[Federal Register Volume 72, Number 78 (Tuesday, April 24, 2007)]
[Proposed Rules]
[Pages 20314-20317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2016]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070409081-7081-01; I.D. 032907A]
RIN 0648-AS22


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Summer 
Flounder, Scup, and Black Sea Bass Fishery Management Plan; Amendment 
14

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

ACTION:  Proposed rule; request for comments.

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SUMMARY:  NMFS proposes regulations to implement Amendment 14 to the 
Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) 
developed by the Mid-Atlantic Fishery Management Council (Council). The 
proposed measures include a plan to rebuild the scup stock from an 
overfished condition to the level associated with maximum sustainable 
yield, as required by the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). This action also proposes to 
allow the regulations concerning the Gear Restricted Areas (GRAs) to be 
modified through framework adjustments to the FMP. The intended effect 
of this change would improve the timing of developing and implementing 
modifications to the GRAs.

DATES:  Comments must be received by 5 p.m. local time, on May 24, 
2007.

ADDRESSES:  You may submit comments by any of the following methods:
     E-mail: FSBAmendment14Proposed [email protected]. Include in 
the subject line the following identifier: ``Comments on Amendment 14 
Proposed Rule (Scup Rebuilding Plan).''
     Federal e-rulemaking portal: http:/www.regulations.gov
     Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. 
Mark the outside of the envelope: ``Comments on Amendment 14 Proposed 
Rule (Scup Rebuilding Plan).''
     Fax: (978) 281-9135
    Copies of Amendment 14 and of the draft Environmental Assessment, 
preliminary Regulatory Impact Review, and Initial Regulatory 
Flexibility Analysis (EA/RIR/IRFA) are available from Daniel T. 
Furlong, Executive Director, Mid-Atlantic Fishery Management Council, 
Room 2115, Federal Building, 300 South New Street, Dover, DE 19901-
6790. The EA/RIR/IRFA is also accessible via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT:  Michael P. Ruccio, Fishery Policy 
Analyst, (978) 281-9104.

SUPPLEMENTARY INFORMATION: On August 18, 2005, NMFS notified the 
Council that the scup (Stenotomus chrysops) stock had been designated 
as overfished and that, within 1 year of that notice, an amendment or 
proposed regulations for the scup fishery to end overfishing and to 
rebuild the stock must be prepared in accordance with the Magnuson-
Stevens Act. In response, the Council has developed, and submitted for 
Secretarial review, Amendment 14 to propose two actions: (1) A 7-year 
plan to rebuild the scup stock from an overfished condition to a level 
associated with maximum sustained yield (Bmsy), as required 
by the Magnuson-Stevens Act; and (2) an administrative change to the 
regulations on framework adjustments.

Background

    The scup stock was determined to be overfished in 1998 when the 
Sustainable Fisheries Act (SFA) amendments to the Magnuson-Stevens Act 
were implemented. The Council developed and proposed Amendment 12 (64 
FR 16891, April 7, 1999) to rebuild the scup stock in accordance with 
the provisions outlined in the SFA. The Council proposed in Amendment 
12 that the management measures in place to rebuild the scup fishery, 
established by Amendment 8, were adequate under SFA guidelines. NMFS 
disagreed, and the rebuilding plan proposed in Amendment 12 was 
disapproved on April 28, 1999. Following the disapproval, the 
management measures previously implemented by Amendment 8 remained in 
place for the scup fishery.
    In years subsequent to the disapproval of Amendment 12, the scup 
stock exhibited signs of recovery. The Northeast Fisheries Science 
Center (NEFSC) spring survey index 3-year average value for 2001-2003 
indicated that scup spawning stock biomass (SSB) had increased to 3.31 
kg/tow, above the minimum biomass threshold (1/2 Bmsy) of 
2.77 kg/tow. The scup stock was no longer considered overfished, 
although the 35\th\ Stock Assessment Review Committee (SARC 35) 
indicated that the status of the stock with respect to overfishing 
could not be evaluated. Although the condition of the scup stock was 
improving, the stock had not yet been rebuilt, as required by the 
Magnuson-Stevens Act, to the Bmsy proxy rebuilding target of 
5.54 kg/tow.
    In 2005, the NEFSC 3-year SSB index value decreased to 0.69 kg/tow, 
indicating that the stock was again below the minimum biomass threshold 
(1/2 Bmsy) and considered overfished. NMFS formally notified 
the Council of the overfished status of the scup stock, thus initiating 
the Magnuson-Stevens Act requirement that the Council develop 
regulations or an amendment to the FMP to rebuild the scup stock to the 
Bmsy proxy level. The rebuilding plan implemented by such 
regulations or amendment must achieve the rebuilding target within 10 
years to comply with the Magnuson-Stevens Act. In response, the Council 
has developed, and submitted for Secretarial review, Amendment 14.

