[Federal Register Volume 72, Number 140 (Monday, July 23, 2007)]
[Rules and Regulations]
[Pages 40077-40080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14164]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0612243154-7212-02; 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: Final rule.

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SUMMARY: NMFS is implementing 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 measures of 
Amendment 14 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 will also allow the 
regulations concerning the Gear Restricted Areas (GRAs) to be modified 
through framework adjustments to the FMP. The intended effect of this 
change is to improve the timing of developing and implementing 
modifications to the GRAs.

DATES: Effective August 22, 2007. The Amendment 14 scup rebuilding plan 
will begin on January 1, 2008.

ADDRESSES: Copies of Amendment 14 and of the Environmental Assessment, 
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. NMFS prepared a Final 
Regulatory Flexibility Analysis (FRFA), which is contained in the 
Classification section of this final rule. 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:

Background

    The Council developed Amendment 14 in response to being notified by 
NMFS in 2005 that the scup (Stenotomus chrysops) stock had been 
designated as overfished. The Council developed and submitted Amendment 
14 for review by the Secretary of Commerce (Secretary) on February 26, 
2007. The amendment contains two actions: (1) A 7-year plan to rebuild 
the scup stock from an overfished condition to a biomass 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.
    A notice of availability was published in the Federal Register on 
April 11, 2007 (72 FR 18193), announcing that the Council had submitted 
Amendment 14 for Secretarial review, and that the document was 
available for public comment. The closing date for comments on the 
amendment was June 11, 2007. A proposed rule to implement Amendment 14 
was published on April 24, 2007 (72 FR 20314). The public comment 
period for the proposed rule

[[Page 40078]]

ended on May 24, 2007. NMFS solicited input from the public regarding 
the approval, partial approval, or disapproval of the amendment through 
the notice of availability and requested comments on all the Amendment 
14 proposed measures in the proposed rule. Additional detail on the 
background and development of the Amendment 14 measures are contained 
in the preamble of the proposed rule and are not repeated here.
    This final rule implements the measures of the Council's preferred 
alternative scup rebuilding plan and the administrative change to the 
framework adjustment provision of the FMP, as presented in the proposed 
rule and outlined as follows.

Scup Rebuilding Plan

    Amendment 14 implements a constant fishing mortality rate (F) of 
0.10, to be applied each year during a 7-year rebuilding time period 
beginning January 1, 2008. Under this approach, the Northeast Fisheries 
Science Center (NEFSC) 3-year Spawning Stock Biomass (SSB) index value 
for the rebuilding period ending December 31, 2014, is projected to be 
5.96 kg/tow, which is 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 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.
    2. The scup biological reference points (stock status determination 
criteria) will 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.

GRA Modification Process

    Amendment 14 implements 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 will 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.

Comment and Response

    NMFS received one comment in response to the notice of availability 
on Amendment 14; no comments were received on the proposed rule.
    Comment: The commenter stated that quotas should be cut by 50 
percent this year and by 10 percent in each year thereafter. The 
commenter had no specific comments regarding whether Amendment 14 
should be approved, partially approved, or disapproved by NMFS; in 
addition, the commenter did not speak to the specific measures 
contained in the proposed rule.
    Response: Fixed percentage reductions in quota applied on an annual 
basis were not considered by the Council, nor were they analyzed in the 
Amendment 14 range of alternatives for rebuilding the scup stock. The 
Council made no recommendation to NMFS to apply such a strategy in 
rebuilding the scup stock. The constant fishing mortality rate to be 
applied for the 7-year rebuilding period is projected to rebuild the 
scup stock to the BMSY level required by the Magnuson-Stevens Act.
    NMFS acknowledges that quota reductions may be a necessary 
component of rebuilding the scup stock as part of the constant fishing 
mortality strategy. However, reductions in quota will only result when 
the stock status is at such a level that applying the F=0.10 rate, as 
outlined in the rebuilding plan, results in a lower quota than the 
previous year.

Classification

    The Administrator, Northeast Region, NMFS has determined that 
Amendment 14 to the FMP is necessary for the conservation and 
management of the scup fishery and is consistent with the Magnuson-
Stevens Act and other applicable laws.
    NMFS approved Amendment 14 to the FMP on July 03, 2007. A copy of 
the final Amendment 14 document is available from both the Council and 
NMFS (see ADDRESSES).
    This final rule has been determined not to be significant for 
purposes of Executive Order 12866.
    Included in this final rule is the FRFA prepared pursuant to 5 
U.S.C. 604(a). The FRFA incorporates the economic impacts described in 
the IRFA, a summary of the significant issues raised by the public 
comments in response to the IRFA, NMFS's responses to those comments, 
and a summary of the analyses completed to support the action. A copy 
of the complete IRFA is available from the Council (see ADDRESSES).

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being taken, and 
the objectives of and legal basis for this final rule are explained in 
the preambles to the proposed rule and this final rule and are not 
repeated here.

Summary of Significant Issues Raised in Public Comments

    The one comment received on the notice of availability did not 
specifically address the potential economic impact of the rule. No 
changes to the proposed rule were required to be made as a result of 
the public comment. For a summary of the comment received, and the 
response thereto, refer to the ``Comment and Response'' section of this 
preamble.

Description and Estimate of Number of Small Entities to Which This 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. Incorporating changes to the GRAs 
as part of the framework adjustment process is purely administrative in 
nature and, therefore, is 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 measures regarding scup rebuilding could affect any vessel holding 
an active Federal permit for scup, as well as vessels that fish for 
this species in state waters. Data

[[Page 40079]]

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 the scup fisheries (both commercial and 
charter/party sectors). All vessels that would be impacted by this 
final 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 Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance 
requirements are included in this final rule.

