 
equitable representation and greater flexibility because it does not 
require Council action in addition to Commission action to change the 
state allocations. This is particularly relevant in the black sea bass 
fishery, as it is foreseeable that black sea bass could become a 
commercially viable species as far north as Maine due to the ongoing 
and expected changes in the distribution of the black sea bass stock 
from the effects of climate change. The successful management of other 
species using different processes does not negate these facts nor the 
history of successful co-management of the black sea bass fishery. 
Furthermore, the fisheries referenced in the comment--groundfish, 
whiting, and scallops--are not managed with state-by-state quota 
allocations, but with a coastwide quota. This is consistent with the 
Federal management of the black sea bass fishery.
    Comment 11: Three commenters argued that the Council should have a 
more substantive role in the allocation-setting process because the 
majority of commercial black sea bass landings come from Federal 
waters.
    Response: The Council plays a significant role in black sea bass 
management, with coastwide management measures set in the Federal FMP 
through the Council process, as previously described. State quota 
allocations have a direct impact on fishing opportunities at the state 
level. Given the lack of northern state representation on the Council, 
the commercial quota state allocations are appropriately managed 
through the Commission's Interstate FMP. While adding the state 
allocations to the Federal FMP would not eliminate the Commission's 
role in the process, a comment letter from MADMF provides evidence that 
the special voting procedures used during joint decision-making do not 
necessarily result in equal representation of all states with 
commercial quota allocations, as described in Comment 8.
    In addition, adding the state commercial quota allocations to the 
Federal FMP would then require NMFS to manage the state allocations, 
which would increase costs, reduce efficiency, and add complexity, as 
described throughout the comments and responses. The Commission's equal 
representation of all impacted states and the increased efficiency, 
timeliness, and reduced administrative burden for in-season monitoring 
activities support maintaining the Commission's primary role in this 
aspect of black sea bass management, with the Council maintaining the 
lead role in coastwide management.

Climate Impacts

    Comment 12: One commenter contended that climate concerns are not 
unique to the black sea bass fishery and the Council manages other 
fisheries with changing distributions and geographic ranges beyond its 
member states. It noted that the Council is required to manage stocks 
as a unit throughout their range to the extent practicable under 
National Standard 3. The commenter was not aware of any provision under 
the Magnuson-Stevens Act or other applicable laws that would preclude 
the incorporation of state allocations in the Council FMP.
    Response: While climate impacts are a concern for a number of 
fisheries, this action considers the management of black sea bass. 
Under the requirements of National Standard 3, the Council is required 
to manage the black sea bass stock as a unit throughout its range and 
does so when it sets coastwide management measures under the Federal 
FMP. These coastwide limits, including the commercial quota, satisfy 
the requirements of National Standard 3. However, inconsistencies with 
the requirements under National Standards 4, 5, 6, and 7 do preclude 
the addition of the state allocations to the Federal FMP. These 
inconsistencies are described under Disapproved Measures and throughout 
the comments and responses in this document.
    Comment 13: One commenter claimed that formalizing the Council's 
role in the state commercial allocation-setting process would increase 
the Council's adaptive capacity and ability to respond to changes in 
the black sea bass fishery efficiently, thus supporting the goal of 
building resilient, climate-ready fisheries.
    Response: Amendment 23 does not identify how duplicating the state 
commercial allocations in the Federal FMP and regulations and requiring 
the Council and Federal rulemaking processes to change the state 
commercial allocations would increase adaptive capacity, efficiency, or 
responsiveness in black sea bass management. According to the National 
Standard Guidelines at Sec.  600.335(d), unpredictable events, such as 
unexpected climatic conditions or resource surges or failures, are best 
handled by establishing a flexible management regime that contains a 
range of management options through which it is possible to act quickly 
without amending the FMP or even its regulations. The current system of 
managing state commercial allocations through the Commission's 
Interstate FMP provides an efficient, responsive, and equitable process 
that does not require amending the FMP or regulations.
    Continued changes in the stock distribution would exacerbate the 
already challenging allocation deliberations of the Council if the 
state allocations were added to the Federal FMP. Rapid changes and 
increased uncertainties in stock distribution, particularly in response 
to the effects of climate change, highlight the need for a flexible and 
responsive management system. Because the proposed measure to 
incorporate state-by-state quota allocations into the Federal FMP and 
regulations would create a less flexible and less responsive management 
system than the status quo, NMFS finds this aspect of Amendment 23 to 
be inconsistent with National Standard 6.
    Comment 14: Three commenters agreed with NMFS that climate change 
and the shifting distribution of the stock exacerbate concerns 
regarding unequal representation. MADMF stated that every state with an 
interest in a species is represented on the Commission and moving the 
state commercial allocation to the Council FMP would uproot ``the 
northern states' equal footing inherent'' in the Commission process. It 
went on to say, ``The mid-Atlantic states feel no similar repercussions 
from maintaining the allocations solely in the interstate plan; they 
are well represented by their delegates to the [Commission]. As the 
Council letter points out, this is the first time the allocations have 
been revised in the [Commission] plan since their original 
implementation in 2003, demonstrating that the [Commission] member 
states do not take the matter lightly. While distinct, the [Commission] 
processes are equally transparent, robust, and deliberative as the 
Council's.''
    MADMF also noted that regional climate change scenario planning 
efforts, supported by the Council, have included consideration of more 
joint management and greater flexibility as stocks shift. Another 
commenter echoed MADMF's concerns regarding equity and adaptability in 
the face of shifting