 Proposed Scup Rebuilding Plan

    Under Amendment 14, a constant fishing mortality rate (F) of 0.10 
would be applied each year during a 7-year rebuilding time period. 
Under this approach, the NEFSC 3-year SSB index value for the 
rebuilding period ending December 31, 2014, is projected to be 5.96 kg/
tow, approximately 8 percent above the Bmsy proxy rebuilding 
target (5.54 kg/tow).
    Applying a constant F=0.10 for 7 years is projected to achieve the 
required stock rebuilding to comply with the Magunuson-Stevens Act; 
however, because scup is a relatively data poor stock and uncertainty 
exists around estimates of fishing mortality, stock size, and discards, 
Amendment 14 contains additional criteria to be

[[Page 20315]]

applied to the rebuilding program, as follows:
    1. As improvements to the available data occur over the 7-year 
rebuilding period, the rebuilding trajectory may change. Therefore, to 
ensure stock rebuilding, a periodic review will be conducted by the 
Council's scientific advisors to re-evaluate the F necessary to rebuild 
the stock. If the Council's scientific advisors determine the stock 
cannot be rebuilt within the time remaining in the initial 7-year time 
frame under an F=0.10, then the Council will recommend measures to 
rebuild the stock as soon as possible after the 7 years, but not to 
exceed the 10-year time frame specified in the Magnuson-Stevens Act for 
rebuilding periods.
    The periodicity of such a review is not specified in Amendment 14; 
however, it is expected that such reviews will be at the discretion of 
the Council and will occur as new data are made available, as early in 
the rebuilding period as possible, so that changes to the F rate, as 
needed, may be made.
    2. The scup biological reference points (stock status determination 
criteria) would be reviewed after the Fishery Survey Vessel (FSV) Henry 
B. Bigelow has completed 2 full years of service.
    3. If a scup stock assessment that results in a change to the 
biological reference points is completed before the end of the 7-year 
rebuilding time period, the Council may reconsider the rebuilding 
targets.
    The additional criteria for the rebuilding program contained in 
Amendment 14 are designed to allow for some degree of flexibility 
within the specified rebuilding period, while still satisfying the 
requirements of the Magnuson-Stevens Act, given the considerable 
scientific uncertainty regarding the status of the scup stock. The 
intent of the additional criteria is to ensure that certain parameters 
of the rebuilding program can be revisited in advance of the end of the 
rebuilding time frame. This may help mitigate the need for severely 
restrictive measures in the rebuilding plan's final years, should 
scientific advice or stock status information change during the course 
of the 7-year rebuilding plan and/or the scup stock fail to respond to 
the rebuilding efforts as anticipated and fall behind the rebuilding 
schedule.
    Amendment 14 has a target implementation date of January 1, 2008, 
for the start of the rebuilding program. A final rule for Amendment 14 
is anticipated to be published in the Federal Register prior to August 
2007, with delayed effectiveness until January 1, 2008, so that the 
2008 scup specifications would be set consistent with the proposed 
rebuilding program.

Proposed GRA Modification Process

    GRAs were first implemented on May 24, 2000 (65 FR 33486), in 
conjunction with the annual specifications for the summer flounder, 
scup, and black sea bass fisheries. The intent of the GRAs has been to 
reduce discards of scup in small-mesh fisheries, primarily for Loligo 
squid, black sea bass, and silver hake. Because of the manner in which 
they were initially implemented, the GRAs could only be modified 
through the annual specification process or through an amendment to the 
FMP. Amendment 14 proposes an administrative change to add the GRAs to 
the list of management measures that can be changed through a framework 
adjustment to the FMP. As such, the Council would develop and analyze 
changes to the GRAs over the span of at least two Council meetings 
before making a recommendation to NMFS. This change is intended to 
allow for improved timing of developing and implementing proposed 
modifications to the GRAs. Amendment 14 proposes no specific changes to 
the existing GRAs.

