[Federal Register Volume 74, Number 212 (Wednesday, November 4, 2009)]
[Proposed Rules]
[Pages 57134-57140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26553]



[[Page 57134]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0908191244-91369-01]
RIN 0648-XR08


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; 2010 Summer Flounder, Scup, and 
Black Sea Bass Specifications; 2010 Research Set-Aside Projects

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

ACTION: Proposed specifications; request for comments.

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SUMMARY: NMFS proposes specifications for the 2010 summer flounder, 
scup, and black sea bass fisheries and provides notice of three 
projects that may be requesting Exempted Fishing Permits (EFPs) as part 
of the Mid-Atlantic Fishery Management Council's (Council) Research 
Set-Aside (RSA) program. The implementing regulations for the Summer 
Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) 
require NMFS to publish specifications for the upcoming fishing year 
for each of these species and to provide an opportunity for public 
comment. Furthermore, regulations under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) require a notice 
to be published to provide interested parties the opportunity to 
comment on applications for EFPs. The intent of this action is as 
follows: To establish 2010 harvest levels that assure that the target 
fishing mortality rates (F) specified for these species in the most 
recent stock assessment updates are not exceeded; to allow for summer 
flounder stock rebuilding; and to provide notice of EFP requests, all 
in accordance with the Magnuson-Stevens Act.

DATES: Comments must be received on or before November 19, 2009.

ADDRESSES: You may submit comments, identified by RIN 0648-XR08, by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
     Fax: (978) 281-9135.
     Mail and hand delivery: Patricia A. Kurkul, Regional 
Administrator, NMFS, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope: 
``Comments on 2010 Summer Flounder, Scup, and Black Sea Bass 
Specifications.''
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Copies of the specifications document, including the Environmental 
Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and 
other supporting documents for the specifications are available from 
Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management 
Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 
19901-6790. These documents are 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 summer flounder, scup, and black sea bass fisheries are managed 
cooperatively by the Council and the Atlantic States Marine Fisheries 
Commission (Commission), in consultation with the New England and South 
Atlantic Fishery Management Councils. The management units specified in 
the FMP include summer flounder (Paralichthys dentatus) in U.S. waters 
of the Atlantic Ocean from the southern border of North Carolina 
northward to the U.S./Canada border, and scup (Stenotomus chrysops) and 
black sea bass (Centropristis striata) in U.S. waters of the Atlantic 
Ocean from 35[deg]13.3' N. lat. (the latitude of Cape Hatteras 
Lighthouse, Buxton, North Carolina) northward to the U.S./Canada 
border. Implementing regulations for these fisheries are found at 50 
CFR part 648, subpart A (General Provisions), subpart G (summer 
flounder), subpart H (scup), and subpart I (black sea bass).
    The summer flounder, scup, and black sea bass regulations outline 
the process for specifying the annual commercial quotas and 
recreational harvest limits for the summer flounder, scup, and black 
sea bass fisheries, as well as other management measures (e.g., mesh 
requirements, minimum commercial fish sizes, gear restrictions, 
possession restrictions, and area restrictions) for these fisheries. 
The measures are intended to achieve (i.e., not exceed) the annual F 
targets set forth for each species in annual stock assessment updates 
required under the FMP. Once the catch limits are established, they are 
divided into quotas and catch limits based on formulas contained within 
the FMP.
    The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 (MSRA), added new requirements to involve 
the Council's Scientific and Statistical Committee (SSC) in the 
specification-setting process. Specifically, section 302(g)(1)(B) of 
the reauthorized Magnuson-Stevens Act states that an SSC for each 
Regional Fishery Management Council ``shall provide its Council ongoing 
scientific advice for fishery management decisions, including 
recommendations for acceptable biological catch, preventing 
overfishing, maximum sustainable yield, and achieving rebuilding 
targets, and reports on stock status and health, bycatch, habitat 
status, social and economic impacts of management measures, and 
sustainability of fishing practices.'' The Acceptable Biological Catch 
(ABC) is a level of a stock catch that accounts for the scientific 
uncertainty in the estimate of that stock's defined overfishing level. 
This requirement implemented by the Magnuson-Stevens Act was put into 
practice by the Council for the first time in the 2009 specification 
setting process. The SSC met on July 16, 2009, to recommend ABCs for 
the 2010 summer flounder, scup, and black sea bass specifications.
    The FMP's implementing regulations also require that a Monitoring 
Committee for each species review the best available scientific 
information and recommend catch limits and other management measures 
that will mitigate management uncertainty and/or implementation 
imprecision to ensure the target F for each fishery is not exceeded. 
The Monitoring Committees met on July 17, 2009.
    The Council and the Commission's Summer Flounder, Scup, and Black 
Sea Bass Management Board (Board) consider the SSC and Monitoring 
Committees' recommendations and any

[[Page 57135]]

public comment and make their own recommendations. While the Board 
action is final, the Council's recommendations must be reviewed by NMFS 
to assure that they comply with FMP objectives and applicable law. The 
Council and Board made their recommendations at a joint meeting held 
August 4-6, 2009.

