Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Framework Adjustment 17 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, and Framework Adjustment 6 to the Bluefish Fishery Management Plan, 14499-14512 [2023-04588]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 46 (Thursday, March 9, 2023)]
[Rules and Regulations]
[Pages 14499-14512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04588]



[[Page 14499]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 230301-0057]
RIN 0648-BL65


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Framework 
Adjustment 17 to the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan, and Framework Adjustment 6 to the Bluefish 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 Framework Adjustment 17 to the Summer 
Flounder, Scup, and Black Sea Bass Fishery Management Plan and 
Framework Adjustment 6 to the Bluefish Fishery Management Plan. This 
framework was developed by the Mid-Atlantic Fishery Management Council 
in conjunction with the Atlantic States Marine Fisheries Commission to 
revise the process for setting recreational management measures and 
recreational accountability measures for summer flounder, scup, black 
sea bass, and bluefish. Recreational management and accountability 
measures prevent overfishing while balancing recreational fishing 
opportunities.

DATES: Effective March 9, 2023.

ADDRESSES: Copies of Framework Adjustment 17 to the Summer Flounder, 
Scup, and Black Sea Bass Fishery Management Plan and Framework 
Adjustment 6 to the Bluefish Fishery Management Plan, including the 
Environmental Assessment, the Regulatory Impact Review, and the Initial 
Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared in support of 
this action are available from Dr. Christopher M. Moore, Executive 
Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 North 
State Street, Dover, DE 19901. The supporting documents are also 
accessible via the internet at: https://www.mafmc.org/actions/hcr-framework-addenda.

FOR FURTHER INFORMATION CONTACT: Emily Keiley, Fishery Policy Analyst, 
(978) 281-9116, or [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The Mid-Atlantic Fishery Management Council (Council) and the 
Atlantic States Marine Fisheries Commission (Commission) cooperatively 
manage the summer flounder, scup, black sea bass, and bluefish 
fisheries. The Council submitted Framework Adjustment 17 to the Summer 
Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) and 
Framework Adjustment 6 to the Bluefish FMP (collectively referred to as 
the Recreational Harvest Control Rule (HCR) Framework) to us for 
consideration of approval. This final rule approves and implements the 
Recreational HCR Framework, which establishes a new process for setting 
recreational measures (i.e., bag, size, and season limits), and 
modifies the recreational accountability measures (AM). This Framework/
Addenda establishes a process for setting recreational measures that: 
Prevents overfishing; is reflective of stock status; appropriately 
accounts for uncertainty in the recreational data; takes into 
consideration angler preferences; and provides an appropriate level of 
stability and predictability in changes from year to year.

Recreational Management Measure Setting Process: The Percent Change 
Approach

    This action modifies the process for setting recreational 
management measures for summer flounder, scup, black sea bass, and 
bluefish, including how to determine when management measures need to 
be changed, the percent change required if changes are made, and the 
timing of the overall process. This process will apply to stocks not in 
a rebuilding plan; when a stock is in a rebuilding plan, recreational 
measures will be determined based on the requirements of that plan. 
Bluefish is in a rebuilding plan, so this approach is not currently 
applicable. The new process, referred to as the Percent Change 
Approach, uses two factors to determine if recreational management 
measures can remain status quo, can be liberalized, or must be 
restricted. These factors are:
    1. Comparison of a confidence interval (CI) around an estimate of 
expected harvest under status quo measures to the average recreational 
harvest limit (RHL) for the upcoming 2 years; and,
    2. Biomass compared to the target level, as defined by the most 
recent stock assessment.
    Considered together, the harvest and biomass comparisons determine 
the appropriate degree of change, defined as a percentage change in 
expected harvest, as summarized in Table 1. For example, when the 
future 2-year average RHL is greater than the upper bound of the 
harvest estimate CI (i.e., an RHL underage is expected under status quo 
measures) and biomass is below the target level, measures would be 
modified to achieve no more than a 10-percent liberalization in 
harvest. In this scenario, the liberalization is capped at 10 percent 
even if the difference between the RHL and expected harvest is greater 
than 10 percent. Note that this is a more conservative approach than 
the previous process, which would have allowed liberalization up to the 
full difference between the estimated harvest and the RHL, even for 
stocks in decline and below the target biomass. Additional information 
on the process is contained in the proposed rule and is not repeated 
here.

                   Table 1--Management Response Table
------------------------------------------------------------------------
     Factors to determine recommended change
--------------------------------------------------
                                (2) Stock biomass  Recommended change in
   (1) Future RHL vs harvest     compared to the          harvest
           estimate             target stock size
                                     (B/BMSY)
------------------------------------------------------------------------
Future 2-year average RHL is    Very high (at      Liberalization:
 greater than the upper bound    least 150% of      percent based on the
 of the harvest estimate         the target stock   difference between
 confidence interval (harvest    size).             the harvest estimate
 is expected to be lower than                       and the 2-year
 the RHL).                                          average RHL, not to
                                                    exceed 40 percent.
                                High (between the  Liberalization:
                                 target and 150%    percent based on the
                                 of the target      difference between
                                 stock size).       the harvest estimate
                                                    and the 2-year
                                                    average RHL, not to
                                                    exceed 20 percent.
                                Low (below the     Liberalization: 10
                                 target stock       percent.
                                 size).

[[Page 14500]]

 
Future 2-year average RHL is    Very high (at      Liberalization: 10
 within the confidence           least 150% of      percent.
 interval of the harvest         the target stock  No change: 0 percent.
 estimate (harvest is expected   size).
 to be close to the RHL).       High (between the
                                 target and 150%
                                 of the target
                                 stock size).
                                Low (below the     Reduction: 10
                                 target stock       percent.
                                 size).
Future 2-year average RHL is    Very high (at      Reduction: 10
 less than the lower bound of    least 150% of      percent.
 the harvest estimate            the target stock  Reduction: percent
 confidence interval (harvest    size).             based on the
 is expected to exceed the      High (between the   difference between
 RHL).                           target and 150%    the harvest estimate
                                 of the target      and the 2-year
                                 stock size).       average RHL, not to
                                                    exceed 20 percent.
                                Low (below the     Reduction: percent
                                 target stock       based on the
                                 size).             difference between
                                                    the harvest estimate
                                                    and the 2-year
                                                    average RHL, not to
                                                    exceed 40 percent.
------------------------------------------------------------------------

Key Terms

     Biomass (B): The size of a stock of fish measured in 
weight. For summer flounder, scup, black sea bass, and bluefish, the 
biomass levels and biomass targets used in management are based on 
spawning stock biomass.
     Biomass target (BMSY): The stock size (B) 
associated with maximum sustainable yield (MSY), as defined by a stock 
assessment. MSY is the largest average catch that can be taken from a 
stock at BMSY over time under existing environmental 
conditions without negatively impacting the reproductive capacity of 
the stock.
     Confidence Interval: the upper and lower bound around a 
point estimate to indicate the range of probable values given the 
uncertainties around the estimate.
     Recreational Harvest Limit (RHL): The total allowable 
annual recreational fishery harvest; set based on information from the 
stock assessment, considerations about scientific and management 
uncertainty, allocations between the commercial and recreational 
sectors, and assumptions about dead discards.

Timing

    The previous process considered adjustments to recreational 
management measures annually. This presented a number of associated 
challenges, given the timing of Marine Recreational Information Program 
(MRIP) data availability and the fishing seasons. The Percent Change 
Approach shifts the timing to a 2-year cycle, adjusting measures in 
sync with the setting of catch and landings limits in response to 
updated stock assessment information. Updated stock assessments will be 
available every other year for all four species. In the interim year, 
measures will be reviewed, and may be modified if new data suggest a 
major change in the expected impacts of those measures on the stock or 
the fishery.

Sunset Provision

    The Percent Change Approach to setting recreational management 
measures is an improvement over the status quo process because it 
allows for management measures to be set for 2 years, includes the 
explicit consideration of the best estimate of the current biomass of 
the stock compared to the target level, and requires the consideration 
of the variability in harvest estimates. However, the Council and 
Commission's Policy Board intend for the Percent Change Approach to be 
an interim process, which will sunset no later than December 31, 2025, 
with the goal of implementing additional improvements to recreational 
fisheries management by fishing year 2026. These improvements will be 
developed through a separate, future management action. In the absence 
of additional action to revise the recreational management measure-
setting process or continue the Percent Change Approach by the sunset 
date, the process for establishing recreational measures will revert to 
the methodology previously used by the Council, which is part of the 
FMP but not set forth in regulatory text.

Recreational Accountability Measures

    When a reactive AM has been triggered by a recreational Annual 
Catch Limit (ACL) overage and the most recent biomass estimate is 
between the target and the threshold, consideration would also be given 
to the most recent estimate of fishing mortality (F) relative to the 
fishing mortality associated with MSY (FMSY) in the year(s) 
when the overage(s) occurred. The AM response would be more restrictive 
if FMSY was exceeded in addition to the ACL (e.g., a payback 
would be required). If only the recreational ACL was exceeded but not 
FMSY, the AM response would be less strict (e.g., measures 
would be revised but a payback would not be required).
    Estimates of fishing mortality during the years relevant to the 
evaluation may not always be available as these estimates are provided 
through the stock assessment, which is not updated every year. When the 
relevant fishing mortality estimates are not available, this comparison 
would default to a comparison of total catch relative to the ABC.
    These recreational accountability measures will not sunset in 2025.

