Fisheries of the Northeastern United States; Amendment 7 to the Atlantic Bluefish Fishery Management Plan

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS approves and implements measures included in Amendment 7 to the Atlantic Bluefish Fishery Management Plan, as submitted by the Mid-Atlantic Fishery Management Council. This amendment revises the goals and objectives of the fishery management plan, reallocates quota between the commercial and recreational fisheries, reallocates commercial quota among the states, implements a rebuilding plan, revises the sector quota transfer process, and revises how management uncertainty is applied during the specifications process. Amendment 7 is intended to use the best scientific information available and respond to changes in stock health and distribution, while recognizing economic need and reliance throughout the management area.

DATES:

Effective January 1, 2022.

ADDRESSES:

The Mid-Atlantic Fishery Management Council prepared an environmental assessment (EA) for Amendment 7 to the Atlantic Bluefish Fishery Management Plan that describes the action and other considered alternatives. The EA provides a thorough analysis of the biological, economic, and social impacts of the measures implemented by this rule and the other alternatives considered, a Regulatory Impact Review, and economic analysis. Copies of Amendment 7, including the EA, the Regulatory Flexibility Act analyses, and other supporting documents for this action, are available upon request from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N State Street, Dover, DE 19901. These documents are also accessible via the internet at https://www.mafmc.org/supporting-documents.

FOR FURTHER INFORMATION CONTACT:

Cynthia Ferrio, Fishery Policy Analyst, (978) 281-9180.

SUPPLEMENTARY INFORMATION:

Background

The Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission) cooperatively manage bluefish from Maine to Florida under the Atlantic Bluefish Fishery Management Plan (FMP). This joint Bluefish FMP was adopted in 1990. Since that time, the only substantial changes to management measures were made through Amendment 1 to the FMP in 2000, which established most measures and regulations currently managing the fishery, based on fishery data from 1981-1989. The Council and Commission initiated Amendment 7 to the FMP as a joint action in December 2017 to respond to changes in the bluefish fishery that have occurred over the past several decades while the FMP has remained largely unaltered. When first initiated, Amendment 7 was intended to address a comprehensive range of management issues, from updating the goals and objectives of the FMP to the allocation and transfer of quota between the commercial and recreational sectors.

Following the 2019 operational stock assessment's determination of the bluefish stock as overfished, the Council and the Commission's Bluefish Management Board (Board) added a rebuilding plan to the list of measures in Amendment 7. On June 8, 2021, the Council and Board took final action to adopt Amendment 7 in its entirety, with the intent that the measures would be effective and be used to set specifications for the 2022 fishing year, beginning on January 1, 2022.

NMFS published a Notification of Availability (NOA) for Amendment 7 in the Federal Register on September 1, 2021 (86 FR 48968), with a comment period ending on November 1, 2021. NMFS published a proposed rule for this action in the Federal Register on September 13, 2021 (86 FR 50866), with a comment period ending on October 13, 2021. See the Comments and Responses section for additional detail. The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) allows NMFS as the implementing agency to approve, partially approve, or disapprove measures recommended by the Council in a regulatory amendment based on whether the measures are consistent with the FMP, the Magnuson-Stevens Act and its National Standards, and other applicable law. After considering public comment on both the NOA and proposed rule, NMFS approved Amendment 7 in its entirety on November 12, 2021. This rule implements the management measures of Amendment 7.

Approved Measures

The purpose of this action is to implement a rebuilding plan for bluefish, as required by the Magnuson-Stevens Act, and to update the FMP using the best scientific information available to respond to changes in the fishery over time. NMFS approved all measures proposed in Amendment 7, as approved by the Council and Commission. This action implements Amendment 7 to the Bluefish FMP, as described below. For a more detailed description of each measure, see the Federal Register notice on the proposed rule prepared for this action.

FMP Goals and Objectives

Amendment 7 revises the bluefish goals and objectives that were adopted in 1991 to better reflect the current fishery. The following revisions were developed with extensive input from the public to better guide management of the bluefish fishery.

• Goal 1: Conserve the bluefish resource through stakeholder engagement to maintain sustainable recreational fishing and commercial harvest.

○ Objective 1.1: Achieve and maintain a sustainable spawning stock biomass and rate of fishing mortality.

○ Objective 1.2: Promote practices that reduce release mortality within the recreational and commercial fishery.

○ Objective 1.3: Maintain effective coordination between the National Marine Fisheries Service, Council, Commission, and member states by promoting compliance and to support the development and implementation of management measures.

○ Objective 1.4: Promote compliance and effective enforcement of regulations.