Explanation of RSA

    Background: In 2001, regulations were implemented under Framework 
Adjustment 1 to the FMP to allow up to 3 percent of the Total Allowable 
Landings (TAL) for each species to be set aside each year for 
scientific research purposes. For the 2010 fishing year, a Request for 
Proposals was published to solicit research proposals based upon the 
research priorities that were identified by the Council (74 FR 72, 
January 2, 2009).
    NMFS intends to conditionally approve three research projects for 
the harvest of the portion of the quota that has been recommended by 
the Council and the Atlantic States Marine Fisheries Commission 
(Commission) Summer Flounder, Scup, and Black Sea Bass Fisheries 
Management Board (Board) to be set aside for research purposes. In 
anticipation of receiving applications for exempted fishing permits 
(EFPs) to conduct this research and harvest set-aside quota, the 
Assistant Regional Administrator for Sustainable Fisheries, Northeast 
Region, NMFS (Assistant Regional Administrator), has made a preliminary 
determination that the activities authorized under the EFPs would be 
consistent with the goals and objectives of the FMP. However, further 
review and consultation may be necessary before a final determination 
is made to issue any EFP.
    For informational purposes, these proposed specifications include a 
statement indicating the amount of quota that has been preliminarily 
set aside for research purposes (a percentage of the TAL for each 
fishery, not to exceed 3 percent, as recommended by the Council and 
Board), and a brief description of the RSA projects, including 
exemptions requested, and the amount of RSA requested for each project. 
The RSA amounts may be adjusted, following consultation with RSA 
applicants, in the final rule establishing the 2010 specifications for 
the summer flounder, scup, and black sea bass fisheries. If the total 
amount of RSA is not awarded, NMFS will publish a document in the 
Federal Register to restore the unused amount to the applicable TAL.
    For 2010, the conditionally approved projects may collectively be 
awarded the following amounts of RSA: 663,900 lb (301 mt) of summer 
flounder; 405,500 lb (184 mt) of scup; and 69,000 lb (31 mt) of black 
sea bass. The projects may also be collectively awarded up to 1.3 
million lb (590 mt) of Loligo squid, 879,000 (399 mt) of Atlantic 
bluefish, and 33,069 lb (15 mt) of butterfish.
    2010 RSA Proposal Summaries: Project number 1 would conduct a 
fishery-independent scup and black sea bass survey that would utilize 
unvented fish pots fished on hard bottom areas in southern New England 
waters to characterize the size composition of the scup and black sea 
bass populations. Survey activities would be conducted June 15-October 
15, 2010, at 15 rocky bottom study sites. Up to two vessels would 
conduct the research survey. Sampling would occur off the coasts of 
Rhode Island, southern Massachusetts, with the furthest west site off 
of Block Island near Southwest Shoals. Up to four vessels would harvest 
the RSA during the period January 1-December 31, 2010. The principal 
investigators have requested exemptions from trip limits, gear 
requirements (excluding marine mammal avoidance and/or release 
devices), and closed seasons for harvest of RSA species. Also, if 
undersized fish are retained or handled for scientific purposes prior 
to discarding during a commercial trip, an exemption from size limits 
would be required.
    Project number 2 would conduct a near-shore trawl survey in Mid-
Atlantic waters between Aquinnah, Massachusetts, and Cape Hatteras, 
North Carolina, including both Block Island and Rhode Island Sounds. 
Two survey cruises would occur each year (spring and fall) with 
stratified random sampling of approximately 150 stations in depths 
between 18-120 feet (8-37 m). The function of the survey would be to 
provide stock assessment data for summer flounder, scup, black sea 
bass, Loligo squid, butterfish, Atlantic bluefish, several species 
managed by the Commission such as weakfish and Atlantic croaker, and 
unmanaged forage species. The research aspects of the trawl survey 
would be conducted by one scientific research vessel. This vessel could 
operate under a Letter of Acknowledgment (LOA) as provided for by the 
specific exemption for scientific research activities found at 50 CFR 
600.745. Up to 50 vessels would harvest the RSA January 1-December 31, 
2010, during commercial fishing operations, except that these vessels 
have requested exemptions for closed seasons and trip limits to harvest 
the RSA allocated to the project.
    Project number 3 would evaluate a method to reduce butterfish 
retention in the offshore directed Loligo squid fishery through the use 
of two bycatch reduction devices (BRD) adapted to pre-existing gear, 
and video cameras would further be used to identify squid/butterfish 
behavior in the net and to fine-tune the BRDs. A single research vessel 
would be used to conduct paired replicate tows comparing a control 
``Superior'' trawl to a BRD-altered ``Superior'' trawl (experimental 
trawl). Sampling would occur November to December 2010 and January to 
March 2011 within the Hudson Canyon region. The research vessel could 
operate under an LOA as provided for by the specific exemption for 
scientific research activities found at 50 CFR 600.745, or, if fish are 
retained or handled for scientific purposes during a commercial trip, 
the vessel would operate under an EFP found under 50 CFR 600.745 and 50 
CFR 648.12. Up to 50 vessels would harvest the RSA January 1-December 
31, 2010, during commercial fishing operations, except that these 
vessels have requested exemptions for closed seasons and trip limits to 
harvest the RSA allocated to the project.