Comments and Responses

    We received 10 comments on the proposed rule. Five individuals 
provided comments on specific State recreational regulations and how 
these regulations were too restrictive, have resulted in economic 
hardship, and have eroded trust in the fishery management process. One 
individual also suggested imposing more restrictions on the commercial 
fishery. These comments are not directly relevant to the rulemaking and 
are not discussed further. One comment letter from five organizations 
(the American Sportfishing Association, Center for Sportfishing Policy, 
Coastal Conservation Association, Congressional Sportsmen's Foundation, 
and the National Marine Manufacturers Association) supported the 
implementation of the framework. One individual and four conservation 
organizations (Conservation Law Foundation, Natural Resources Defense 
Council, Ocean Conservancy, and the Marine Fish Conservation Network), 
through three comment letters, opposed the implementation of the 
framework. These letters primarily asserted that the

[[Page 14501]]

Percent Change Approach violated National Standards 1, 2, and 4; 
responses to the specific issues raised in these comments are provided 
below.
    One of the major themes of the comments in opposition to the 
implementation of the framework was that the Percent Change Approach is 
an attempt to circumvent the system of Annual Catch Limits (ACL), 
increasing the risk of overfishing, and creating a de facto 
reallocation of quota to the recreational sector. The nature of these 
comments suggest there is a misunderstanding of the purpose and intent 
of this rule. The framework, and the Percent Change Approach as 
currently configured, is intended to be an interim approach to setting 
recreational management measures (i.e., bag, size, and season) while 
the Council and Board continue to work on a number of recreational 
management issues, including a continued evaluation of how to set 
recreational management measures, recreational accountability and 
reporting, and how best to manage the private and for-hire components 
of the fishery. The Percent Change Approach implemented by this final 
rule will sunset no later than December 31, 2025, and will either be 
replaced by a new process or the previous approach to setting 
recreational management measures will be reinstated.
    The Percent Change Approach is not intended to, and does not, 
eliminate the system of ACLs. We will, through the Council process, 
continue to set an Allowable Biological Catch (ABC), ACLs, and an RHL 
for all four species. The Percent Change Approach does not eliminate 
the use of the RHL. In fact, the evaluation of projected harvest 
compared to the upcoming RHLs remains a critical component of the 
process. The intent of the Percent Change Approach is to iteratively 
adjust measures as necessary to prevent overfishing and more closely 
monitor the impact that recreational harvest has on a stock. The 
potential annual adjustments are constrained within certain percentages 
in order to minimize the social and economic impact of the large 
adjustments sometimes implemented under the previous system that were 
driven by large statistical fluctuations in the data used to estimate 
catch. Recreational data are highly variable and uncertain due, in 
part, to the sampling protocols used to separately collect effort and 
catch data. Catch estimates, even under consistent management measures, 
vary substantially from year to year. An effective system of managing 
the recreational fishery needs to acknowledge and address this 
variability and uncertainty. From 2018 to 2021, recreational management 
measures for summer flounder, scup, and black sea bass remained 
unchanged, yet the estimated harvest varied by as much as 45 percent 
from year to year. For example, estimated black sea bass recreational 
catch ranged from 10.20 million lb to 16.17 million lb (4,626 to 7,335 
metric tons) from 2018 to 2021 despite nearly all management measures 
remaining the same. Such significant differences in estimated catch 
under the same management measures (input controls) has made setting 
management measures in a manner that will precisely reach, but not 
exceed, a specific catch limit in any given year extremely challenging. 
Reacting to these large, uncertain swings in estimated harvest, by 
liberalizing or reducing those management controls in the subsequent 
year in an attempt to achieve a specific harvest target, has been 
unsuccessful by all standards. This has been particularly difficult 
with robust stocks, such as scup and black sea bass, which continue to 
grow even in situations where harvest has exceeded previously set 
limits. Such stocks that are readily and widely available to the 
recreational fishery because of their high abundance will continue to 
be harvested, even with very restrictive management measures, and the 
current recreational measures-setting process will continue to chase a 
target that becomes ever more difficult to reach. The Percent Change 
Approach allows managers to consider additional scientific information 
when setting recreational measures beyond simply an uncertain catch 
estimate, to achieve optimum yield. Based on an evaluation of the 
current harvest levels compared to the upcoming RHLs, and the biomass 
relative to the target, the Percent Change Approach prescribes the 
degree of change necessary to be achieved by the recreational 
management measures. When a stock is at a low biomass (below the 
biomass target) the management responses are more precautionary. For 
example, even when harvest is expected to be close to the upcoming RHL, 
a 10-percent reduction is required for a stock in the low biomass 
category. For stocks with a very high biomass (at least 150 percent of 
the biomass target), a liberalization of no more than 10 percent would 
be allowed when harvest is close to the RHL. When harvest is expected 
to be higher than the RHL, a reduction is required regardless of stock 
size, but it may be more significant for stocks at lower stock sizes (a 
10-percent reduction is required for stocks at very high biomass, and 
stocks at a high and low biomass are required to take a reduction based 
on the difference between the harvest estimate and RHL). This is 
because the conservation risk associated with overages is greater for 
stocks that are less abundant, whereas stocks that are well above their 
target biomass are more robust to higher levels of fishing mortality. 
The overall goal of the Percent Change Approach is to iteratively 
adjust management measures to achieve the RHL, while minimizing 
potential overreaction (overcorrection) to annual variability in the 
harvest estimates.

National Standard 1

    National Standard 1 states that 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.
    Comment 1: Three comments expressed concern about the 
``disconnect'' between the process for setting recreational management 
measures, the recreational ACL, and RHL. One comment suggested that the 
framework, ``. . . seeks to circumvent the well-established framework 
for annual catch limits that Congress mandated for all Federal 
fisheries in the 2006 reauthorization of the Magnuson-Stevens Act''.
    Response: As stated above, the Percent Change Approach does not 
eliminate the recreational ACL or RHL, and continues to use both in the 
process of setting measures, and evaluating accountability measures. 
The approach in this rule attempts to balance the need to constrain 
harvest in order to prevent overfishing while acknowledging that 
recreational catch estimates are uncertain and often highly variable. 
The Percent Change Approach makes incremental adjustments and reduces 
the tendency of management measures to ``chase'' after the highs and 
lows, by either liberalizing or restricting measures too much in any 
given year in reaction to swings in catch estimates. The rule's 
approach also builds in more precaution for stocks at lower biomass 
levels (biomass levels and the target are taken directly from the 
approved and peer-reviewed stock assessment that occur every other year 
for all four species). Consider that when a stock biomass is in 
decline, it often becomes less available to the recreational fishery 
and, therefore, catch estimates may decline relative to the RHL; prior 
to this rule, management measures would be liberalized, sometimes 
significantly, while catch fell due to a declining biomass, increasing 
fishing pressure on a declining stock. Conversely, as healthy stocks 
increase, sometimes far above the

[[Page 14502]]

target biomass level, such as with black sea bass and scup, the fish 
become more available to the fishery, even under restrictive measures, 
resulting in catch estimates that exceed the RHL. However, what appear 
to be overages often have no negative impact on abundant stocks as we 
continue to see increases in biomass through a subsequent stock 
assessment.
    The comment letters focused on the scenario where a stock is at a 
very high biomass (150 percent or more above the biomass target) and 
the harvest is projected to be greater than the upcoming RHL. This is 
the ``bin'' that black sea bass falls into for 2023--and it therefore 
requires more conservative measures to achieve a 10-percent reduction 
in harvest. The conservation risk of this temporary approach, which 
reduces the magnitude of a needed reduction compared to what would 
occur with the current approach, on a stock that is over 150 percent of 
its biomass target is negligible. The Magnuson-Stevens Act defines 
overfishing as the ``rate or level of fishing mortality that 
jeopardizes the capacity of a fishery to produce the maximum 
sustainable yield on a continuing basis (emphasis added).'' This 
scenario, where a stock continues to maintain a biomass significantly 
above the target, does not constitute overfishing.
    The system the Percent Change Approach is replacing utilized the 
same criteria, and allowed for the same degree of changes to management 
measures, whether a stock biomass was considered overfished (less than 
50 percent of its maximum sustainable yield target) or over 200 percent 
of its target level. The Percent Change Approach also considers the 
estimated harvest compared to the RHL, but, in contrast to the previous 
approach, also incorporates information about stock status to determine 
whether, and how much, to either liberalize or restrict management 
measures, ensuring more conservative responses for stocks in low 
biomass conditions while allowing potentially more liberal responses 
only for stocks at very high biomass levels.
    Another scenario that the comments did not address relates to 
summer flounder in 2023. Because summer flounder is at a ``low'' stock 
size (approximately 80 percent of its biomass target), the Percent 
Change Approach calls for a 10-percent reduction in harvest, even 
though such harvest is projected to be below the RHL. The approaches in 
these two instances were designed to require more precaution in 
developing recreational measures when a stock is at lower levels of 
biomass, and more measured, stepwise reductions in recreational 
measures when a stock is at very high levels of biomass. In either 
scenario, if the reduction taken does not result in harvest that is 
expected to achieve upcoming RHLs, additional reductions will follow in 
subsequent years--with this cycle continuing until the management 
measures result in catch that is expected to achieve, but not exceed, 
the RHL. Using a more gradual, iterative approach to constraining 
harvest for stocks at very high levels of abundance is a reasonable 
balance given the significant socioeconomic impacts of the reductions 
on the recreational sector in a situation involving increasing stocks 
with low risk of overfishing. This is also not an unprecedented 
approach. When rebuilding plans are implemented, they sometimes have a 
tiered or multi-year phase-in to needed reductions.
    The comment letters focused on the Percent Change Approach for 
setting the management measures, but that is only one component of the 
management system. Accountability Measures (AM) remain a critical part 
of management, which, while slightly modified through this rule, are 
not being eliminated or relaxed. The revised AMs incorporate the 
explicit consideration of fishing mortality to determine if overfishing 
occurred, which has the effect of more accurately reflecting when more 
stringent adjustments to management measures are needed.
    Comment 2: One of the comment letters stated that, ``while 
recreational harvest may be projected to exceed an RHL, this does not 
always, and often has not, resulted in overfishing. Given that the OFL 
is fully allocated, one of the few ways this statement can be true is 
if commercial under harvest exists and is relied upon to offset 
recreational exceedances.''
    Response: It is true that the impact from recreational overages may 
be ``balanced'' by a commercial underage or vice versa in the 
evaluation of overfishing. This is not a new feature of this approach, 
nor is it unique to these fisheries. This approach does not take away 
quota from the commercial fishery or prevent commercial vessels from 
harvesting their entire allocated quota, and thus does not represent a 
de facto reallocation of quota. It is simply the reality of overfishing 
and overfished statuses being determined based on all mortality and not 
sector-specific considerations. To the extent that there is overfishing 
as a result of a recreational overage, AMs would be applied to the 
recreational fishery, not the commercial fishery.
    Another reason that the OFL may be exceeded, despite the fact that 
overfishing is not occurring, could be that the catch limits (OFL, ABC, 
ACLs) were not set at the correct level. When a stock assessment is 
rerun and updated, it is often the case that our perception of the 
stock size has changed. Black sea bass has recently experienced a 
retrospective pattern that has revealed that stock assessments have 
routinely underestimated stock size and overestimated fishing 
mortality, resulting in the stock size subsequently being higher than 
originally estimated, and fishing mortality lower, when a new/updated 
assessment is conducted. The outcome of this pattern is catch limits 
that are set lower than what is actually available to the fishery and 
years where even restrictive management measures result in higher than 
anticipated harvest, often with increasing levels of discards, even 
without overfishing occurring.
    Comment 3: One commenter stated that, ``Under the new system, the 
ACL would only be relevant to recreational management in an indirect 
manner, through post-hoc comparisons of rolling average ACLs to average 
recreational catches. In short, the ACL no longer would be a meaningful 
forward-looking limit.''
    Response: This statement is inaccurate. Recreational and commercial 
ACLs will be set for all four species annually. The specifications 
process will also set RHLs for each species. The RHL, which is derived 
from the OFL, ABC, and recreational ACL, will then be used in 
conjunction with stock size, to determine the required percent change 
in recreational harvest.
    Comment 4: Two commenters stated that the framework does not 
provide a ``reasonably high level of confidence'' that measures will 
not result in overfishing.
    Response: The Percent Change Approach is a new, temporary approach 
that will improve the process for setting recreational management 
measures (i.e., bag, size, and season) for stocks that are not under a 
rebuilding plan. The approach uses the stock size compared to the 
target stock size, and the projected harvest compared to the harvest 
target, to determine the management response. Depending on the stock 
size (i.e., very high, high, or low), the possible outcomes are 
limited. For example, because summer flounder is in the ``low'' stock 
size bin, a 10-percent reduction in harvest must be implemented, even 
when harvest is expected to be close to the RHL (within the CI). The 
only scenario where a