Notice of Availability (NOA) and Public Comment on Amendment 14

    A NOA indicating Amendment 14's availability for public review and 
comment published in the Federal Register on April 11, 2007, 72 FR 
18193. Public comments are being solicited on Amendment 14 and its 
incorporated documents through the comment period ending June 11, 2007, 
as stated in the NOA. Public comments on this proposed rule must be 
received by the end of the comment period on Amendment 14, as published 
in the NOA, to be considered in the approval/disapproval of the 
Amendment 14. All comments received by the end of the NOA comment 
period for Amendment 14, whether specifically directed to the amendment 
or this proposed rule, will be considered in the approval/disapproval 
decision. Comments received after the end of the NOA comment period 
will not be considered in the approval/disapproval decision on 
Amendment 14, but will be considered as comments on this proposed rule. 
To be considered, comments must be received by close of business on the 
last day of the comment period; that does not mean postmarked or 
otherwise transmitted by that date.

Classification

    At this time, NMFS has not determined that the FMP amendment that 
this proposed rule would implement is consistent with the national 
standards of the Magnuson-Stevens Act and other applicable laws. NMFS, 
in making that determination, will take into account the data, views, 
and comments received during the comment period.
    A notice of availability of the Draft EA/RIR/IRFA, which analyzed 
the impacts of all of the measures under consideration in Amendment 14, 
was published on April 11, 2007, (72 FR 18193).
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the RFA. The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the reasons why the 
action is being considered, the associated objectives of the proposed 
action, and the legal basis for this action are contained in the 
SUMMARY section of the preamble of this proposed rule. A summary of the 
analysis follows. A copy of the complete IRFA is available from the 
Council (see ADDRESSES).
    This proposed rule does not duplicate, overlap, or conflict with 
any relevant Federal rules.
    There are no new reporting or recordkeeping requirements contained 
in any of the alternatives considered for this action.

Description of Small Entities to Which the Proposed Rule Will Apply

    The proposed action regarding scup rebuilding alternatives could 
affect any vessel issued a Federal permit for scup, as well as vessels 
that fish for scup in state waters. The GRA alternatives proposed are 
purely administrative in nature and, therefore, are not expected to 
impact scup fishery participants in state or Federal waters.
    The Small Business Administration (SBA) defines a small business in 
the commercial fishing and recreational fishing activity as a firm with 
receipts (gross revenues) of up to $4.0 and $6.5 million, respectively. 
The proposed measures regarding the scup rebuilding alternatives could 
affect any vessel holding an active Federal permit for scup, as well as 
vessels that fish for this species in state waters. Data from the 
Northeast permit application database show that, in 2005, the most 
recent year for which there are complete data, 1,511 vessels were 
permitted to take part in

[[Page 20316]]

the scup fisheries (both commercial and charter/party sectors). All 
vessels that would be impacted by this proposed rulemaking are 
considered to be small entities; therefore, there would be no 
disproportionate impacts between large and small entities. Since all 
permit holders do not actually land scup, the more immediate impact of 
the rule may be felt by the 428 vessels that are actively participating 
in this fishery (i.e., that landed 1 lb (0.45 kg) or more of scup in 
2005).

Description of Alternatives

    The Council proposed seven rebuilding plan alternatives and the no-
action (i.e., status quo) alternative. Of these, two alternatives could 
be expected to have less of an economic impact on small entities than 
the proposed action. A summary of these alternatives can be found in 
Table 1, and as follows, including the reasons for selecting the 
preferred alternative instead of one of the two alternatives with a 
lower economic impact to small entities.
[GRAPHIC] [TIFF OMITTED] TP24AP07.005