Explanation of Quota Adjustments Due to Quota Overages

    This action proposes commercial quotas based on the proposed TALs 
and Total Allowable Catches (TACs) and the formulas for allocation 
contained in the FMP. In 2002, NMFS published final regulations to 
implement a regulatory amendment (67 FR 6877, February 14, 2002) that 
revised the way in which the commercial quotas for summer flounder, 
scup, and black sea bass are adjusted if landings in any fishing year 
exceed the quota allocated (thus resulting in a quota overage). If NMFS 
approves a different TAL or TAC at the final specifications stage 
(i.e., in the final rule), the commercial quotas will be recalculated 
based on the formulas in the FMP. Likewise, if new information 
indicates that overages have occurred and deductions are necessary, 
NMFS will publish notice of the adjusted quotas in the Federal 
Register. NMFS anticipates that the information necessary to determine 
whether overage deductions are necessary will be available by the time 
the final specifications are published. The commercial quotas contained 
in these proposed specifications for summer flounder, scup, and black 
sea bass are not adjusted for any overages that have occurred. The 
final specifications will contain quotas that have been fully adjusted 
consistent with the procedures described above.

[[Page 57136]]

Summer Flounder

    The timeline for completion of the summer flounder rebuilding 
program was extended from January 1, 2010, to no later than January 1, 
2013, by section 120(a) of the reauthorized Magnuson-Stevens Act.
    In June 2009, the Southern Demersal Working Group (SDWG), a 
technical stock assessment group composed of personnel from the 
Northeast Fisheries Science Center (NEFSC), NMFS Northeast Regional 
Office, Council, Commission, state marine fisheries agencies, academia, 
and independently-hired scientists, conducted a stock assessment update 
using the 2008 peer-review accepted benchmark stock assessment methods.
    The 2009 SDWG assessment update shows that summer flounder were not 
overfished and that overfishing did not occur in 2008, the year for 
which the most recent, complete fishery-dependent data are available. 
The fishing mortality rate (F) in 2008 was estimated to be 0.25, below 
both the overfishing threshold (FMSY = FTHRESHOLD 
= F35 percent A\1\ = 0.310) and the management target 
(FTARGET = F40 percent = 0.255). FMSY 
is the fishing mortality rate that, if applied constantly, would result 
in maximum sustainable yield (MSY) from the summer flounder stock. When 
F>FTHRESHOLD, overfishing is considered to be occurring. 
Fishing year 2008 is the second year of the rebuilding program in which 
overfishing did not occur on summer flounder. Spawning stock biomass 
(SSB) was estimated to be 101.5 million lbs (46,040 mt) in 2008, about 
77 percent of the SSB35 percent (SSBMSY target 
proxy reference point) = 132.4 million lbs (60,056 mt). The assessment 
update shows that the summer flounder stock has not been overfished 
since 2001. The average recruitment from 1982 to 2008 is 41.8 million 
fish. The 2008 year class is estimated to have been 57.9 million fish, 
the largest recruitment event for the stock since 1986.
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    \1\ The fishing mortality rate which reduces the spawning stock 
biomass per recruit (SSB/R) to 35 percent of the amount present in 
the absence of fishing. More generally, Fx percent is the fishing 
mortality rate that reduces the SSB/R to x percent of the level that 
would exist in the absence of fishing.
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    The SSC, using the updated assessment information, recommended to 
the Council that the 2010 ABC be set no higher than 25.48 million lb 
(11,558 mt). This results in a TAC established at the ABC level (i.e., 
25.48 million lb, 11,558 mt). Estimated discards of 3.35 million lb 
(1,520 mt) are removed from the TAC to produce a 2010 TAL of 22.13 
million lb (10,038 mt). This TAL is projected to have a 50-percent 
probability of achieving the FTARGET = 
F40 percent = 0.255 in 2010 and is projected to have a 94.6-
percent probability of preventing overfishing on the stock (i.e., 
preventing an F higher than FTHRESHOLD = 
F35 percent = 0.310). The Monitoring Committee concurred 
with the SSC's ABC recommendation and did not recommend any additional 
changes to the 2010 summer flounder management measures that may be 
modified through the specification process. The Monitoring Committee 
recommended that measures to improve the recreational fishery 
management precision may be necessary and, if needed, will be developed 
in November 2009, in advance of the December joint Council and Board 
meeting where 2010 summer flounder recreational management measures 
will be discussed.
    The Council and Board considered the SSC and Monitoring Committee 
recommendations before concurring with ABC/TAC and TAL of 22.13 million 
lb (10,038 mt) that results after removal of estimated discards. 
Fishing under this TAC/TAL level in 2010 is expected to achieve the 
required stock rebuilding for summer flounder to exceed the 
BMSY target by the January 1, 2013, deadline. The proposed 
TAL would be a 19.9-percent increase from the 2008 TAL of 18.45 million 
lb (8,369 mt). All other management measures were recommended to by the 
Council to remain status quo.
    The regulations state that the Council shall recommend, and NMFS 
shall implement, measures (including the TAL) necessary to achieve, 
with at least a 50-percent probability of success, a fishing mortality 
rate that produces the maximum yield per recruit (FMAX). 
However, Framework Adjustment 7 to the FMP (Framework 7) was 
implemented October 1, 2007 (72 FR 55704), to ensure that the best 
available scientific information could be adopted without delay by the 
Council for use in managing summer flounder. As such, the SDWG 2009 
updated assessment recommended FMSY = F35 percent 
as the best available fishing mortality rate estimate to produce the 
optimum yield per recruit and, as such, is now the threshold value for 
assessing whether overfishing is occurring on summer flounder, 
replacing FMAX. A 2000 Federal Court Order (Natural 
Resources Defense Council v. Daley, Civil No. 1:99 CV 00221 (JLG)) also 
requires the annual summer flounder TAL to have at least a 50-percent 
probability of success. As previously stated, the Council and Board's 
recommended TAL of 22.13 million lb (10,038 mt) has a 94.6-percent 
probability of constraining fishing mortality below the overfishing 
threshold of FMSY = F35 percent and a 50-percent 
probability of constraining fishing mortality below the assessment-
recommended management target of F40 percent. NMFS is 
proposing to implement a TAL of 22.13 million lb (10,038 mt) for 2010, 
consistent with the Council's and Board's recommendation.
    Based on the allocation scheme contained in the FMP, the TAL is 
divided 60 percent to the commercial fishery and 40 percent to the 
recreational fishery. This results in an initial commercial quota of 
13.28 million lb (6,023 mt) and a recreational harvest limit of 8.85 
million lb (4,015 mt); however, the FMP also specifies that up to 3 
percent of the TAL may be set aside for research activities before the 
remaining TAL is allocated 60 percent to the commercial sector and 40 
percent to the recreational sector. The Council and Board agreed to set 
aside up to 3 percent of the TAL or 663,900 lb (301 mt). After 
deducting the RSA, the TAL would be divided into a commercial quota of 
12,879,660 lb (5,842 mt) and a recreational harvest limit of 8,586,440 
lb (3,895 mt).
    Table 1 presents the proposed allocations by state with and without 
the commercial portion of the RSA deduction. These state quota 
allocations are preliminary and are subject to reductions if there are 
overages of states quotas carried over from a previous fishing year 
(using the landings information and procedures described earlier). Any 
commercial quota adjustments to account for overages will be included 
in the final rule implementing the 2010 specifications.