[[Page 14503]]

liberalization can be implemented for a stock in the ``low'' biomass 
bin is when the RHL is greater than the upper bound of the harvest 
estimate. This is a more conservative approach than the prior approach 
for setting recreational fishing measures, which only compared the 
estimated catch to the new RHL, and did not incorporate stock status 
into the decision-making process. For 2023, the application of the 
Percent Change Approach to summer flounder resulted in a harvest target 
below the RHL. When stocks are very healthy (i.e., ``very high''), the 
Percent Change Approach creates more opportunities to liberalize 
management measures, or allows for a lesser reduction, due to the very 
large stock size and minimized risk to the stock.
    The Magnuson-Stevens Act defines the terms ``overfishing'' and 
``overfished'' as a rate or level of fishing mortality that jeopardizes 
the capacity of a fishery to produce the maximum sustainable yield on a 
continuing basis. Scup and black sea bass are stocks in the ``very 
high'' bin, meaning the biomass is over 150 percent of their respective 
biomass targets--the level of biomass associated with maximum 
sustainable yield. In plain language, stocks in this bin are at least 
1.5 times larger than is ideal for maximizing long-term benefits. In 
theory, for such stocks, fishing at FMSY should gradually 
fish the stock back down to the biomass target. Fishing above 
FMSY for a year may increase the rate at which this is 
achieved, but would not jeopardize the long-term sustainability of the 
stock. Adding to the complexity of this is the retrospective pattern 
observed in the black sea bass stock assessment, as described above. 
Essentially, when the stock assessment is updated and compared to 
previous assessments, the stock biomass is higher than previously 
estimated, and the fishing mortality is lower. This bias results in 
biomass-based targets (OFL, ABC, ACL, RHL) being set lower than, in 
retrospect, they should have been.
    Comment 5: Two commenters referenced the actions taken at the 
December 13, 2022, meeting of the Council and Board, where the proposed 
framework was applied to set recreational management measures for 2023. 
These comments suggest that the measures adopted for 2023 provide 
evidence that the framework does not provide adequate assurance that 
overfishing will not occur, and the very first application of the 
approach could result in overfishing of scup and black sea bass.
    Response: The specific 2023 management measures set for summer 
flounder, scup, and black sea bass will be discussed and evaluated in a 
subsequent rulemaking and are not discussed in detail here. However, it 
is worth noting that the Percent Change Approach, when applied to black 
sea bass, called for a 10-percent harvest reduction compared to status 
quo measures, resulting in a harvest target of 7.14 million lb (3,238 
mt). The 2023 RHL is 6.57 million lb (2,980 mt), and the ACL is 9.16 
million lb (4,155 mt). A harvest target of 7.14 million lb (3,238 mt) 
allows for more than 2 million lb (907 mt) of dead discards before 
exceeding the recreational ACL. Even if the recreational ACL was 
exceeded, the commercial fisheries catch would also factor into the 
overall fishing mortality on the stock. In 2021, the commercial black 
sea bass fishery caught 59 percent of the commercial ACL, an underage 
of 3.9 million lb (1,782 mt). Given recent commercial underages, and 
how close the Percent Change Approach estimated harvest is to the 
actual RHL, it is very unlikely that the OFL would be exceeded or, more 
importantly, that overfishing would occur. Recreational catches have 
been significantly above the ACL for many years and, despite this, the 
black sea bass stock is over 150 percent of its biomass target, and 
overfishing is not occurring according to the most recent stock 
assessment. The most recent 2021 management track stock assessment-
estimated fishing mortality was estimated to be 0.39 compared to the 
target (F40) of 0.46, meaning that fishing mortality 
has actually been lower than the optimal level. The biomass of black 
sea bass was estimated to be 29,769 mt; 2.1 times the biomass target.
    Comment 6: One commenter stated that the Environmental Assessment 
(EA) ``badly understated the severity of the problem'' and how often 
the annual landings targets mandated by the Percent Change Approach 
would diverge from the RHLs, the landings limits generated by use of 
the best scientific information available.
    Response: We do not yet know by how much, and how often, the 
harvest target will be different from the RHL. For a stock like summer 
flounder that has a low stock size (below the target), the 2023 harvest 
target is lower than the RHL. This is a precautionary approach 
purposely built into the Percent Change Approach when stocks are below 
their target biomass levels. The 2023 targets for scup and black sea 
bass are higher than the 2023 RHLs but, in both cases, reductions to 
harvest are being required. When the 2023 stock assessments and 2024 
ACLs and RHLs are available, everything will be reanalyzed and 
additional reductions or liberalizations will be implemented, as 
appropriate. This iterative process allows managers to make incremental 
changes, and evaluate the impacts of those changes on the stock, using 
the best scientific information available (i.e., the stock assessment) 
and then make necessary adjustments moving forward. For species such as 
scup and black sea bass, where subsequent assessments have revealed 
that prior stock sizes had been underestimated and projected fishing 
mortality overestimated, the approach implemented in this rule can help 
avoid drastic changes to recreational measures that later prove to have 
been unnecessary.
    During the development of the Percent Change Approach, the Plan 
Development Team/Fishery Management Action Team (PDT/FMAT) evaluated 
what changes would have been required for summer flounder and black sea 
bass in the past, if the Percent Change Approach had been applied. This 
analysis was part of the process for determining the appropriate 
percentages for each bin (additional details on this analysis can be 
found in the response to Comment 13). The percent changes that were 
selected were based on the historical reductions and liberalizations 
that have been required.
    This commenter seems to imply that the implementation of the 
Percent Change Approach constitutes a serious conservation concern; yet 
this approach will only be in place for a maximum of 3 years, does not 
apply to stocks in rebuilding plans, and requires more precautionary 
measures when stocks are below their target biomass. As noted under 
Comment 1, the Percent Change Approach requires more restrictive 
recreational management measures for summer flounder in 2023, where the 
prior approach would have allowed for liberalization of management 
measures.
    Comment 7: One commenter cited a statement made by the Regional 
Administrator about the requirements specific to ACLs. Specifically, 
that ``neither an RHL nor a recreational sector-specific ACL are 
requirements of the Magnuson-Stevens Act. While an overall ACL as well 
as AMs are required, these are designed to prevent overfishing at the 
stock level.'' The comments suggested that such statements imply an 
intent to create a de facto reallocation between the recreational and 
commercial fishing sectors, because the only way that the recreational 
sector can exceed its ACL, without also causing the overall ACL to be 
exceeded, is if the commercial sector does not achieve its ACL. Thus, 
if the Percent Change Approach is designed to