    The no-action alternative, designated 1A, would not implement a 
rebuilding plan or time frame for rebuilding the scup stock. The 
current F target of F=0.26 would be maintained, resulting in the least 
restrictive quotas. Under the no action alternative (1A), the scup 
stock is not projected to ever achieve the rebuilding target; 
therefore, the status quo alternative would not achieve stock 
rebuilding and is therefore contrary to the requirements of the 
Magnuson-Stevens Act.
    Alternatives 1B through 1E consist of rebuilding strategies wherein 
a specified constant F is applied over a 10, 7, 5, or 4-yr period, 
respectively. The F rate applied under these four alternatives is 
highest (i.e., less restrictive) for alternative 1B and decreases 
(i.e., becomes more restrictive) in alternatives 1C and 1D. The 
rebuilding program proposed by alternative 1B is less restrictive than 
the Council's preferred alternative, 1C. Alternative 1B was not 
selected as the preferred alternative because it utilizes the full 10-
year rebuilding period and does not allow for the ongoing rebuilding 
progress performance assessments, as specified by the Council, that are 
available in the preferred alternative, 1C. The F rate in 1E is F=0, 
which would result in no harvest of scup (commercial, recreational, or 
incidental take in other fisheries) for the proposed 4-yr period; this 
alternative was considered but excluded from detailed analysis as it 
was not considered a reasonable solution to the issue.
    Alternatives 1F through 1H proposed maintaining a constant harvest 
level of scup over a specified rebuilding period. Alternative 1F, the 
least restrictive constant harvest rebuilding alternative, was rejected 
because it would not rebuild the stock within the 10-year period 
required under the Magnuson-Stevens Act. Of the remaining two constant 
harvest alternatives, 1G is less restrictive than alternative 1H. 
Relative to the constant F strategies, the constant harvest strategies 
1D and 1H are expected to be less restrictive than alternatives 1C and 
1G, but more restrictive than alternatives 1A and 1B.
    For clarity, the Council has identified rebuilding program 
alternative 1C, with the additional criteria outlined in the 
SUPPLEMENTARY INFORMATION in the preamble of this proposed rule, as its 
preferred alternative.

Expected Economic Impacts of Alternatives

    The effects of actions were analyzed by employing quantitative 
approaches to the extent possible. Where quantitative data were not 
available, qualitative analyses were conducted. In the current 
analysis, effects on profitability associated with the proposed 
management measures should be evaluated by looking at the impact of the 
proposed measures on individual vessel costs and revenue. However, in 
the absence of cost data for individual vessels engaged in these 
fisheries, changes in gross revenue are used as a proxy for 
profitability.
    Procedurally, the economic effects of the quotas under the various 
rebuilding schedules were estimated by assessing the changes in 
potential revenues. This was accomplished by multiplying the 
corresponding level of Total Allowable Landings (TAL) under each 
alternative by the ex-vessel price forecasted for each of the years in 
an alternative's rebuilding time line.
Commercial Fishery Impacts
    Aggregate scup landings in 2008, the first year of the rebuilding 
period, relative to 2006 are expected to be the highest under 
alternative 1A (an increase of 153 percent), followed by alternative 1B 
(an increase of 41 percent), and alternatives 1C and 1G (an increase of 
5 percent each). Under alternatives 1D and 1H, scup landings are 
expected to decrease (29 percent each) in 2008, compared to 2006. 
Commercial quotas are expected to increase in each year subsequent to 
2008 from the 2006 baseline value for each alternative, except those 
for constant harvest strategies under

[[Page 20317]]