[[Page 57137]]



                     Table 1--2010 Proposed Initial Summer Flounder State Commercial Quotas
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                                                              Initial commercial quota    Commercial quota less
                                                   Percent   --------------------------          RSA \1\
                     State                          share                              -------------------------
                                                                   lb         kg \2\         lb         kg \2\
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ME.............................................      0.04756        6,315        2,864        6,126        2,779
NH.............................................      0.00046           61           28           59           27
MA.............................................      6.82046      905,621      410,790      878,452      398,466
RI.............................................     15.68298    2,082,386      944,570    2,019,915      916,233
CT.............................................      2.25708      299,695      135,942      290,704      131,863
NY.............................................      7.64699    1,015,367      460,571      984,906      446,754
NJ.............................................     16.72499    2,220,744    1,007,330    2,154,122      977,110
DE.............................................      0.01779        2,362        1,071        2,291        1,039
MD.............................................      2.03910      270,752      122,813      262,629      119,129
VA.............................................     21.31676    2,830,439    1,283,887    2,745,526    1,245,371
NC.............................................     27.44584    3,644,259    1,653,036    3,534,931    1,603,445
                                                ----------------------------------------------------------------
    Total \3\..................................    100.00001   13,278,001    6,022,901   12,879,661    5,842,214
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\1\ Preliminary Research Set-Aside amount is 663,900 lb (301 mt).
\2\ Kilograms are as converted from pounds and do not sum to the converted total due to rounding.
\3\ Rounding of quotas results in totals exceeding 100 percent.

    The Commission is expected to maintain the voluntary measures 
currently in place to reduce regulatory discards that occur as a result 
of landing limits established by the states. The Commission established 
a system whereby 15 percent of each state's quota would be voluntarily 
set aside each year to enable vessels to land an incidental catch 
allowance after the directed fishery has been closed. The intent of the 
incidental catch set-aside is to reduce discards by allowing fishermen 
to land summer flounder caught incidentally in other fisheries during 
the year, while also ensuring that the state's overall quota is not 
exceeded. These Commission set-asides are not included in these 
proposed specifications because these measures are not authorized by 
the FMP and NMFS does not have authority to implement them.