[[Page 14504]]

allow the recreational sector to exceed its ACL under certain 
circumstances, it is also designed to shift the allocation in favor of 
the recreational sector, and to do so without the need for any 
allocation-specific management document, or the opportunity for 
meaningful public input.
    Response: The statements made by the Regional Administrator are 
factual--sector-specific ACLs and the RHL are not required by the 
Magnuson-Stevens Act or the National Standard Guidelines. As discussed 
in response to comment 14 below, the Percent Change Approach is not 
designed to, and does not, shift allocation to the recreational sector. 
The Magnuson-Stevens Act requirements are designed to prevent and 
evaluate overfishing at a stock level. Thus, a sector-specific 
(recreational or commercial) ACL overage may not be a conservation 
issue, if overall fishing mortality does not exceed the target. The 
summer flounder, scup, and black sea bass commercial accountability 
measures include a provision, when the stock biomass is very high, that 
reduces the severity of the response to a potential overage, so as not 
to unduly restrict a fishery because the catch limits are not 
necessarily reflective of the biological status of the stock. Likewise, 
there could be, in this scenario, a commercial fishery overage and a 
recreational fishery underage, but this does not mean we are 
``reallocating'' fish from one sector to another. These types of 
allowances and flexibilities, when the stock size is very high, help to 
balance the needs of the fisheries in an effort to achieve optimal 
yield, without causing unnecessarily severe social and economic 
disruptions that do not address a corresponding biological need.
    Comment 8: One commenter suggested that the Percent Change Approach 
would cause the AMs to be unable to effectively prevent ACLs, including 
sector ACLs, from being exceeded, and would be unable to correct the 
problems that caused the overage in as short a time as possible.
    Response: The role of AMs is to mitigate the overages and correct 
the problem that caused them as soon as possible. This rule does not 
eliminate the AMs, or change their structure or function. The current 
recreational AMs for these four species are structured such that the AM 
response is different depending on the stock biomass, and the degree of 
the overage, and this remains the case with the approach of this rule. 
If the stock biomass is low (i.e., below the threshold, in a rebuilding 
plan, or reference points are unknown) a pound-for-pound payback is 
required for overages. Moreover, stocks in this category (e.g., a stock 
in a rebuilding plan such as bluefish) are not eligible for the Percent 
Change Approach, thus this element of the framework has no impact on 
the function of the AMs for such stocks. If a stock is above the 
threshold, but below the target, such as summer flounder, the AM 
depends on if there was a recreational ACL overage, or if the overall 
fishing mortality is above the target, with the response being more 
severe if overfishing was occurring. In that scenario, a payback is 
required for overages. When a stock is above the biomass target, such 
as scup and black sea bass, the current AMs call for ``adjustments to 
the recreational management measures, taking into account the 
performance of the measures and conditions that precipitated the 
overage.'' This rule does not eliminate or change this requirement. If 
AMs are triggered, the Council and Board will be required to satisfy 
those AMs and, if they fail to do so, NMFS will adjust measures as 
needed. There is no evidence provided in the comment that explains how 
the use of a new method to set the recreational management measures 
makes the AMs ineffective.
    Comment 9: One commenter pointed out that the application of the 
Percent Change Approach can direct the Council to set an annual 
landings target that exceeds the sector ACL, and might even ensure that 
AMs will have to be invoked in a subsequent season. The letter goes on 
to point out that ``. . . it occurred at the December 13 Meeting, the 
very first time the [Percent Change Approach] was used to set an annual 
landings target, when it set the 2023 annual landings target for scup 
at 12.88 million pounds (5,842 mt), approximately 20 percent above the 
sector ACL. Even if 2023 recreational landings merely approach, but do 
not exceed, such a landings target, AMs will inevitably be invoked . . 
.'' The comment suggests that under such circumstances, there is no 
meaningful chance that AMs will not have to be invoked after the 2023 
scup season.
    Response: This is not a result of the Percent Change Approach. The 
previous overages that occurred under the previously applied approach 
were so large that, even if the recreational harvest in 2023 was set to 
the RHL, the AM would be triggered. In fact, even if there was no scup 
harvest in 2023, the AM would be triggered. Thus, it is not logical to 
suggest that the AM being triggered in 2024 was due to the Percent 
Change Approach.

National Standard 2

    Comment 10: Two commenters made statements about continuing to use 
the previously applied ``science-based'' approach to setting 
recreational management measures, suggesting that this approach was 
better than the process proposed in the framework.
    Response: The previous approach to setting recreational management 
measures was based on reacting to the highly variable and uncertain 
annual catch estimates of recreational harvest in a given year. Often, 
the approach relied on ad hoc approaches developed by the Monitoring/
Technical Committee to smooth out the data across multiple years to 
achieve the RHL. This approach was regularly unsuccessful at accurately 
predicting harvest that would not exceed the RHL, particularly for 
black sea bass and other stocks with very large stock sizes. Using that 
approach, the black sea bass RHL was exceeded every year from 2012 
through 2021, except 2017. During that time, estimated recreational 
harvest ranged from 97 to 241 percent of the RHL. The previous approach 
was also unsuccessful with respect to social and economic objectives. 
There has been widespread angler dissatisfaction as continuously more-
restrictive measures were implemented, despite increasing stock size 
and therefore increasing availability to the fishery. The black sea 
bass stock is more than 150 percent of the biomass target, yet 
management measures are the most restrictive they have ever been. The 
same scenario has been occurring for scup in recent years, and in 2022, 
we proposed (April 18, 2022, 87 FR 22863) a closure of the Federal scup 
fishery despite the high stock levels. The previous regulations 
required that we take that drastic action, not because the stock was at 
risk, but because the measures proposed by the Council would not fully 
constrain harvest to the RHL. For context, the scup biomass is about 
two times larger than the biomass target. Ultimately, given the 
biological, social, and economic considerations, we did not implement 
the closure. Additional details can be found in the final rule (87 FR 
35112, June 9, 2022) for the 2022 recreational management measures. The 
fact that the previous process and regulations often resulted in a 
required restrictive action that was not based on an actual risk of 
overfishing highlights the necessity for change. The Percent Change 
Approach implemented by this action is part of an iterative process to 
build a management system that recognizes the limitations of 
recreational data, while ensuring long-term sustainability of the 
stock. The

[[Page 14505]]

sunset provision will require the Council and Board to examine the 
efficacy of the Percent Change Approach over three years, and to 
develop changes or improvements to the recreational measure-setting 
process as needed.
    Comment 11: Three commenters stated that the framework was not 
based on the best available science because recreational management 
measures would not be set based on the RHL.
    Response: The Percent Change Approach incorporates the best 
scientific information available, including fishing mortality estimates 
and stock size from approved stock assessments, in conjunction with 
estimates of annual harvest, to better understand the impacts of 
recreational harvest on stocks. This approach allows managers to make 
more informed decisions, constrains those decisions to minimize the 
biological risk to stocks at lower stock levels, and reduces the 
socioeconomic impact to fisheries that depend on stocks at higher stock 
levels.
    Comment 12: Two commenters cited excerpts from an SSC peer review 
that was conducted during the development of the range of alternatives 
in the framework.
    Response: Two comments quoted the SSC report, specifically the 
comments of one individual, and staff commentary at the working 
meetings, which were part of the deliberative process. It is important 
to note that these reviews occurred during the development of the 
framework, and were more broadly considering the full range of 
alternatives in this action, including those that were not selected by 
the Council and Board. At the time the reviews were completed, the EA 
had not been drafted, nor had the alternatives been fully developed. 
Further refinement to the approaches considered in this action and 
additional analyses occurred after these meetings, in response to many 
of the SSC's comments.
    Comment 13: Two commenters questioned the rationale behind the 
selection of the percentages used in the percent change approach, 
claiming that they were completely arbitrary.
    Response: The PDT/FMAT conducted a number of analyses of the 
Percent Change Approach including an evaluation of the percentages, and 
a post-hoc evaluation of what changes would have been needed in the 
past compared to the changes that were implemented. The percentages 
ultimately selected were not random or arbitrary; these percentages 
were selected based on an FMAT/PDT analysis that evaluated past 
differences between the RHL and estimated harvest values (i.e., derived 
from MRIP). These percent differences represent historically required 
reductions or liberalizations to achieve, but not exceed, the next 
year's RHL. A percentile approach was applied to the distribution of 
these required liberalizations and reductions over the history of each 
fishery. The percent change was set equal to the average of the 
absolute values of the 40th and 60th percentiles, 25th and 75th 
percentiles, and the 10th and 90th percentiles of the ``required'' 
liberalizations or reductions. Summer flounder and black sea bass 
behave similarly in these analyses, scup was excluded from the analysis 
because the majority of the scup measures over the last decade could 
have been liberalized to a greater degree but were mostly held status 
quo causing a continued high degree of difference between RHL and MRIP 
landing estimates. Using the 25th, 50th, and 75th percentiles for 
summer flounder and black sea bass were roughly equivalent to the 10-, 
20-, and 40-percent changes used in the approach.

National Standard 4

    Comment 14: Three commenters were concerned that the Percent Change 
Approach, constitutes an illegal de facto reallocation between sectors. 
One letter specifically stated that ``Although NMFS just recently 
approved revised allocations that increase the recreational share of 
the summer flounder, scup, and black sea bass fisheries, NMFS appears 
to be tacitly increasing again the recreational allocation through the 
Proposed Rule. By allowing the recreational fishery to exceed its RHL 
and ACL, the agency would create a further reallocation of summer 
flounder, scup, and black sea bass (and potentially bluefish) from the 
commercial sector to the recreational sector.''
    Response: As stated in National Standard 4, an ``allocation'' or 
``assignment'' of fishing privileges is a direct and deliberate 
distribution of the opportunity to participate in a fishery among 
identifiable, discrete user groups or individuals. Any management 
measure (or lack of management) may have incidental allocative effects, 
but only those measures that result in direct distributions of fishing 
privileges will be judged against the allocation requirements of 
National Standard 4. Unlike the commercial/recreational allocation 
amendment referenced in the comment, this action does not constitute a 
direct distribution of fishing privileges.
    This action will not constrain or otherwise penalize or hold the 
commercial fishery accountable for the recreational sector's catch. If 
recreational overages occur, as they have under the previous process, 
the recreational fishery would be held accountable as prescribed by the 
AMs.
    As noted, the Council and Board recently reviewed, and ultimately 
revised, the commercial and recreational allocations for summer 
flounder, scup, and black sea bass. Throughout the allocation process, 
we encouraged the Council and Board to consider options that excluded 
recreational overages from determining revisions to allocations, as 
using those overages as the basis for an increase in recreational 
allocation would be inappropriate. If this process, like the previous 
method to setting recreational management measures, results in ACL 
overages, those overages should likewise not be used as a justification 
for increased recreational quota in future consideration of 
allocations.