Description of the Steps Taken to Minimize Economic Impact on Small 
Entities

    As previously mentioned, the modification to the framework 
adjustment language to include the GRAs is administrative in nature and 
is not expected to have any impact on small entities.
    The ability of NMFS to minimize economic impacts in rebuilding the 
scup stock to the BMSY level, as required by the Magnuson-
Stevens Act, is constrained by the requirement that rebuilding (i.e., 
meeting or exceeding the BMSY target) must occur as soon as 
possible, but no longer than a 10-year period. Among the alternatives 
proposed to achieve scup rebuilding, two methodologies were considered 
wherein quotas could be set at a constant level for the specified 
rebuilding period duration (i.e., constant harvest strategy) or a 
target F rate could be applied to derive quotas for the duration of the 
rebuilding period (i.e., constant fishing mortality or F strategy). In 
addition, the time frame for rebuilding may be set equal to or less 
than the required 10-year period. Each methodology and time frame for 
rebuilding carries with it different potential economic impacts to 
small entities.
    The economic analysis for the scup rebuilding plans assessed the 
impacts of six of the eight proposed rebuilding plans. Two 
alternatives, 1E and 1F, were not analyzed for detailed economic 
impacts because the first (Alternative 1E) required a complete 
prohibition on the take of scup in all fisheries for a 4-year period 
and was deemed an unreasonable solution to the issue of rebuilding the 
stock, and the second (Alternative 1F) was not projected to rebuild the 
scup fishery within the required maximum 10-year period. Similarly, the 
no action alternative (status quo), Alternative 1A was not projected to 
ever achieve stock rebuilding and was removed from consideration, 
despite having the lowest economic impact of the constant F strategies 
proposed.
    Alternatives 1D and 1H were the most restrictive constant F and 
constant harvest strategies, respectively, applying measures designed 
to achieve stock rebuilding within 5-year periods. These two 
alternatives were associated with the highest economic impacts to small 
entities. Given that the Magnuson-Stevens Act allows for rebuilding 
periods to occur over a 10-year period, these alternatives were 
considered unduly restrictive when compared to other alternatives that 
are also projected to achieve the required rebuilding within 10 or 
fewer years.
    Alternative 1B, which proposed a constant F strategy for a 10-year 
period, was associated with the lowest economic impacts for the 
proposed constant F strategies that achieved the required rebuilding 
with a 10-year time frame. However, because scup is a relatively data 
poor stock, and uncertainty exists around estimates of fishing 
mortality, stock size, and discards, the Council expressed concerns 
about recommending a rebuilding strategy that utilized the full 10-year 
period for rebuilding with no formal evaluation of rebuilding progress 
planned during the period. As a result, if a formal assessment occurred 
during the rebuilding period that adjusted the biomass target or stock 
status determination criteria, more restrictive measures in the form of 
reduced F rates might need to be applied in the later years of the 
rebuilding period to ensure rebuilding occurs. This could result in 
severe economic impacts to small entities and, therefore, was not 
viewed as the ideal approach to stock rebuilding.
    The remaining two strategies, Alternatives 1C and 1G, proposed 
rebuilding the stock within a 7-year period through a constant F and 
constant harvest strategy, respectively. Setting the rebuilding period 
at less than 10 years is recommended, given the uncertainties 
previously mentioned for the scup stock. Under a 7-year rebuilding 
period, the Council may assess the rebuilding progress and recommend 
changes to the rebuilding strategy to ensure that the stock is rebuilt 
within the mandated 10-year period. Applying this approach is expected 
to mitigate the need for more restrictive measures in the rebuilding 
period's final years which would be associated with greater economic 
impacts to small entities (e.g., significant reduction to the F rate in 
one year, such as year 9, as opposed to a lower F rate reduction over 3 
years to ensure rebuilding occurs within 10 years). Between the two 
alternatives, the constant F strategy Alternative 1C is associated with 
slightly higher economic impacts in the initial years of the rebuilding 
strategy than Alternative 1G. However, as stock size increases through 
rebuilding and the constant F rate is applied, economic impacts 
associated with Alternative 1C are less than those associated with 
Alternative 1G, wherein the amount of harvest permitted remains fixed 
even as stock size increases.
    This final rule implements Alternative 1C for a constant F=0.10 for 
a 7-year rebuilding period, with the additional conditions previously 
outlined in the preamble to this rule. This alternative is the midpoint 
for economic impacts for constant F strategies. While other 
alternatives also meet the rebuilding objective, Alternative 1C follows 
the recommendation of the Council. This alternative was selected 
because it is projected to achieve the required stock rebuilding within 
the mandated 10-year rebuilding period and also allows for some degree 
of flexibility within the specified rebuilding period, while still 
satisfying the requirements of the Magnuson-Stevens Act. The intent of 
the additional conditions contained in the rebuilding strategy are 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 of severely restrictive measures and associated 
economic impacts in the 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.

Small Entity Compliance Guide

    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

[[Page 40080]]

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 the small entity compliance guide 
was prepared and will be sent to all holders of Federal party/charter 
permits issued for the scup fisheries. In addition, copies of this 
final rule and the small entity compliance guide are available from 
NMFS (see ADDRESSES) and at the following website: http://www.nero.noaa.gov.
    This final 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.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: July 17, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
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.

0
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. E7-14164 Filed 7-20-07; 8:45 am]
BILLING CODE 3510-22-S