alternatives 1G and 1H. For alternatives 1G and 1H, no increase is 
predicted until the rebuilding time frame is complete and the stock is 
rebuilt.
    Assuming that the predicted changes in initial annual revenue in 
2008 are for all active participants in the fishery and that they are 
evenly distributed over all active participants in the fishery (the 428 
vessels that landed scup in 2005), each business unit could be expected 
to gain an average of $7,114 in gross revenues under alternative 1A, 
and $1,914 under alternative 1B, if the entire TAL is landed in 2008. 
Potential losses in 2008 of $194 in gross revenue are estimated for 
each scup vessel under alternatives 1C and 1G, and $2,621 under 
alternatives 1D and 1H.
    If revenue earned from all other species is assumed to remain 
constant, 21 vessels are projected to incur total revenue losses of 5 
percent or more in 2008 under the two most restrictive alternatives (1D 
and 1H). Of these 21 vessels, 11 are projected to incur revenue 
reductions of 5-9 percent, and 10 vessels are projected to lose up to 
10-19 percent of their total gross revenue.
    Relative to each vessel's home port state as reported on the 
vessel's permit application, nine of the vessels projected to incur 
revenue losses of 5 percent or more under alternatives 1D and 1H listed 
New York as their home port state, five of these vessels listed 
Massachusetts as their home port state, and five listed Rhode Island as 
their home port state. The home port states of the remaining two 
vessels can not be disclosed for confidentiality reasons.
    The 21 vessels estimated to incur revenue losses of 5 percent or 
more in 2008 under the two most restrictive alternatives (1D and 1H) 
list 15 different home port locations on their permit applications. The 
only home port locations with more than one vessel estimated to incur 
total revenue reductions of 5 percent or more are in Montauk, NY (five 
vessels) and Point Judith, RI (three vessels).
    Although alternatives 1C, 1D, 1G, and 1H will likely have a 
negative short-term economic impact on some scup harvesting businesses, 
they are expected to result in long-term positive impacts to the 
industry as a whole, once the scup stock rebuilds. Quotas will 
gradually increase toward the rebuilt stock level for constant F 
strategies and are expected to significantly increase when rebuilding 
is achieved for constant harvest strategy alternatives.
Recreational Fishery Impacts
    Recreational landings of scup in 2006 were projected to be 2.83 
million lb (1,284 mt). Potential increases in landings could be 
observed in 2008 under the recreational harvest limits projected for 
alternatives 1A and 1B. The 2008 recreational harvest limits under 
alternatives 1C and 1G would be approximately equal to the projected 
2006 recreational landings. The 2008 recreational harvest limits for 
alternatives 1D and 1H are projected to be 1.923 million lb (872 mt), a 
potential decrease of approximately 1.0 million lb (453 mt) when 
compared to 2006 levels.
    There is no empirical information available to determine how 
sensitive to the proposed changes in scup recreational harvest limits 
affected anglers might be. In other words, it is not possible to 
determine how affected anglers will respond to the new regulations. 
Scup angler trip taking behavior may remain unchanged, or the 
management measures may result in anglers taking fewer fishing trips or 
no recreational trips at all if suitable alternative target species are 
unavailable. Although the potential changes in trip taking behavior 
cannot be quantified, given the marginal changes in management measures 
from 2006 to those expected for 2008 and the fact that the proposed 
measures do not prohibit anglers from engaging in catch and release 
fishing, the demand for fishing trips should remain relatively 
unaffected. Nevertheless, to the extent that anglers impacted by the 
proposed measures do take fewer trips, economic losses may accrue to 
businesses that support marine recreational activities.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 17, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be 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 Sec.  648.127, paragraph (a)(1) is revised to read as 
follows:


Sec.  648.127  Framework adjustment to management measures.

    (a) * * *
    (1) Adjustment process. The Council shall develop and analyze 
appropriate management actions over the span of at least two Council 
meetings. The Council must provide the public with advance notice of 
the availability of the recommendation(s), appropriate justification(s) 
and economic and biological analyses, and the opportunity to comment on 
the proposed adjustment(s) at the first meeting and prior to and at the 
second Council meeting. The Council's recommendations on adjustments or 
additions to management measures must come from one or more of the 
following categories: Minimum fish size, maximum fish size, gear 
restrictions, gear restricted areas, gear requirements or prohibitions, 
permitting restrictions, recreational possession limit, recreational 
seasons, closed areas, commercial seasons, commercial trip limits, 
commercial quota system including commercial quota allocation procedure 
and possible quota set asides to mitigate bycatch, recreational harvest 
limit, annual specification quota setting process, FMP Monitoring 
Committee composition and process, description and identification of 
essential fish habitat (and fishing gear management measures that 
impact EFH), description and identification of habitat areas of 
particular concern, overfishing definition and related thresholds and 
targets, regional gear restrictions, regional season restrictions 
(including option to split seasons), restrictions on vessel size (LOA 
and GRT) or shaft horsepower, operator permits, any other commercial or 
recreational management measures, any other management measures 
currently included in the FMP, and set aside quota for scientific 
research.
* * * * *
[FR Doc. 07-2016 Filed 4-23-07; 8:45 am]
BILLING CODE 3510-22-S