Other

    Comment 15: Two commenters stated that a framework adjustment is 
not the appropriate vehicle for such significant changes, and suggested 
that a ``more inclusive and thorough fishery management plan (FMP) 
amendment process'' should have been used to consider the changes 
proposed. One comment stated that the ``fast-tracked'' nature of the 
framework did not allow for public scoping or public comments.
    Response: The Percent Change Approach considered through this 
framework has been a part of an extensive effort (i.e., the 
Recreational Reform Initiative) to address many of the challenges 
associated with recreational fisheries management. The initiative began 
in March 2019, when a steering committee was established to develop 
strategies to increase management flexibility and stability for jointly 
managed recreational fisheries. The Council and Board spent several 
years planning and developing ideas, and then ultimately prioritized 
the Harvest Control Rule action February 2021. Throughout 2021 and 
2022, the Council and Board met jointly six times to discuss the 
framework (and discussed the Recreational Reform Initiative an 
additional six times). The Commission hosted a series of public 
hearings and collected comments in March and April 2022. A subset of 
the Council's SSC conducted two reviews of the process/models. While a 
framework can be a more abbreviated process than an amendment, this 
framework was not. The development of the Harvest Control Rule was a 
multi-year process with numerous opportunities for public 
participation, through the Council and

[[Page 14506]]

Board meetings, public hearings, SSC reviews, and PDT/FMAT meetings. 
Moreover, this action is limited to a 3-year implementation, after 
which it will be replaced or rescinded, or modified and extended
    Comment 16: One commenter suggested that implementing the framework 
would not be ``an effective or appropriate response'' to any of the 
challenges managing recreational fisheries. This letter instead 
suggests that we should ``continue to apply established principles of 
fisheries management, including managing stocks for sustainability and 
abundance, using ecosystem-based approaches, addressing climate impacts 
directly, making improvements to data systems, and managing to achieve 
the greatest benefit to the nation.''
    Response: Use of ecosystem-based approaches, addressing climate 
impacts, and making improvements to data systems are all important 
considerations for the management, both commercial and recreational, of 
these species moving forward. In fact, the Recreational Demand Model, 
being used in conjunction with the Percent Change Approach, was 
developed as part of the Council's Ecosystem Approach to Fishery 
Management's Management Strategy Evaluation. The stock assessment for 
black sea bass is currently undergoing a research track assessment to 
further improve the stock assessment model for this species. While 
these are some steps that are already being taken, they are not short-
term solutions, as they require significant time and resources. Given 
the number of challenges managing recreational fisheries, and the need 
for additional time to work on longer-term solutions, this framework is 
being implemented to respond to those challenges in a timely manner. 
The sunset of the Percent Change Approach also requires the Council and 
Board to explicitly review this action and is intended to allow for 
further improvements to recreational management.
    Comment 17: Two commenters suggested that the current challenges 
faced by managers of these recreational fisheries have been caused by 
the Council's failure to follow the guidelines on management 
uncertainty. The comment suggests that incorporation of management 
uncertainty would have solved an array of problems, i.e., ``better 
prevented overfishing, addressed uncertainty and variability in 
recreational data, and provided more stable and predictable 
regulations, without the need to abandon the current data-based 
management process . . .''
    Response: Including management uncertainty into the process for 
setting recreational management measures would result in setting a 
recreational harvest target below the RHL, and even more restrictive 
recreational management measures. This would exacerbate the disconnect 
between what anglers are observing (e.g., high levels of abundance of 
black sea bass and scup) and the increasingly restrictive management 
measures. Implementing a larger buffer, and further reducing the quota, 
does not recognize that uncertainty applies in both directions--catch 
and biomass may be higher or lower than estimated. Simply restricting 
recreational fisheries more is not solving the fundamental problem, 
particularly when considering the lack of success in continually 
attempting to constrain harvest to a specific limit that, in 
retrospect, was lower than needed.
    Comment 18: One commenter stated that when asked to evaluate 
whether the best available data required a 10-percent increase or a 10-
percent decrease in summer flounder landings, the Council made the 
arbitrary decision not to employ the Percent Change Approach at all.
    Response: The discussions referenced in this comment were specific 
to the 2023 recreational management measures, which will be addressed 
in a separate, forthcoming action. In addition, at the joint December 
2022 meeting, the Council and Board were evaluating various models used 
in support of the development of management measures, and not the 
fundamentals of the approach being implemented through this action.
    Comment 19: One commenter asked about the information that was used 
during the development of the proposed approach, specifically 
concerning the input from fishermen that was received and utilized as 
this action was being formulated.
    Response: This action is part of the broader Recreational Reform 
Initiative, which is an effort of the Council and Commission to improve 
management of the recreational fisheries for summer flounder, scup, 
black sea bass, and bluefish. This initiative aims to address a range 
of challenges in recreational fisheries management. These challenges 
include widespread angler dissatisfaction with some recreational 
management measures, stakeholder perceptions that measures are not 
reflective of stock status, and concerns about how MRIP data are used 
to manage these fisheries.
    The overarching Harvest Control Rule approach was originally 
brought forward as a proposal from six recreational fishing 
organizations through scoping comments on the Summer Flounder, Scup, 
and Black Sea Bass Commercial/Recreational Allocation Amendment. While 
it was not pursued through that action, the Council and Board expressed 
interest in further pursuing the ideas relative to setting recreational 
management measures, which they did, through this framework. After 
initiation of this action in February 2021, a series of public meetings 
and hearings were held to solicit comments and information from the 
public, including the fishing industry. A complete history of the 
action, the data used, and analyses conducted can be found in the EA 
(see ADDRESSES).
    Comment 20: One comment letter from five organizations (the 
American Sportfishing Association, Center for Sportfishing Policy, 
Coastal Conservation Association, Congressional Sportsmen's Foundation, 
and the National Marine Manufacturers Association) supported the 
implementation of the framework. Specifically, the comment letter 
stated that the framework ``. . . aims to address numerous challenges 
currently facing recreational fishery management, including limitations 
of the MRIP data, the need to change measures (sometimes annually) 
based on those data, and recreational measures (bag, size and season) 
not reflecting stock status. Most recently, the 2022 fisheries 
specification process exemplified these challenges and demonstrates the 
need to implement alternative approaches to setting bag, size, and 
season limits in 2023, and beyond''.
    Response: We agree, and have approved the framework as proposed.

Changes From the Proposed Rule

    There are no changes to the measures in this final rule from the 
proposed rule.

Classification

    Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the 
Assistant Administrator has determined that this final rule is 
consistent with the Summer Flounder, Scup, and Black Sea Bass, and 
Bluefish FMPs, other provisions of the Magnuson Stevens Act, and other 
applicable law.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under 5 U.S.C. 553(d)(3) to waive the 30-day delay of effectiveness 
period for this rule, to ensure that the final management measures are 
in place as soon as possible.

[[Page 14507]]

    The Council and Board adopted this Framework/Addendum in June 2022, 
and indicated their intention that this new process would be used for 
development of the 2023 recreational management measures. In December 
of 2022, they used the new process to recommend recreational management 
measures for summer flounder, scup, and black sea bass. We cannot 
implement the recommended 2023 recreational management measures until 
the process implemented through this rule is effective. A delay in the 
effectiveness in this rule would create additional challenges and 
confusion about the 2023 recreational management measures. The summer 
flounder, scup, and black sea bass fishing year began on January 1, 
2023. This is the earliest this rule could be completed. The Council 
submitted the revised framework document on November 21, 2022, and the 
proposed rule was published on December 15, 2022, this final rule is 
being issued as soon as possible.
    The Federal coastwide regulatory measures for recreational summer 
flounder and black sea bass fishing that were codified last year (87 FR 
35112, June 9, 2022) remain in effect until the decision to waive 
Federal measures for 2023 is made. Because the Council and Board-
recommended measures are based on the approach implemented in this 
rule, the states have already developed and have begun implementing 
their conservationally equivalent 2023 measures. Inconsistencies 
between the states' measures and the Federal measures could lead to 
misunderstanding of the applicable regulations and could increase the 
likelihood of noncompliant landings. Additionally, the Federal summer 
flounder measures currently in place are more restrictive than many of 
the measures in State waters, which unnecessarily disadvantage 
federally permitted vessels who are subject to these more restrictive 
measures until the 2023 recreational measures are put in place.
    The measures currently in place for scup and black sea bass are 
more liberal than the measures that will be implemented for 2023. A 
delay in effectiveness of this rule, and a resulting delay of the 
implementation of the 2023 measures, will increase the likelihood that 
the 2023 RHLs and recreational ACLs will be exceeded. We are required 
to implement measures to constrain recreational harvest to prevent 
overfishing.
    In response to this action, unlike actions that require an 
adjustment period to comply with new rules, recreational and charter/
party operators will not have to purchase new equipment or otherwise 
expend time or money to comply with the new management process. 
Additionally the Council and Board already took action, in December 
2022, to recommend recreational management measures based on the new 
process.
    This proposed 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, and to our knowledge, there are no 
changed circumstances. 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: March 1, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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.  648.100, revise paragraphs (a) introductory text, (b) 
introductory text, and (b)(1) to read as follows:


Sec.  648.100  Summer flounder Annual Catch Limit (ACL).