○ Objective 1.5: Promote science, monitoring, and data collection that support and enhance effective ecosystem-based management of the bluefish resource.

• Goal 2: Provide fair and equitable access to the fishery across all user groups throughout the management unit.

○ Objective 2.1: Ensure the implementation of management measures provides fair and equitable access to the resource across all user groups within the management unit.

○ Objective 2.2: Consider the economic and social needs and priorities of all groups that access the bluefish resource in the development of new management measures.

○ Objective 2.3: Maintain effective coordination with stakeholder groups to ensure optimization of economic and social benefits.

Quota Reallocation Between the Commercial and Recreational Fishery Sectors

This action allocates 14 percent of the annual catch limit (ACL) to the commercial fishery, and 86 percent to the recreational fishery, representing a 3-percentage point shift from the prior split (17 percent commercial and 83 percent recreational). The initial sector allocations were based on landings data from 1981-1989, and these revised sector allocations are based on updated landings data from 2009-2018. Catch data from 1981-2018, and landings data from 2014-2018, also resulted in the same allocation percentages.

Commercial Quota Reallocation Among the States

The coastwide commercial quota for bluefish is allocated annually to each state within the management unit from Maine to Florida based on a percentage determined in the FMP. Amendment 7 revises these commercial quota allocations among the states based on a recent, representative 10 years of landings data (2009-2018) for the commercial fishery to better capture how the stock and fishing activity have shifted over time. These revised allocations also include a 0.1-percent minimum default allocation to ensure that no state in the management unit is excluded from the commercial fishery entirely. This action will also phase in the changes in quota allocation over a period of seven years, beginning in 2022.

Rebuilding Plan

The 2019 operational assessment determined that the Atlantic bluefish stock is overfished but not subject to overfishing. Amendment 7 implements a rebuilding plan using a constant fishing mortality model (F = 0.154) to rebuild the stock in seven years, beginning in fishing year 2022. This rebuilding plan was selected because it allows for the least disruption to industry and minimizes negative socio-economic impacts, while still rebuilding the stock within the 10-year period required by the Magnuson-Stevens Act. This rebuilding will be reviewed and revised as necessary every 2 years, as required by section 304(e)(7) of the Magnuson-Stevens Act. Specifications for the 2022 fishing year will be included in a separate rulemaking action and will be based on this rebuilding plan.

Sector Quota Transfer

This action revises the sector transfer measures within the Bluefish FMP to allow quota to be transferred in either direction between the fishery sectors (from commercial to recreational or vice versa). This amendment also revises the maximum transfer cap to be 10-percent of the acceptable biological catch, allowing the size of the transfer to scale with the biomass of the stock. Sector transfers may not occur when the bluefish stock is overfished or subject to overfishing.

Management Uncertainty in the Specifications Process

This amendment revises how management uncertainty is accounted for during the specifications process. Previously, the fishery-level ACL could be reduced by a buffer to account for sources of management uncertainty before quota is allocated to the separate commercial and recreational fishery sectors. This action revises the specifications process so that quota is allocated to each sector first, and then a management uncertainty buffer may be applied separately within each sector. This targeted approach provides more management flexibility, and allows for the identification of sources of management uncertainty that are specific to one sector, but may not be present in the other.

Comments and Responses

We received 10 comments during the NOA and proposed rule comment periods. Three of the comments received were unrelated to the bluefish fishery and this action and are not addressed further. Of the comments received that were relevant to this action, there was balanced support for, and opposition to, this amendment. No changes were made to the proposed measures in this final rule as a result of these comments.

Comment 1: An anonymous commenter strongly supported this action, specifically the rebuilding plan, noting the long-term biological and economic benefits.

Response 1: NMFS agrees and is approving Amendment 7 in its entirety, including the rebuilding plan.

Comment 2: Two comments from for-hire recreational head boat captains expressed distrust in the data used to develop this action. The commenters stated that the recreational fishery is catching more bluefish than the commercial gillnet vessels and should be allocated more quota. Neither commenter believes that overfishing of bluefish is occurring, and both think that the recreational quotas should be increased while commercial quotas should be decreased.

Response 2: The best scientific information available was used to develop this action and calculate the percentages of the quota to be reallocated to each sector. Additionally, this action used a more recent time period as the basis for the recreational and commercial allocations to better reflect the current conditions of the stock and the fishery. Catch data do indicate that over 85 percent of bluefish caught on the Atlantic coast are caught by the recreational sector. As a result, Amendment 7 does increase the amount of annual quota allocated to the recreational sector and decrease the amount to the commercial sector in its sector reallocation; to better reflect the needs of the overall fishery. NMFS agrees that overfishing does not appear to be occurring at this time.