[[Page 79783]]

stocks and suggested that the allocations should be managed solely by 
the Commission or jointly by the Mid-Atlantic and New England Councils.
    Response: NMFS agrees that the Commission should retain management 
of the state commercial allocations to ensure an equitable process and 
have disapproved the addition of the commercial state black sea bass 
allocations into the Federal FMP.

General Comments

    Comment 15: MADMF fully supported NMFS' rationale, as provided in 
88 FR 28456 (May 4, 2023), for disapproving the addition of the 
commercial black sea bass state allocations into the Federal FMP.
    Response: NMFS agrees and has disapproved the addition of the 
commercial state black sea bass allocations into the Federal FMP.
    Comment 16: One commenter stated that NMFS' proposal will 
complicate things for fishermen and black sea bass issues should have 
been addressed two decades ago.
    Response: NMFS agrees that duplicating the state allocations in the 
Federal FMP would create a more complicated process for black sea bass 
fishermen and have disapproved this measure.

Changes From the Proposed Rule

    The proposed rule included all of the Council's recommended changes 
to the FMP and proposed implementing regulations deemed necessary by 
the Council. As described above, NMFS has determined that the 
adjustment to the process for setting the state allocations and the 
addition of the state allocations and payback provisions to the 
Council's (Federal) FMP were inconsistent with the National Standards 
and disapproved those measures. The final rule only implements the 
proposed change to the commercial in-season closure trigger, and 
removes the disapproved measures that were in the proposed rule's 
regulatory text.

Classification

    Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that this final rule is 
consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, 
other provisions of the Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.
    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: September 24, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 
648 as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.142, revise paragraph (a) introductory text and add 
paragraph (a)(15) to read as follows:


Sec.  648.142  Black sea bass specifications.

    (a) Specifications. Commercial quota, recreational landing limit, 
research set-aside, and other specification measures. The Monitoring 
Committee will recommend to the MAFMC and the ASMFC, through the 
specification process, for use in conjunction with the ACL and ACT, 
sector-specific research set-asides, estimates of the sector-related 
discards, a recreational harvest limit, a commercial quota, along with 
other measures, as needed, that are projected to prevent overages of 
the applicable specified limits or targets for each sector as 
prescribed in the FMP. The following measures are to be considered by 
the Monitoring Committee:
* * * * *
    (15) A commercial quota overage buffer, of up to 5 percent, that 
would be used to determine when a Federal in-season closure would be 
triggered.
* * * * *

0
3. In Sec.  648.143, revise paragraph (a) introductory text to read as 
follows:


Sec.  648.143  Black sea bass accountability measures.

    (a) Commercial sector fishery closure. The Regional Administrator 
will monitor the harvest of commercial quota based on dealer reports, 
state data, and other available information. All black sea bass landed 
for sale in the states from North Carolina through Maine by a vessel 
with a moratorium permit issued under Sec.  648.4(a)(7) shall be 
applied against the commercial annual coastwide quota, regardless of 
where the black sea bass were harvested. All black sea bass harvested 
north of 35[deg]15.3' N. lat., and landed for sale in the states from 
North Carolina through Maine by any vessel without a moratorium permit 
and fishing exclusively in state waters, will be counted against the 
quota by the state in which it is landed, pursuant to the FMP for the 
black sea bass fishery adopted by the ASMFC. The Regional Administrator 
will determine the date on which the annual coastwide quota, plus a 
buffer up to 5 percent as specified in the annual specifications, is 
projected to be harvested; and beginning on that date and through the 
end of the calendar year, the EEZ north of 35[deg]15.3' N lat. will be 
closed to the possession of black sea bass. The Regional Administrator 
will publish a notification in the Federal Register advising that, upon 
and after that date, no vessel may possess black sea bass in the EEZ 
north of 35[deg]15.3' N lat. during a closure, nor may vessels issued a 
moratorium permit land black sea bass during the closure. Individual 
states will have the responsibility to close their ports to commercial 
landings of black sea bass during a closure, pursuant to the FMP for 
the black sea bass fishery adopted by the ASMFC.
* * * * *
[FR Doc. 2024-22233 Filed 9-30-24; 8:45 am]
BILLING CODE 3510-22-P


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