    (a) Annual catch limits. The Monitoring Committee shall recommend 
to the MAFMC separate ACLs for the commercial and recreational summer 
flounder fisheries, the sum total of which shall be equal to the ABC 
recommended by the SSC.
* * * * *
    (b) Performance review. The Monitoring Committee shall conduct a 
detailed review of fishery performance relative to the sector ACLs at 
least every 5 years.
    (1) If one or both of the sector-specific ACLs is exceeded with a 
frequency greater than 25 percent (i.e., more than once in 4 years or 
any 2 consecutive years), the Monitoring Committee will review fishery 
performance information and consider whether changes in measures are 
needed.
* * * * *

0
3. In Sec.  648.101, revise paragraphs (a) introductory text, (a)(1), 
and (b) to read as follows:


Sec.  648.101  Summer flounder Annual Catch Target (ACT).

    (a) Annual catch target. The Monitoring Committee shall identify 
and review the relevant sources of management uncertainty to recommend 
ACTs for the commercial and recreational fishing sectors as part of the 
summer flounder specification process. The Monitoring Committee 
recommendations shall identify the specific sources of management 
uncertainty that were considered, technical approaches to mitigating 
these sources of uncertainty, and any additional relevant information 
considered in the ACT recommendation process.
    (1) Sectors. Commercial and recreational specific ACTs shall be 
less than or equal to the sector-specific ACLs. The Monitoring 
Committee shall recommend any reduction in catch necessary to address 
sector-specific management uncertainty, consistent with this paragraph 
(a).
* * * * *
    (b) Performance review. The Monitoring Committee shall conduct a 
detailed review of fishery performance relative to ACTs in conjunction 
with any ACL performance review, as outlined in Sec.  648.100(b)(1) 
through (3).

0
4. In Sec.  648.102, revise paragraphs (a) introductory text, (a)(6) 
and (11), (b), and (d) to read as follows:


Sec.  648.102  Summer flounder specifications.

    (a) Commercial quota, recreational landing limits, research set-
asides, and other specification measures. The Monitoring Committee 
shall recommend to the MAFMC, through the specifications process, for 
use in conjunction with each ACL and ACT, a sector-specific research 
set-aside, estimates of sector-related discards, a recreational harvest 
limit, and a commercial quota, along with other measures, as needed to 
prevent overages of the applicable specified limits or targets for each 
sector, as prescribed in

[[Page 14508]]

the FMP. The measures to be considered by the Monitoring Committee are:
* * * * *
    (6) Recreational possession limit set from a range of 0 to 15 
summer flounder.
* * * * *
    (11) Modification of existing accountability measures and ACT 
control rules utilized by the Monitoring Committee.
    (b) Specification fishing measures. The MAFMC shall review the 
recommendations of the Monitoring Committee and, based on the 
recommendations and any public comment, recommend to the Regional 
Administrator measures that are projected to constrain the sectors to 
the applicable limit or target as prescribed in the FMP. The MAFMC's 
recommendations must include supporting documentation, as appropriate, 
concerning the environmental and economic impacts of the 
recommendations. The Regional Administrator shall review these 
recommendations and any recommendations of the ASMFC.
* * * * *
    (d) Recreational specification measures. The MAFMC shall review the 
recommendations of the Monitoring Committee and, based on the 
recommendations and any public comment, recommend to the Regional 
Administrator measures that are projected to prevent overages of the 
applicable recreational target, as prescribed in the FMP, for an 
upcoming fishing year or years. The MAFMC's recommendations must 
include supporting documentation, as appropriate, concerning the 
environmental and economic impacts of the recommendations. The MAFMC 
and the ASMFC will recommend that the Regional Administrator implement 
either:
    (1) Coastwide measures. Annual, or multi-year, coastwide management 
measures projected to achieve the applicable recreational target as 
prescribed in the FMP, or
    (2) Conservation equivalent measures. Individual states, or regions 
formed voluntarily by adjacent states (i.e., multi-State conservation 
equivalency regions), may implement different combinations of minimum 
and/or maximum fish sizes, possession limits, and closed seasons that 
achieve equivalent conservation as the coastwide measures established 
under paragraph (e)(1) of this section. Each State or multi-State 
conservation equivalency region may implement measures by mode or area 
only if the proportional standard error of recreational landing 
estimates by mode or area for that State is less than 30 percent.
    (i) After review of the recommendations, the Regional Administrator 
will publish a proposed rule in the Federal Register as soon as 
possible to implement the overall recreational target for the fishing 
year(s), and the ASMFC's recommendation concerning conservation 
equivalency, the precautionary default measures, and coastwide 
measures.
    (ii) The ASMFC will review conservation equivalency proposals and 
determine whether or not they achieve the necessary adjustment to 
recreational landings. The ASMFC will provide the Regional 
Administrator with the individual State and/or multi-State region 
conservation measures for the approved State and/or multi-State region 
proposals and, in the case of disapproved State and/or multi-State 
region proposals, the precautionary default measures that should be 
applied to a State or region. At the request of the ASMFC, 
precautionary default measures would apply to federally permitted 
party/charter vessels and other recreational fishing vessels harvesting 
summer flounder in or from the EEZ when landing in a State that 
implements measures not approved by the ASMFC.
    (iii) After considering public comment, the Regional Administrator 
will publish a final rule in the Federal Register to implement either 
the State or regional conservation equivalency measures or coastwide 
measures to ensure that the applicable specified target is not 
exceeded.
    (iv) The ASMFC may allow states or regions assigned the 
precautionary default measures to resubmit revised management measures. 
The ASMFC will detail the procedures by which the State or region can 
develop alternate measures. The ASMFC will notify the Regional 
Administrator of any resubmitted State or regional proposals approved 
subsequent to publication of the final rule and the Regional 
Administrator will publish a document in the Federal Register to notify 
the public.
* * * * *

0
5. In Sec.  648.103, revise paragraphs (c), (d)(1), and (d)(2)(ii) to 
read as follows:


Sec.  648.103  Summer flounder accountability measures.

* * * * *
    (c) Recreational ACL Evaluation. The recreational sector ACL will 
be evaluated based on a 3-year moving average comparison of total catch 
(landings and dead discards). Both landings and dead discards will be 
evaluated in determining if the 3-year average recreational sector ACL 
has been exceeded.
    (d) * * *
    (1) If biomass is below the threshold, the stock is under 
rebuilding, or biological reference points are unknown. If the most 
recent estimate of biomass is below the BMSY threshold (i.e., B/BMSY is 
less than 0.5),), the stock is under a rebuilding plan, or the 
biological reference points (B or BMSY) are unknown, and the 
recreational ACL has been exceeded, then the exact amount, in pounds, 
by which the most recent 3-year average recreational catch estimate 
exceeded the most recent 3-year average recreational ACL will be 
deducted, in the following fishing year, or as soon as possible, 
thereafter, once catch data are available, from the recreational ACT. 
This payback may be evenly spread over 2 years if doing so allows for 
use of identical recreational management measures across the upcoming 2 
years.
    (2) * * *
    (ii) If the fishing mortality (F) has exceeded FMSY (or the proxy). 
If the most recent estimate of total fishing mortality exceeds FMSY (or 
the proxy), then an adjustment to the recreational ACT will be made as 
soon as possible, once catch data are available, as described in 
paragraph (d)(2)(ii)(A) of this section. If an estimate of total 
fishing mortality is not available for the most recent complete year of 
catch data, then a comparison of total catch relative to the ABC will 
be used.
    (A) Adjustment to Recreational ACT. If an adjustment to the 
following year's Recreational ACT is required, then the ACT will be 
reduced by the exact amount, in pounds, of the product of the overage, 
defined as the difference between the most recent 3-year average 
recreational catch and the most recent 3-year recreational ACL, and the 
payback coefficient, as specified in paragraph (d)(2)(ii)(B) of this 
section. This payback may be evenly spread over 2 years if doing so 
allows for use of identical recreational management measures across the 
upcoming 2 years.
    (B) Payback coefficient. The payback coefficient is the difference 
between the most recent estimate of biomass and BMSY (i.e., 
BMSY-B) divided by one-half of BMSY.
* * * * *

0
6. In Sec.  648.120, revise paragraphs (a) introductory text, (b) 
introductory text, and (b)(1) to read as follows:


Sec.  648.120  Scup Annual Catch Limit (ACL).

    (a) Annual catch limits. The Monitoring Committee shall recommend

[[Page 14509]]

to the MAFMC separate ACLs for the commercial and recreational scup 
fisheries, the sum total of which shall be equal to the ABC recommended 
by the SSC.
* * * * *
    (b) Performance review. The Monitoring Committee shall conduct a 
detailed review of fishery performance relative to the sector ACLs at 
least every 5 years.
    (1) If one or both of the sector-specific ACLs is exceeded with a 
frequency greater than 25 percent (i.e., more than once in 4 years or 
any 2 consecutive years), the Monitoring Committee will review fishery 
performance information and consider whether changes to measures are 
needed.
* * * * *

0
7. In Sec.  648.121, revise paragraphs (a) introductory text, (a)(1), 
and (b) to read as follows:


Sec.  648.121  Scup Annual Catch Target (ACT).