Scup

    Scup stock status and biological reference point calculation 
methods were evaluated and externally peer-reviewed in December 2008 by 
the Data Poor Stocks Working Group (DPSWG) at the NEFSC. The result of 
these evaluations moved the scup stock assessment into a forward-
projection catch-at-age analytical assessment model and significantly 
modified both biological reference points and assessment of the stock's 
status. The full DPSWG scup reports and findings are available on the 
NEFSC Web site: http://www.nefsc.noaa.gov/saw/.
    Based on the findings of the DPSWG, scup were formally declared 
rebuilt in April 2009 having achieved the revised rebuilding biomass 
target and, as such, are no longer subject to a formal Magnuson-Stevens 
Act rebuilding plan. Framework 7 permits the results of the peer-
reviewed DPSWG's 2008 stock status and biological reference point 
calculation to be utilized as the best available scientific information 
in the specifications process without additional modification of the 
FMP. As such, for the formulation of 2010 scup specifications, the SDWG 
updated scup stock status using the accepted DPSWG model and methods 
using 2008 data, the most recent complete set of fishery dependent and 
independent data. This is the first year of utilizing the DPSWG updated 
methods to provide stock status information for use in developing 
specifications. Using DPSWG methods, the SDWG 2009 assessment update 
indicated that F in 2008 was 0.048. This is below the DPSWG-established 
overfishing threshold of FMSY = FTHRESHOLD = 
F40 percent = 0.177 and, thus, scup are not experiencing 
overfishing. Prior to the DPSWG, a reliable estimate of fishing 
mortality was not available, thus scup stock status relative to 
overfishing was previously unknown. Scup SSB was estimated to have been 
414.5 million lb (118,014 mt) in 2008, substantially above both the 
DPSWG established overfished threshold (\1/2\ Bmsy proxy) of 
101.5 million lb (46,040 mt) and 104 percent above the 
SSB40 percent (as SSBMSY proxy) level of 202.9 
million lb (92,044 mt). Therefore, the stock was not overfished in 2008 
and was well above the SSB rebuilding/MSY level established by the 
DPSGW. The average recruitment class value for scup from 1984 to 2008 
is about 110 million fish. The estimated 2008 recruitment is above 
average at 192.4 million fish.
    Based on the information provided by the SDWG, the SSC recommended 
a 10-percent increase in TAC from the 2009 level as the 2010 scup ABC. 
The SSC expressed concern over the high degree of uncertainty 
associated with the new scup assessment. Their recommendation for a 10-
percent increase follows the advice of the DPSWG peer-review panel 
recommendations for minor, incremental increases in scup catches rather 
than large-scale increases to the maximum permissible level calculated 
when using the FMSY value of 0.177. Both the DPSWG peer-
review panel and SSC noted numerous scientific uncertainties in the new 
assessment. The Monitoring Committee agreed with the SSC ABC 
recommendation and did not recommend any modification of the commercial 
fishery management measures. The Monitoring Committee will discuss 
recreational fishery management measures in November 2009.
    A 10-percent increase in TAC (ABC equivalent) results in a combined 
discard and landings level of 17.09 million lb (7,752 mt) for 2010. 
After removing estimated discards of 2.98 million lb (1,352 mt), the 
resulting TAL consistent with the ABC recommendation is 14.11 million 
lb (6,400 mt). This is a 26.2-percent increase from the 2008 TAL of 
11.18 million lb (4,170 mt). The increase in TAL is not the same as the 
percent increase in TAC from 2009 levels because the discard 
information used in calculating the TAL for the two years is different. 
NMFS is proposing to implement the Council and Board recommendation for 
an initial TAL of 14.11 million lb (6,400 mt) and an 17.09 million-lb 
(7,752 mt) TAC.
    The FMP specifies that the established TAC be allocated 78 percent 
to the commercial sector and 22 percent to the recreational sector. The 
commercial TAC, discards, and TAL

[[Page 57138]]

(i.e., final commercial quota, after reduced for any research set-
aside) are then allocated on a percentage basis to three quota periods, 
as specified in the FMP: Winter I (January-April)--45.11 percent; 
Summer (May-October)--38.95 percent; and Winter II (November-
December)--15.94 percent.
    The commercial and recreational TACs would be 13,330,200 lb (6,046 
mt) and 3,759,800 lb (1,705 mt), respectively. After deducting 
estimated discards (2.32 million lb (1,054 mt) for the commercial 
sector and 0.66 million lb (299 mt) for the recreational sector), the 
initial commercial quota would be 11.0 million lb (4,992 mt) and the 
recreational harvest limit would be 3.10 million lb (1,406 mt). The 
Council and Board agreed to set aside the maximum 3 percent (423,300 lb 
(192 mt)) of the TAL for research activities. Deducting this RSA would 
result in a commercial quota of 10,675,626 lb (4,842 mt) and a 
recreational harvest limit of 3,011,074 million lb (1,366 mt).
    The proposed 2010 specifications would maintain the status quo base 
scup possession limits, i.e., 30,000 lb (13,608 kg) for Winter I, to be 
reduced to 1,000 lb (454 kg) when 80 percent of the quota is projected 
to be reached, and 2,000 lb (907 kg) for Winter II.
    Table 2 presents the 2010 commercial allocation recommended by the 
Council, with and without the preliminary RSA deduction. These 2010 
allocations are preliminary and may be subject to downward adjustment 
in the final rule implementing these specifications due to 2009 or 
other previously unaccounted for overages, based on the procedures for 
calculating overages described earlier.

