[Federal Register Volume 72, Number 150 (Monday, August 6, 2007)]
[Proposed Rules]
[Pages 43587-43590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15211]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070706268-7275-01]
RIN 0648-AV21


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; Framework Adjustment 7

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 to implement Framework Adjustment 7 (Framework 
7) to the Summer Flounder, Scup, and Black Sea Bass Fishery Management 
Plan (FMP), developed by the Mid-Atlantic Fishery Management Council 
(Council). Framework 7 would broaden the FMP stock status determination 
criteria for summer flounder, scup, and black sea bass, while 
maintaining objective and measurable criteria for identifying when the 
FMP stocks are overfished or approaching an overfished condition. The 
framework action would also establish acceptable categories of peer 
review for providing new or revised stock status determination criteria 
for the Council to use in its annual management measures for each 
species. This action is necessary to ensure that changes or 
modification to the stock status determination criteria constituting 
the best available peer reviewed scientific information are accessible 
for the management of these three species in as timely a manner as is 
possible. The intended effect of this action is to improve the 
timeliness and efficiency of incorporating the best available 
scientific information, consistent with National Standards 1 and 2 of 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), into the management processes for the three species 
covered by the FMP.

DATES: Written comments must be received no later than 5 p.m. local 
time on September 5, 2007.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: [email protected]. Include in the subject 
line the following identifier: ``Comments on FSB Framework Adjustment 
7.''
     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 FSB Framework 
Adjustment 7.''
     Fax: (978) 281-9135
    Copies of Framework Adjustment 7 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 framework document is also accessible via the Internet at 
http://www.nero.noaa.gov.

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

SUPPLEMENTARY INFORMATION:

Background

    The current stock status determination criteria for these three 
species are found in Amendment 12 to the FMP. To modify or replace 
these stock status determination criteria, the Council must enact a 
framework adjustment or an amendment to the FMP.

[[Page 43588]]

    The regulations at Sec. Sec.  648.100, 648.120, and 648.140 outline 
the respective annual management processes for summer flounder 
(Paralichthys dentatus), scup (Stenotomus chrysops), and black sea bass 
(Centropristas striata). Stock assessment information is updated 
annually as part of the management process that is used to derive 
annual catch limits (e.g., Total Allowable Landings (TAL)). In 
addition, assessments for these three stocks undergo periodic formal 
scientific peer review as part of the Northeast Fisheries Science 
Center's (NEFSC) Stock Assessment Workshop (SAW) and Stock Assessment 
Review Committee (SARC) process. These and other periodic formal peer 
reviews conducted for these stocks may result in recommendations to 
revise or use different stock status determination criteria as 
different or new approaches are applied to previously existing data, or 
to new, previously unexamined data. These recommendations can be 
incorporated into the management scheme through a framework adjustment 
or amendment to the FMP. Given the time necessary to develop FMP 
framework adjustments and amendments, it is likely that, should such 
new stock status determination criteria result from a formal SAW/SARC 
peer review, the new criteria would not be available for the Council's 
use for one or more annual management review cycles (i.e., a 1- to 2-yr 
delay).
    In addition, groups outside the NEFSC, including but not limited to 
the Council, the Atlantic States Marine Fisheries Commission 
(Commission), academic institutions, and other interested parties have 
periodically contracted with outside parties or conducted in-house 
formal peer reviews of the stock status determination criteria for 
these species. In such instances, it has not been clear how the results 
of these independently conducted peer reviews should be viewed by the 
Council in regards to National Standard 2 of the Magnuson-Stevens Act, 
which specifies that management decisions shall be based upon the best 
scientific information available. Furthermore, there have been 
instances where the results of scientific peer review conducted by any 
of the aforementioned groups were not clear. Peer review panelists may 
have disagreed on results and presented a majority and minority 
opinion; results may have lacked specific recommendations or had 
insufficient clarity to utilize the information provided in the annual 
management process; or, in some instances, the results of a peer review 
may have been to reject, for management purposes, changes proposed to 
the existing stock status determination criteria. In such situations, 
the Council has been left to decide what information then constituted 
the best available information.
    In response, the Council has developed and submitted for review by 
the Secretary of Commerce, Framework 7 to the FMP. This framework, if 
adopted, would enact the following actions, designed to improve the 
time frame in which peer reviewed information can be utilized in the 
management process, as well as providing guidance on peer review 
standards and how to move forward in the management process when peer 
review results are not clear. The principal actions proposed by 
Framework 7 are to:
    1. Redefine, in more general terms, while maintaining objective and 
measurable criteria, the stock status determination criteria for each 
species;
    2. Define what constitutes an acceptable level of peer review; and
    3. Provide guidance on how the Council may engage its Scientific 
and Statistical Committee (SSC) to conduct additional review of 
information when approved peer review processes fail to provide a 
consensus recommendation or clear guidance for management decisions.
    These changes, proposed in Framework 7, are discussed in detail in 
the following sections.