    (a) Annual catch targets. The Monitoring Committee shall identify 
and review the relevant sources of management uncertainty to recommend 
ACTs for the commercial and recreational fishing sectors as part of the 
scup specification process. The Monitoring Committee recommendations 
shall identify the specific sources of management uncertainty that were 
considered, technical approaches to mitigating these sources of 
uncertainty, and any additional relevant information considered in the 
ACT recommendation process.
    (1) Sectors. Commercial and recreational specific ACTs shall be 
less than or equal to the sector-specific ACLs. The Monitoring 
Committee shall recommend any reduction in catch necessary to address 
sector-specific management uncertainty, consistent with this paragraph 
(a).
* * * * *
    (b) Performance review. The Monitoring Committee shall conduct a 
detailed review of fishery performance relative to ACTs in conjunction 
with any ACL performance review, as outlined in Sec.  648.120(b)(1) 
through (3).

0
8. In Sec.  648.122, revise paragraphs (a) introductory text, (a)(7) 
and (14), and (b) to read as follows:


Sec.  648.122  Scup Specifications.

    (a) Commercial quota, recreational landing limits, research set-
asides, and other specification measures. The Monitoring Committee 
shall recommend to the MAFMC and the ASMFC through the specifications 
process, for use in conjunction with each ACL and ACT, a sector-
specific research set-aside, estimates of sector-related discards, a 
recreational harvest limit, and a commercial quota, along with other 
measures, as needed, to prevent overages of the applicable specified 
limits or targets for each sector, as prescribed in the FMP. The 
measures to be considered by the Monitoring Committee are as follows:
* * * * *
    (7) Recreational possession limit set from a range of 0 to 50 scup.
* * * * *
    (14) Modification of existing AM measures and ACT control rules 
utilized by the Monitoring Committee.
    (b) Specification of fishing measures. The MAFMC shall review the 
recommendations of the Monitoring Committee. Based on these 
recommendations and any public comment, the MAFMC shall recommend to 
the Regional Administrator measures necessary to prevent overages of 
the appropriate specified limits or targets for each sector, as 
prescribed in the FMP. The MAFMC's recommendation must include 
supporting documentation, as appropriate, concerning the environmental 
and economic impacts of the recommendations. The Regional Administrator 
shall review these recommendations and any recommendations of the 
ASMFC. After such review, NMFS will publish a proposed rule in the 
Federal Register to implement a commercial quota, specifying the amount 
of quota allocated to each of the three periods, possession limits for 
the Winter I and Winter II periods, including possession limits that 
result from potential rollover of quota from Winter I to Winter II, the 
percentage of landings attained during the Winter I fishery at which 
the possession limits will be reduced, a recreational harvest limit, 
and additional management measures for the commercial and recreational 
fisheries.
* * * * *

0
9. In Sec.  648.123, revise paragraphs (c), (d) introductory text, 
(d)(1), (d)(2)(ii) introductory text, and (d)(2)(ii)(A) to read as 
follows:


Sec.  648.123  Scup accountability measures.

* * * * *
    (c) Recreational ACL. The recreational sector ACL will be evaluated 
based on a 3-year moving average comparison of total catch (landings 
and dead discards). Both landings and dead discards will be evaluated 
in determining if the 3-year average recreational sector ACL has been 
exceeded.
    (d) Recreational AMs. If the recreational ACL is exceeded, then the 
following procedure will be followed:
    (1) If biomass is below the threshold, the stock is under 
rebuilding, or biological reference points are unknown. If the most 
recent estimate of biomass is below the BMSY threshold (i.e., B/BMSY is 
less than 0.5), the stock is under a rebuilding plan, or the biological 
reference points (B or BMSY) are unknown, and the recreational ACL has 
been exceeded, then the exact amount, in pounds, by which the most 
recent 3-year average recreational catch estimate exceeded the most 
recent 3-year average recreational ACL will be deducted in the 
following fishing year, or as soon as possible, thereafter, once catch 
data are available, from the recreational ACT. This payback may be 
evenly spread over 2 years if doing so allows for use of identical 
recreational management measures across the upcoming 2 years.
    (2) * * *
    (ii) If the fishing mortality (F) has exceeded FMSY (or the proxy). 
If the most recent estimate of total fishing mortality exceeds FMSY (or 
the proxy), then an adjustment to the recreational ACT will be made as 
soon as possible once catch data are available, as described in 
paragraph (d)(2)(ii)(A) of this section. If an estimate of total 
fishing mortality for the most recent complete year of catch data is 
not available, then a comparison of total catch relative to the ABC 
will be used.
    (A) Adjustment to Recreational ACT. If an adjustment to the 
following year's Recreational ACT is required, then the ACT will be 
reduced by the exact amount, in pounds, of the product of the overage, 
defined as the difference between the most recent 3-year average 
recreational catch and the most recent 3-year average recreational ACL, 
and the payback coefficient, as specified in paragraph (d)(2)(ii)(B) of 
this section. This payback may be evenly spread over 2 years if doing 
so allows for use of identical recreational management measures across 
the upcoming 2 years.
* * * * *

0
10. In Sec.  648.140, revise paragraphs (a) introductory text, (b) 
introductory text, and (b)(1) to read as follows:


Sec.  648.140  Black sea bass Annual Catch Limit (ACL).

    (a) Annual Catch Limits. The Monitoring Committee shall recommend 
to the MAFMC separate ACLs for the commercial and recreational scup 
fisheries, the sum total of which shall be equal to the ABC recommended 
by the SSC.
* * * * *

[[Page 14510]]

    (b) Performance review. The Monitoring Committee shall conduct a 
detailed review of fishery performance relative to the sector ACLs at 
least every 5 years.
    (1) If one or both of the sector-specific ACLs is exceeded with a 
frequency greater than 25 percent (i.e., more than once in 4 years or 
any 2 consecutive years), the Monitoring Committee will review fishery 
performance information and consider whether changes to measures are 
needed.
* * * * *

0
11. In Sec.  648.141, revise paragraphs (a) introductory text, (a)(1), 
and (b) to read as follows:


Sec.  648.141  Black sea bass Annual Catch Target (ACT).

    (a) Annual Catch Targets. The Monitoring Committee shall identify 
and review the relevant sources of management uncertainty to recommend 
ACTs for the commercial and recreational fishing sectors as part of the 
black sea bass specification process. The Monitoring Committee 
recommendations shall identify the specific sources of management 
uncertainty that were considered, technical approaches to mitigating 
these sources of uncertainty, and any additional relevant information 
considered in the ACT recommendation process.
    (1) Sectors. Commercial and recreational specific ACTs shall be 
less than or equal to the sector-specific ACLs. The Monitoring 
Committee shall recommend any reduction in catch necessary to address 
sector-specific management uncertainty, consistent with this paragraph 
(a).
* * * * *
    (b) Performance review. The Monitoring Committee shall conduct a 
detailed review of fishery performance relative to ACTs in conjunction 
with any ACL performance review, as outlined in Sec.  648.140(b)(1) 
through (3).

0
12. In Sec.  648.142, revise paragraphs (a) introductory text, (a)(7) 
and (10), (b), (d) introductory text, (d)(1), and (d)(2)(i) through 
(iv) 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:
* * * * *
    (7) A recreational possession limit.
* * * * *
    (10) Recreational State conservation equivalent and precautionary 
default measures utilizing possession limits, minimum fish sizes, and/
or seasons.
* * * * *
    (b) Specification fishing measures. The MAFMC shall review the 
Monitoring Committee recommendations and, based on the recommendations 
and public comment, make recommendations to the Regional Administrator 
on measures projected to constrain the sectors to the applicable limit 
or target as prescribed in the FMP. Included in the recommendation will 
be supporting documents, as appropriate, concerning the environmental 
and economic impacts of the final rule. The Regional Administrator will 
review these recommendations and any recommendations of the ASMFC. 
After such review, the Regional Administrator will publish a proposed 
rule in the Federal Register to implement a commercial quota, a 
recreational harvest limit, and additional management measures for the 
commercial fishery.
* * * * *
    (d) Recreational specification measures. The Monitoring Committee 
shall recommend to the MAFMC and ASMFC measures that are projected to 
prevent overages of the applicable recreational target as prescribed in 
the FMP. The MAFMC shall review these recommendations and, based on the 
recommendations and any public comment, recommend recreational 
management measures to the Regional Administrator. The MAFMC's 
recommendations must include supporting documentation, as appropriate, 
concerning the environmental and economic impacts of the 
recommendations. The MAFMC and the ASMFC will recommend that the 
Regional Administrator implement either:
    (1) Coastwide measures. Annual coastwide management measures that 
constrain the recreational black sea bass fishery to the recreational 
target as specified in the fishery management plan, or
    (2) * * *
    (i) After review of the recommendations, the Regional Administrator 
will publish a proposed rule in the Federal Register as soon as 
possible to implement the overall recreational target required for the 
fishing year(s), and the ASMFC's recommendation concerning conservation 
equivalency, the precautionary default measures, and coastwide 
measures.
    (ii) The ASMFC will review conservation equivalency proposals and 
determine whether or not they achieve the necessary recreational 
target. The ASMFC will provide the Regional Administrator with the 
individual State and/or multi-State region conservation measures for 
the approved State and/or multi-State region proposals and, in the case 
of disapproved State and/or multi-State region proposals, the 
precautionary default measures that should be applied to a State or 
region. At the request of the ASMFC, precautionary default measures 
would apply to federally permitted party/charter vessels and other 
recreational fishing vessels harvesting black sea bass in or from the 
EEZ when landing in a State that implements measures not approved by 
the ASMFC.
    (iii) After considering public comment, the Regional Administrator 
will publish a final rule in the Federal Register to implement either 
the State or regional conservation equivalency measures or coastwide 
measures to ensure that the applicable specified target is not 
exceeded.
    (iv) The ASMFC may allow states or regions assigned the 
precautionary default measures to resubmit revised management measures. 
The ASMFC will detail the procedures by which the State or region can 
develop alternate measures. The ASMFC will notify the Regional 
Administrator of any resubmitted State or regional proposals approved 
subsequent to publication of the final rule and the Regional 
Administrator will publish a document in the Federal Register to notify 
the public.
* * * * *

0
13. In Sec.  648.143, revise paragraphs (c) and (d) to read as follows:


Sec.  648.143  Black sea bass accountability measures.