                                Table 2--2010 Proposed Initial TAC, Initial Commercial Scup Quota, and Possession Limits
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           Initial
                                                                                       Discards in lb     Commercial       Commercial       Possession
                      Period                            Percent      TAC in lb  (mt)        (mt)         quota in lb     quota less RSA    limits in lb
                                                                                                             (mt)         in lb  (mt)          (kg)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter I..........................................           45.11        6,013,253        1,048,537        4,964,716        4,815,775       \1\ 30,000
                                                                             (2,728)            (476)          (2,252)          (2,184)         (13,608)
Summer............................................           38.95        5,192,113          905,354        4,286,759        4,158,156              n/a
                                                                             (2,355)            (411)          (1,944)          (1,886)
Winter II.........................................           15.94        2,124,834          370,509        1,754,325        1,701,695            2,000
                                                                               (964)            (168)            (796)            (772)            (907)
                                                   -----------------------------------------------------------------------------------------------------
    Total \2\.....................................          100.00       13,330,200        2,324,400       11,005,800       10,675,626
                                                                             (6,046)          (1,054)          (4,992)          (4,842)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The Winter I landing limit would drop to 1,000 lb (454 kg) upon attainment of 80 percent of the seasonal allocation.
\2\ Totals subject to rounding error.
n/a--Not applicable.

    The final rule to implement Framework 3 to the FMP (68 FR 62250, 
November 3, 2003) implemented a process, for years in which the full 
Winter I commercial scup quota is not harvested, to allow unused quota 
from the Winter I period to be rolled over to the quota for the Winter 
II period. As shown in Table 3, the proposed specifications would 
maintain the status quo Winter II possession limit-to-rollover amount 
ratios (i.e., 1,500 lb (0.68 mt) per 500,000 lb (227 mt) of unused 
Winter I period quota).

    Table 3--Potential Increase in Winter II Possession Limits Based on the Amount of Unharvested Scup Rolled Over From Winter I to Winter II Period
--------------------------------------------------------------------------------------------------------------------------------------------------------
       Initial  Winter II         Rollover from    Increase in initial                              Final Winter II possession
------------------------------------------------   Winter II possession  -------------------------------------------------------------------------------
                                                          limit
               lb                      kg       -------------------------       mt              lb              kg              lb              kg
                                                            lb
--------------------------------------------------------------------------------------------------------------------------------------------------------
2,000..........................             907                0-499,999           0-227               0               0           2,000             907
2,000..........................             907          500,000-999,999         227-454           1,500             680           3,500           1,588
2,000..........................             907      1,000,000-1,499,999         454-680           3,000           1,361           5,000           2,268
2,000..........................             907      1,500,000-1,999,999         680-907           4,500           2,041           6,500           2,948
2,000..........................             907      2,000,000-2,500,000       907-1,134           6,000           2,722           8,000           3,629
--------------------------------------------------------------------------------------------------------------------------------------------------------

Black Sea Bass

    Black sea bass stock status and biological reference point 
calculation methods were also evaluated and externally peer-reviewed in 
December 2008 by the DPSWG. As was the case for scup, the black sea 
bass assessment was moved into a forward-projection analytical 
assessment model, with resultant changes to both biological reference 
points and assessment of the stock's status. The full DPSWG findings 
for black sea bass are available on the NEFSC Web site: http://www.nefsc.noaa.gov/saw/.
    Based on the findings of the DPSWG, black sea bass were also 
declared rebuilt in April 2009 and are no longer subject to a formal 
Magnuson-Stevens Act rebuilding plan. Framework 7 permits the results 
of the peer-reviewed DPSWG's 2008 stock status and biological reference 
point calculation to be utilized as the best available scientific 
information during the specification-setting process without additional 
modification of the FMP. As was the case for scup, the formulation of 
2010 black sea bass specifications are informed by an update to the 
DPSWG model and methods conducted by the SDWG. The SDWG used the most 
recent complete set of fisher dependent and independent data, updated 
through 2008. This is also the first year of utilizing the DPSWG 
updated methods to provide stock status information for use in 
developing black sea bass specifications.

[[Page 57139]]