Redefined Stock Status Determination Criteria

    Framework 7 would redefine the stock status determination criteria 
for each of the three species in the FMP. The maximum fishing mortality 
rate (F) threshold for each of the species in the FMP is defined as 
FMaximum!Sustainable!Yield!(MSY) (or a reasonable proxy 
thereof) as a function of productive capacity, and based upon the best 
scientific information, consistent with National Standards 1 and 2. 
Specifically, FMSY is the fishing mortality rate or level 
associated with the relevant MSY level of each stock. The maximum 
fishing mortality rate threshold (FMSY), or a reasonable 
proxy thereof, may be defined as a function of (but not limited to): 
total stock biomass, spawning stock biomass, or total egg production; 
and may include males, females, both, or combinations and ratios 
thereof, that provide the best measure of productive capacity for each 
of the species managed under the FMP. Exceeding the established fishing 
mortality rate threshold constitutes overfishing.
    The minimum stock size threshold for each of the species in the FMP 
is defined as 1/2 Biomass (B)MSY (or a reasonable proxy 
thereof) as a function of productive capacity, and based upon the best 
scientific information, consistent with National Standards 1 and 2. The 
minimum stock size threshold (1/2 BMSY) or a reasonable 
proxy may be defined as (but not limited to): total stock biomass, 
spawning stock biomass, or total egg production; and may include males, 
females, both, or combinations and ratios thereof, that provide the 
best measure of productive capacity for each of the species managed 
under the FMP. The minimum stock size threshold is the level of 
productive capacity associated with the relevant 1/2 BMSY 
level. Should the measure of productive capacity for the stock or stock 
complex fall below this minimum threshold, the stock or stock complex 
is considered overfished. The target for rebuilding is specified as 
BMSY (or reasonable proxy thereof) at the level of 
productive capacity associated with the relevant MSY level, under the 
same definition of productive capacity as specified for the minimum 
stock size threshold.
    Under Framework 7, the stock status determination criteria are 
proposed to be made more general by removing specific references to how 
minimum stock size threshold and biomass are calculated. By making the 
stock status determination criteria more general the results of peer 
reviewed best available science could be more readily adopted through 
the annual specification setting process. For example, in 2006, the 
NMFS Office of Science and Technology convened a peer review panel to 
provide scientific advice on the summer flounder stock. The results of 
this review, contained in the Summer Flounder Assessment and Biological 
Reference Point Update for 2006, recommended that spawning stock 
biomass be utilized as a means for assessing the status of the summer 
flounder stock. This recommendation was a change from the existing 
stock status definitions for summer flounder contained in Amendment 12, 
which use total stock biomass. If Framework 7 is approved and 
implemented, the Council would be able to utilize the recommendations 
of the 2006 summer flounder peer review in the management (i.e., 
specification setting) process as the best available scientific 
information. The existing Amendment 12 stock status determination 
criteria for scup and black sea bass would remain unchanged until such 
time that recommendations

[[Page 43589]]

for changes or modifications are recommended by a formal peer review. 
For all three species, the Council would still provide specific 
definitions for the stock status determination criteria in documents 
supporting annual management measures, future framework adjustments, 
and amendments including, where necessary, information on changes to 
the definitions.

Peer Review Standards

    While the NEFSC SAW/SARC process remains the primary process 
utilized in the Northeast Region to develop scientific stock assessment 
advice, including stock status determination criteria for federally 
managed species, Framework 7 proposes several additional scientific 
review bodies and processes that would constitute an acceptable peer 
review level to develop scientific stock assessment advice for the 
three species stock status determination criteria.