* * * * *
    (c) Recreational ACL Evaluation. The recreational sector ACL will 
be evaluated based on a 3-year moving average comparison of total catch 
(landings and dead discards). Both landings and dead discards will be 
evaluated in determining if the 3-year average recreational sector ACL 
has been exceeded.
    (d) Recreational AMs. If the recreational ACL is exceeded, then the 
following procedure will be followed:

[[Page 14511]]

    (1) If biomass is below the threshold, the stock is under 
rebuilding, or biological reference points are unknown. If the most 
recent estimate of biomass is below the BMSY threshold (i.e., B/BMSY is 
less than 0.5), the stock is under a rebuilding plan, or the biological 
reference points (B or BMSY) are unknown, and the recreational ACL has 
been exceeded, then the exact amount, in pounds, by which the most 
recent 3-year average recreational catch estimate exceeded the most 
recent 3-year average recreational ACL will be deducted in the 
following fishing year, or as soon as possible thereafter, once catch 
data are available, from the recreational ACT. This payback may be 
evenly spread over 2 years if doing so allows for use of identical 
recreational management measures across the upcoming 2 years.
    (2) If biomass is above the threshold, but below the target, and 
the stock is not under rebuilding. If the most recent estimate of 
biomass is above the biomass threshold (B/BMSY is greater 
than 0.5), but below the biomass target (B/BMSY is less than 
1.0), and the stock is not under a rebuilding plan, then the following 
AMs will apply:
    (i) If the Recreational ACL has been exceeded. If the Recreational 
ACL has been exceeded, then adjustments to the recreational management 
measures, taking into account the performance of the measures and 
conditions that precipitated the overage, will be made in the following 
fishing year, or as soon as possible thereafter, once catch data are 
available, as a single-year adjustment.
    (ii) If the fishing mortality (F) has exceeded FMSY (or the proxy). 
If the most recent estimate of total fishing mortality exceeds FMSY (or 
the proxy) then an adjustment to the recreational ACT will be made as 
soon as possible once catch data are available, as described in 
paragraph (d)(2)(ii)(A) of this section. If an estimate of total 
fishing mortality for the most recent complete year of catch data is 
not available, then a comparison of total catch relative to the ABC 
will be used.
    (A) Adjustment to Recreational ACT. If an adjustment to the 
following year's Recreational ACT is required, then the ACT will be 
reduced by the exact amount, in pounds, of the product of the overage, 
defined as the difference between the most recent 3-year average 
recreational catch and the most recent 3-year average recreational ACL, 
and the payback coefficient, as specified in paragraph (d)(2)(ii)(B) of 
this section. This payback may be evenly spread over 2 years if doing 
so allows for use of identical recreational management measures across 
the upcoming 2 years.
    (B) Payback coefficient. The payback coefficient is the difference 
between the most recent estimate of biomass and BMSY (i.e., 
BMSY-B) divided by one-half of BMSY.
    (3) If biomass is above BMSY. If the most recent estimate of 
biomass is above BMSY (i.e., B/BMSY is greater 
than 1.0), then adjustments to the recreational management measures, 
taking into account the performance of the measures and conditions that 
precipitated the overage, will be made in the following fishing year, 
or as soon as possible thereafter, once catch data are available, as a 
single-year adjustment.
* * * * *

0
14. In Sec.  648.160, revise paragraph (b) to read as follows:


Sec.  648.160  Bluefish Annual Catch Limit (ACL).

* * * * *
    (b) Performance review. The Bluefish Monitoring Committee shall 
conduct a detailed review of fishery performance relative to the ACL at 
least every 5 years.
    (1) If the ACL is exceeded with a frequency greater than 25 percent 
(i.e., more than once in 4 years or any 2 consecutive years), the 
Bluefish Monitoring Committee will review fishery performance 
information and consider whether changes to measures are needed.
    (2) The MAFMC may specify more frequent or more specific ACL 
performance review criteria as part of a stock rebuilding plan 
following the determination that the bluefish stock has become 
overfished.
    (3) Performance reviews shall not substitute for annual reviews 
that occur to ascertain if prior year ACLs have been exceeded, but may 
be conducted in conjunction with such reviews.

0
15. In Sec.  648.162, revise paragraphs (a) introductory text and (c) 
to read as follows:


Sec.  648.162  Bluefish specifications.

    (a) Recommended measures. Based on the annual review and requests 
for research quota as described in paragraph (h) of this section, the 
Bluefish Monitoring Committee shall recommend to the MAFMC and the 
ASMFC the following measures to ensure that the ACL specified by the 
process outlined in Sec.  648.160(a) will not be exceeded:
* * * * *
    (c) Annual fishing measures. The MAFMC shall review the 
recommendations of the Bluefish Monitoring Committee. Based on these 
recommendations and any public comment, the MAFMC shall recommend to 
the Regional Administrator by September 1 measures necessary to prevent 
overages of the applicable specified limits or targets for each sector 
as prescribed in the FMP. The MAFMC's recommendations must include 
supporting documentation, as appropriate, concerning the environmental, 
economic, and social impacts of the recommendations. The Regional 
Administrator shall review these recommendations and any 
recommendations of the ASMFC. After such review, NMFS will publish a 
proposed rule in the Federal Register as soon as practicable to 
implement ACLs, ACTs, research quota, a coastwide commercial quota, 
individual State commercial quotas, a recreational harvest limit, and 
additional management measures for the commercial and recreational 
fisheries to prevent overages of the applicable specified limits or 
targets for each sector as prescribed in the FMP. After considering 
public comment, NMFS will publish a final rule in the Federal Register.
* * * * *

0
16. In Sec.  648.163 revise paragraphs (a), (d), and (f) to read as 
follows:


Sec.  648.163  Bluefish Accountability Measures (AMs).

    (a) ACL overage evaluation. The ACLs will be evaluated based on a 
single-year examination of total catch (landings and dead discards). 
Both landings and dead discards will be evaluated in determining if the 
ACLs have been exceeded.
* * * * *
    (d) Recreational landings AM when the recreational ACL is exceeded 
and no sector-to-sector transfer of allowable landings has occurred. If 
the recreational ACL is exceeded and no transfer between the commercial 
and recreational sector was made for the fishing year, as outlined in 
Sec.  648.162(b)(2), then the following procedure will be followed:
    (1) If biomass is below the threshold, the stock is under 
rebuilding, or biological reference points are unknown. If the most 
recent estimate of biomass is below the BMSY threshold 
(i.e., B/BMSY is less than 0.5), the stock is under a 
rebuilding plan, or the biological reference points (B or 
BMSY) are unknown, and the recreational ACL has been 
exceeded, then the exact amount, in pounds, by which the most recent 
year's recreational catch estimate

[[Page 14512]]

exceeded the most recent year's recreational ACL will be deducted from 
the following year's recreational ACT, or as soon as possible 
thereafter, once catch data are available. This payback may be evenly 
spread over 2 years if doing so allows for use of identical 
recreational management measures across the upcoming 2 years.
    (2) If biomass is above the threshold, but below the target, and 
the stock is not under rebuilding. If the most recent estimate of 
biomass is above the biomass threshold (B/BMSY is greater 
than 0.5), but below the biomass target (B/BMSY is less than 
1.0), and the stock is not under a rebuilding plan, then the following 
AMs will apply:
    (i) If the recreational ACL has been exceeded. If the recreational 
ACL has been exceeded, then adjustments to the recreational management 
measures, taking into account the performance of the measures and 
conditions that precipitated the overage, will be made in the following 
fishing year, or as soon as possible thereafter, once catch data are 
available, as a single-year adjustment.
    (ii) If the fishing mortality (F) has exceeded FMSY (or the proxy). 
If the most recent estimate of total fishing mortality exceeds FMSY (or 
the proxy) then an adjustment to the recreational ACT will be made as 
soon as possible once catch data are available. If an estimate of total 
fishing mortality for the most recent complete year of catch data is 
not available, then a comparison of total catch relative to the ABC 
will be used.
    (A) Adjustment to Recreational ACT. If an adjustment to the 
following year's Recreational ACT is required, then the ACT will be 
reduced by the exact amount, in pounds, of the product of the 
recreational ACL overage and the payback coefficient, as specified in 
paragraph (d)(2)(ii)(B) of this section. This payback may be evenly 
spread over 2 years if doing so allows for use of identical 
recreational management measures across the upcoming 2 years.
    (B) Payback coefficient. The payback coefficient is the difference 
between the most recent estimates of BMSY and biomass (i.e., 
BMSY- B) divided by one-half of BMSY.
    (3) If biomass is above BMSY. If the most recent estimate of 
biomass is above BMSY (i.e., B/BMSY is greater than 1.0), then 
adjustments to the recreational management measures, taking into 
account the performance of the measures and conditions that 
precipitated the overage, will be made in the following fishing year, 
or as soon as possible thereafter, once catch data are available, as a 
single-year adjustment.
* * * * *
    (f) Non-landing AMs. In the event that the fishery-level ACL has 
been exceeded and the overage has not been accommodated through the AM 
measures in paragraphs (a) through (d) of this section, then the exact 
amount, in pounds, by which the fishery-level ACL was exceeded shall be 
deducted, as soon as possible, from subsequent, single fishing year 
ACTs. The payback will be applied to each sector's ACT in proportion to 
each sector's contribution to the overage.
* * * * *
[FR Doc. 2023-04588 Filed 3-8-23; 8:45 am]
BILLING CODE 3510-22-P