    Using the DPSWG methods, the SDWG 2009 assessment update indicated 
that F in 2008 was 0.28, below the DPSWG-established overfishing 
threshold of FMSY = FTHRESHOLD = 
F40 percent = 0.42. Thus, the stock was not overfished in 
2008. Prior to the DPSWG, a reliable estimate of fishing mortality was 
not available and black sea bass stock status relative to overfishing 
was previously unknown. Black sea bass SSB was estimated to have been 
28.4 million lb (12,882 mt) in 2008, above both the DPSWG established 
overfished threshold (\1/2\ BMSY proxy) of 13.8 million lb 
(6,260 mt) and 3 percent above the SSB40 percent (as 
SSBMSY proxy) level of 27.6 million lb (12,519 mt). 
Therefore, the stock was not overfished in 2008 and was above the SSB 
rebuilding/MSY level established by the DPSWG.
    Based on the SDWG assessment update, the SSC recommended status quo 
for the ABC and 2010 black sea bass TAC. Similar to scup, the SSC 
expressed concern over the high degree of uncertainty associated with 
the new black sea bass stock assessment but also expressed concerns 
about limits of understanding the complex life history of black sea 
bass. Both the DPSWG peer-review panel and SSC noted numerous 
uncertainties in the new assessment. In light of these uncertainties, 
the SSC forwarded a recommendation for no change in catch and landings 
for 2010. The Monitoring Committee disagreed with the SSC ABC 
recommendation, stating it was too conservative, and recommended a 
higher ABC to the Council. The Monitoring Committee did not recommend 
any modification of the commercial fishery management measures. The 
Monitoring Committee will discuss recreational fishery management 
measures in November 2009. The Council is bound by the Magnuson-Stevens 
Act to set annual catch limits no higher than the ABC recommended by 
their SSC and, accordingly, voted to recommend a TAC and TAL consistent 
with the SSC's recommendation.
    Status quo measures for black sea bass, consistent with the 
Council's recommendation is an ABC/TAC of 2.71 million lb (1,229 mt). 
After removing estimated discards of 410,000 lb (186 mt) the 2010 TAL 
is 2.3 million lb (1,043 mt). The Council voted to set aside up to 3 
percent of the TAL, 69,000 lb (31 mt), for research. The FMP specifies 
that the TAL is to be allocated 49 percent to the commercial sector and 
51 percent to the recreational sector; therefore, the initial TAL would 
be allocated 1.09 million lb (494 mt) to the commercial sector and 1.14 
million lb (517 mt) to the recreational sector. NMFS is proposing to 
implement these Council-recommended measures for the 2010 black sea 
bass fisheries.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, 
other provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.
    These proposed specifications are exempt from review under 
Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact these 
proposed specifications, if adopted, would have on small entities. A 
description of the action, why it is being considered, and the legal 
basis for this action are contained in the preamble to this proposed 
rule. A copy of this analysis is available from NMFS (see ADDRESSES). A 
summary of the analysis follows.
    The total gross revenue for the individual vessels that would be 
directly regulated by this action is less than $4.0 million for 
commercial fishing and $6.5 million for recreational fishing 
activities. All vessels that would be impacted by this proposed 
rulemaking are therefore considered to be small entities and, thus, 
there would be no disproportionate impacts between large and small 
entities as a result of the proposed rule. The categories of small 
entities likely to be affected by this action include commercial and 
charter/party vessel owners holding an active Federal permit for summer 
flounder, scup, or black sea bass, as well as owners of vessels that 
fish for any of these species in state waters. The Council estimates 
that the proposed 2010 specifications could affect 2,213 vessels that 
held a Federal summer flounder, scup, and/or black sea bass permit in 
2008 (the most recent year of complete permit data). However, the more 
immediate impact of this rule will likely be felt by the 809 vessels 
that actively participated in these fisheries (i.e., landed these 
species) in 2008.
    There are no new reporting or recordkeeping requirements contained 
in any of the alternatives considered for this action. In addition, 
NMFS is not aware of any relevant Federal rules that may duplicate, 
overlap, or conflict with this proposed rule.
    If the Council took no action regarding the 2010 specifications, 
the following would occur: (1) No specifications for the 2010 summer 
flounder, scup, and black sea bass fisheries; (2) the indefinite 
management measures (minimum mesh sizes, minimum sizes, possession 
limits, permit and reporting requirements, etc.) would remain 
unchanged; (3) there would be no quota set-aside allocated to research 
in 2010; and (4) there would be no specific cap on the allowable annual 
landings in these fisheries (i.e., there would be no quotas). 
Implementation of the no action alternative would be inconsistent with 
the goals and objectives of the FMP, its implementing regulations, and 
the Magnuson-Stevens Act. Under the no action alternative, the 
fisheries would operate without an identified cap on allowable landings 
because the quotas implemented for 2009 expire on December 31, 2009, 
and there are no provisions to roll-over those quota provisions into 
2010 if specifications are not published for the year. Therefore, the 
no action alternative is not considered to be a reasonable alternative 
to the preferred action.
    The Council analyzed three sets of combined TAL alternatives for 
the 2010 summer flounder, scup, and black sea bass fisheries. Of these, 
one alternative, labeled Alternative 2, contained the most restrictive 
TAL options (i.e., lowest catch levels). While this alternative would 
achieve the objectives of the proposed action for all three species, it 
has the highest potential economic impact on small entities in the form 
of potential foregone fishing opportunities. Alternative 2 was not 
preferred by the Council because other alternatives considered have 
lower impacts on small entities while achieving the stated objectives 
of this proposed rule.
    The Council analyzed two sets of TAL alternatives for the three 
species that would accomplish the stated objectives of the proposed 
action and that would minimize significant economic impact of the 
proposed rule on small entities. Alternative 1 (Council's preferred) 
would implement the following TALs in 2010: Summer flounder, 22.13 
million lb (10,038 mt); scup, 14.11 million lb (6,400 mt); and black 
sea bass, 2.30 million lb (1,043 mt). Alternative 3 (least restrictive/
highest quota levels) would implement the following TALs in 2010: 
Summer flounder, 26.31 million lb (11,934 mt); scup, 15.40 million lb 
(6,985 mt); and black sea bass, 4.80 million lb (2,177 mt).
    Council staff conducted preliminary analysis on the potential 
economic impact of changes in recreational harvest limits associated 
with the alternatives. For the purposes of the RFA, the only entities 
affected by the