Comment 3: A fisheries wholesaler from Florida submitted a comment expressing concern about the loss of commercial quota to Florida under this action, as well as a lack of confidence in the Marine Recreational Information Program (MRIP) data used for the recreational fishery. The commenter suggested that the proposed state allocations be reconsidered to account for unforeseen bad weather in recent years, which skewed landings lower in some states (such as Florida). The commenter also suggested that MRIP be improved, especially with regard to accounting for dead discards and the difference between private anglers and charter/party/head boat catch.

Response 3: The commercial quota reallocation in this action is based on the best scientific data available, and the percentages allocated to each state were calculated using landings data from a 10-year period that should balance out any outlier years due to bad weather. The new commercial allocations are intended to be the best representation of where the bluefish stock is shifting, and where the fishery has been operating in recent years in an effort to minimize the need for state-to-state transfers. However, those transfers are still available as a tool to prevent a state overage in years of high landings. NMFS is also phasing in the implementation of the commercial quota reallocation over seven years to allow states and industry to adjust to the changes more easily.

Comment 4: One commenter expressed strong support for the action, noting specific approval of the rebuilding plan and the increased regulatory flexibility introduced by Amendment 7. This commenter also asked what agency regulates the bluefish fishery, and enforces and manages the commercial fishery quotas; as well as if any regulations are in place to reduce the damaging effects of gillnets.

Response 4: NMFS agrees and is approving and implementing Amendment 7. By doing this, and as described in the EA and supporting documents, NMFS is the agency responsible for managing the Federal bluefish fishery and the measures in this amendment. Further, all of the details of the gear requirements and fishery impacts are described in the EA for this action and the Bluefish FMP.

Comment 5: An anonymous college student submitted a comment in support of Amendment 7. However, the commenter misunderstood the rebuilding plan measures in this action as a plan to stockpile/restock rivers and spawning “bodies of water” with juvenile bluefish to increase the coastal populations, which is inaccurate. The comment also includes a few questions about impacts to habitat and other fish species.

Response 5: The rebuilding plan included in this action works toward an improved stock status by managing catch limits and minimizing fishing mortality of bluefish, not by restocking spawning grounds or affecting recruitment. All of the questions about impacts of Amendment 7 are clearly addressed and described in the EA for the action.

Comment 6: A commenter from New Jersey wrote that while it is important to restrict bluefish catch to rebuild the stock, the recreational possession limit for shore anglers and boat fishermen should be the same at five fish.

Response 6: This amendment does not address the recreational management measures, such as bag limits. These measures are reviewed during the annual specifications process.

Changes From the Proposed Rule

There are no changes to the measures from the proposed rule.

Classification

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that Amendment 7 to the Atlantic Bluefish FMP is necessary for the conservation and management of the Atlantic bluefish fishery, and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

The Council reviewed the regulations for this action and deemed them necessary and appropriate to implement consistent with section 303(c) of the Magnuson-Stevens Act.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

This final rule does not duplicate, conflict, or overlap with any existing Federal rules.

This action contains no information collection requirements under the Paperwork Reduction Act of 1995.

Final Regulatory Flexibility Analysis

A final regulatory flexibility analysis (FRFA) was prepared for this action pursuant to 5 U.S.C. 604(a), and is included in this final rule. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, and a summary of the analyses completed to support the action. A public copy of the EA containing the IRFA is available from the Council (see ADDRESSES ). The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated here.

A Summary of the Significant Issues Raised by the Public in Response to the IRFA, a Summary of the Agency's Assessment of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result of Such Comments

NMFS did not receive any comments in response to the IRFA or regulatory flexibility analysis (RFA) process. Refer to the Comments and Responses section of this rule's preamble for more detail on the public comments that were received on this action. No changes to the proposed rule were made as a result of public comments.

Description and Estimate of Number of Small Entities to Which the Rule Would Apply

This final rule affects those small entities engaged in commercial fishing operations in the Atlantic bluefish fishery (those with commercial bluefish permits), and those with Federal party/charter recreational permits for bluefish. Private recreational anglers are not considered “entities” under the RFA, thus economic impacts on private anglers are not considered here. For the purposes of the RFA analysis, the ownership entities (or firms), not the individual vessels, are considered to be the regulated entities. Ownership entities are defined as those entities or firms with common ownership personnel as listed on the permit application. Because of this, some vessels with bluefish permits may be considered to be part of the same firm because they may have the same owners. To identify these small and large firms, vessel ownership data from the permit database were grouped according to common owners and sorted by size. In terms of RFA, a business primarily engaged in commercial fishing is classified as a small business if it has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. A business primarily engaged in for-hire (party/charter) fishing is classified as a small business if it has combined annual receipts not in excess of $8 million.