Guidance on Unclear Scientific Advice Resulting From Peer Review

    In many formal peer reviews, the terms of reference provided in 
advance of the review instruct the reviewers to formulate specific 
responses on the adequacy of information and to provide detailed advice 
on how that information may be used for fishery management purposes. As 
such, most stock assessment peer reviews result in clear 
recommendations on stock status determination criteria for use in the 
management of these three stocks. However, there are occasional peer 
review results where panelists disagree and no consensus recommendation 
is made regarding the information. The terms of reference may not be 
followed and no recommendations for the suitability of the information 
for management purposes may be made. In such instances, it is unclear 
what then constitutes the best available information for management 
use.
    Framework 7 proposes that, when clear consensus recommendations are 
made by any of the acceptable peer review groups, the information is 
clearly the best available and may be utilized by the Council in the 
management process for these three species. Similarly, when the 
consensus results of a peer review are to reject proposed changes to 
the stock assessment methods or the stock status determination 
criteria, Framework 7 proposes that the previous information on record 
would still continue to constitute the best available information and 
should be used in the management process.
    When peer review recommendations lack consensus, are unclear, or do 
not make recommendations on how the information is to be used in the 
management process, Framework 7 proposes that the Council engage its 
SSC or a subset of the SSC with appropriate stock assessment expertise, 
to review the information provided by the peer review group. The SSC 
would then seek to clarify the information and provide advice to the 
Council to either modify, change, or retain the existing stock status 
determination definitions as the best available information for use in 
the development of management measures.
    The process of how the Council utilizes its SSC may change in the 
future. The 2006 reauthorization of the Magnuson-Stevens Act requires 
each Council's SSC to provide ongoing scientific advice for fishery 
management decisions, including recommendations for acceptable 
biological catch, maximum sustained yield, achieving rebuilding 
targets, etc. Framework 7 does not contemplate how the Council may 
modify its management process to satisfy this requirement of the 
reauthorized Magnuson-Stevens Act, as guidance for so doing is still 
being developed by NMFS and the Council. Framework 7 does not bring 
this FMP into compliance with the new Magnuson-Stevens Act 
requirements, nor does it conflict with those requirements as it 
addresses a separate issue. Once appropriate guidance has been 
developed for complying with the new Magnuson-Stevens Act requirements, 
the Council's standard operating procedures and/or an amendment to the 
FMP may be enacted to clarify how the SSC will provide scientific 
advice for management decisions. Framework 7 will continue to pertain 
to the SSC's function in clarifying peer reviews on stock status 
determination criteria only. Under Framework 7, the primary peer review 
mechanism for northeast region stock assessments will remain the 
established NEFSC SAW/SARC process. The Council's SSC would only be 
utilized in the specific instances as previously outlined within the 
preamble of this proposed rule (see Guidance on Unclear Scientific 
Advice Resulting from Peer Review section). Both such peer review 
processes are consistent with the Office of Management and Budget's 
Information Quality Bulletin for Peer Review.
    The measures outlined above are the only changes proposed by the 
Council in Framework 7. The no action alternative examined by the 
Council is to maintain the status quo regarding the stock status 
determination criteria, which would require a framework adjustment or 
amendment to the FMP to effect changes to the definitions in Amendment 
12, would leave the standards for peer review undefined, and would not 
specify how the SSC may be used to clarify ambiguous results of 
scientific peer reviews for these three stocks.

Classification

    NMFS has determined that this proposed rule is consistent with the 
FMP and has preliminarily determined that the rule is consistent with 
the Magnuson-Stevens Act and other applicable laws.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Regional Administrator has determined that this proposed rule 
is an administrative framework adjustment to the FMP and is therefore 
categorically excluded from the requirement to prepare an Environmental 
Impact Statement or equivalent document under the National 
Environmental Policy Act.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    This proposed rule deals only with how the best available, peer 
reviewed scientific information can be incorporated more quickly and 
efficiently into the Council's process for crafting management 
measures for the three species under the FMP. This is achieved by 
broadening the descriptions of the stock status determination 
criteria in the FMP so that updated and peer reviewed information 
can be more readily adopted for use in the management process. The 
proposed change is to how the stock status determination criteria 
are defined and does not propose any change to the existing 
determination criteria. Additionally, the framework identifies 
acceptable levels of peer review that must be satisfied before new 
or revised information is accepted as the best available science.
    These are administrative changes to the FMP that serve to 
improve the quality of data used in management decisions, consistent 
with National Standards 1 and 2 of the Magnuson-Stevens Act. As 
such, the rule will not have significant direct or indirect economic 
impacts on small entities.
    As a result, an initial regulatory flexibility analysis is not 
required and none has been prepared.

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


[[Page 43590]]


    Dated: July 31, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. E7-15211 Filed 8-3-07; 8:45 am]
BILLING CODE 3510-22-S