[[Page 57140]]

proposed changes to the recreational harvest limit are owners and 
operators of recreational party/charter (for hire) vessels. These 
analyses indicate that it is possible that adverse economic impacts 
could occur under Alternative 1 but would not be likely under 
Alternative 3. The methods utilized in the analysis compare 2008 
recreational landings to the respective alternative's recreational 
harvest limit and make inferences on possible negative impacts to the 
demand for party/charter vessel trips and angler participation. While 
useful for a general statement on potential impacts, demand for party/
charter trips has remained relatively stable for many years regardless 
of increases or decreases in the recreational harvest limit and 
ascertaining angler satisfaction relative to a total recreational 
harvest limit is subjective. More thorough analysis of recreational 
fisheries impacts will be conducted following the Council's 
recommendations for recreational management measures in December 2009. 
Once actual 2010 recreational management measures recommendations are 
known, more detailed analysis, including an IRFA, will be prepared by 
the Council.
    To assess the impact of the alternatives on commercial fisheries, 
the Council conducted both threshold analysis and analysis of potential 
changes in ex-vessel gross revenue that would result from Alternatives 
1 and 3. Some degree of caution should be utilized when interpreting 
the economic impact data as a host of variations could influence the 
outcomes of the analyses. Vessels have permits for multiple fisheries 
and may supplement income by landing other species; economic dependence 
on a particular species may be masked by vessels landing multiple 
species; ex-vessel value of the three species may change from the 
estimated values utilized in the analysis; revenues may increase or 
decrease as a result of changes to possession limits or seasons set by 
individual states; vessels that fish for these three species under 
state permits are not well captured by the analysis, and reduction in 
commercial quota to account for previous years' overages may still 
occur in the specifications final rule.
    Under Alternative 1 (Council's preferred), analysis indicates that 
88 vessels were expected to incur no revenue change and 721 vessels 
were expected to incur revenue increases relative to 2009. Utilizing 
ex-vessel information from 2008, the Council estimated that Alternative 
1 would increase cumulative summer flounder and scup vessel revenues by 
$5.10 million and $2.56 million, respectively. Black sea bass vessel 
revenues are projected to remain unchanged from 2009 levels. If these 
increases are distributed equally among the 652 vessels that landed 
summer flounder in 2008, the resulting increase in revenue per vessel 
would be $7,822. If equally distributed among the 375 vessels that 
landed scup in 2008, the average revenue increase associated with the 
increase in scup quota is $6,827 per vessel. Under Alternative 1, 
individual vessel revenue is projected to remain unchanged for vessels 
landing black sea bass.
    Under Alternative 3 (least restrictive TALs), analysis indicates 
that the 809 vessels that participated in 2008 summer flounder, scup, 
and black sea bass fisheries would be expected to incur revenue 
increases. The 2010 quotas associated with Alternative 3 would increase 
summer flounder, scup, and black sea bass revenues by approximately 
$10.81 million, $3.64 million, and $3.51 million, respectively, 
relative to 2009. If the revenue increases were equally distributed 
across the 809 vessels that landed summer flounder, scup, and black sea 
bass in 2008, the average increase in revenue would be $22,220 per 
vessel.
    The Council selected Alternative 1 (preferred) over Alternative 3 
(least restrictive) because, the catch and landing levels associated 
with Alternative 1 are consistent with the ABC recommendations from the 
Council's SSC. Adoption of Alternative 3 measures would exceed the SSC 
recommendations for ABC for all three species and would violate section 
302(h)(6) of the Magnuson-Stevens Act, which states that the Council 
must develop annual catch limits for each managed fishery that may not 
exceed the fishing level recommendation of the SSC (i.e., the ABC). In 
addition, the summer flounder TAL associated with Alternative 3 is not 
projected to provide the necessary stock rebuilding by January 1, 2013, 
as required by the summer flounder rebuilding plan. As such, the IRFA 
provided by the Council indicates that the TALs of Alternative 1 
satisfy the objectives of the applicable statutes and rebuilding 
program and minimize, to the extent practicable, the adverse impacts of 
the proposed rule on directly regulated small entities. NMFS agrees 
with the Council's IRFA analysis and rationale for recommending TAL 
Alternative 1. As such, NMFS is proposing to implement the TALs 
contained in Alternative 1 (Summer flounder, 22.13 million lb (10,038 
mt); scup, 14.11 million lb (6,400 mt); and black sea bass, 2.30 
million lb (1,043 mt)) for 2010.

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

    Dated: October 30, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. E9-26553 Filed 11-3-09; 8:45 am]
BILLING CODE 3510-22-P