The current ownership data set used in this analysis is based on calendar years 2018-2020 (the most recent and complete data available). According to the vessel ownership database, 526 commercial fishing affiliate firms landed bluefish during the 2018-2020 period, with 521 of those entities categorized as small businesses, and 5 categorized as large businesses. The 3-year average (2018-2020) combined gross receipts (all species combined) for all small entities only was $197,251,017 and the average bluefish receipts was $899,490; this indicates that bluefish revenues contributed approximately 0.46 percent of the total gross receipts for these small entities.

For the recreational for-hire (party/charter) fishery, 361 for-hire affiliate firms reported revenue from recreational fishing for various species from 2018-2020. All 361 of those firms are categorized as small businesses. It is not possible to derive what proportion of the overall revenues for these for-hire firms came from fishing activities for an individual species. Nevertheless, given the popularity of bluefish as a recreational species in the Mid-Atlantic and New England, it is likely that revenues generated from bluefish may be somewhat important for many of these firms at certain times of the year. The 3-year average (2018-2020) combined gross receipts (all for-hire fishing activity combined) for these small entities was $49,916,903, ranging from less than $10,000 for 105 entities (lowest value $46) to over $1,000,000 for 8 entities (highest value $3.6 million).

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

There are no new reporting, recordkeeping, or other compliance requirements included in this final rule.

Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes

As noted in the proposed rule and the IRFA, this amendment implements several measures that could potentially impact small businesses in both the commercial and recreational sectors of the bluefish fishery; most notably the reallocation of quota among the sectors and states, the rebuilding plan, and the revision of the sector quota transfer measures. The approved measures (preferred alternatives) for these main issues were chosen and developed with the intent to minimize negative impacts to small businesses, while still achieving the overall purpose and need of the action.

In the reallocation of quota between the commercial and recreational sectors, the 3-percentage point shift to the recreational sector is more representative of how the overall fishery currently operates based on the most recent catch data. While this may have a slight negative impact on commercial businesses, it would comparably benefit recreational businesses. There were other alternatives considered for this sector reallocation, but the difference in their economic impacts were negligible. Revisions to the sector transfer measures could also further mitigate any potential negative impacts to small businesses from the sector reallocation. The amendment now allows quota (in amounts up to 10-percent of the year's acceptable biological catch) to be transferred from either sector to the other (from commercial to recreational or vice versa) during the specifications process. This management tool allows for additional flexibility and supplementation of quota to either sector in a year when the assigned allocations may not support the business needs of the sector.

Similar to the sector reallocations, the approved measures for the reallocation of commercial quota among the states is based on a recent 10 years of landings data, and is intended to be a better representation of how and where bluefish are already harvested to minimize the need for inseason state transfers. Because these alternatives do not affect the total amount of quota available in the fishery, but rather how it is distributed geographically, it is unlikely that they would have a direct economic impact on commercial businesses as a whole. However, the alternatives may have a disproportionate, indirect impact on some businesses more than others. The range of alternatives considered for how to reallocate this quota among the states did not have a difference in potential impacts when compared to the preferred alternative. To mitigate potential negative effects on entities in states that would experience the largest degree of change in commercial allocation, all changes in allocation are being phased in equally over seven years; making the difference in quota allocation that each state experiences each year much smaller (one seventh of the total), and thus minimizing the immediate magnitude of any potential negative effects as a result.

In terms of the rebuilding plan, the constant fishing mortality rebuilding plan was chosen because it contains more gradual changes to the stock with higher allowed quotas; maximizing economic stability and minimizing disruption of business operations while still rebuilding the stock within the necessary 10 years.

Overall, NMFS does not anticipate significant economic impacts on small entities as a result of implementing the measures of this amendment. While most measures have the potential to impact small businesses, these impacts are expected to largely be indirect and to have minimal direct economic effects. Public input was solicited and considered throughout the development of this amendment, and the economic impact on small businesses was minimized wherever possible, as detailed in the choices noted above.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as a small entity compliance guide was prepared and will be sent to all holders of Federal permits issued for the bluefish fishery. In addition, copies of this final rule and guide ( i.e., permit holder letter) are available from NMFS at the following website: https://www.fisheries.noaa.gov/species/bluefish#management.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

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

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

2. In § 648.21, revise paragraph (c)(1) and add paragraph (c)(3) to read as follows:

3. In § 648.161, revise the section heading and paragraph (a) to read as follows:

4. In § 648.162, revise paragraphs (b), (d), (f), and (g) to read as follows: