[Federal Register Volume 75, Number 221 (Wednesday, November 17, 2010)]
[Proposed Rules]
[Pages 70192-70198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29000]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 101029427-0427-01]
RIN 0648-XY82


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; 2011 Summer Flounder, Scup, and 
Black Sea Bass Specifications; 2011 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 2011 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), 16 U.S.C. 1801 
et seq., require a notice to be published to provide interested parties 
the opportunity to comment on applications for EFPs. The intent of this 
action is to establish 2011 specifications for the summer flounder, 
scup, and black sea bass fisheries, and to provide notice of EFP 
requests, in accordance with the FMP and Magnuson-Stevens Act.

DATES: Comments must be received on or before December 2, 2010.

ADDRESSES: You may submit comments, identified by RIN 0648-XY82, by any 
one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
    <bullet> Fax: (978) 281-9135.
    <bullet> 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 2011 Summer Flounder,

[[Page 70193]]

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 
Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery 
Management Council, Suite 201, 800 North State Street, Dover, DE 19901. 
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). 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[Egr]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).
    Specifications, as referred to in this proposed rule, are the 
combined suite of catch levels established for one or more fishing 
years. These catch levels include the commercial fishery quota, 
recreational harvest limit, and RSA. The specification process also 
allows for modification of a select number of management measures such 
as minimum size for commercially caught fish and minimum trawl net mesh 
sizes. The Council's process for establishing specifications relies on 
provisions within the FMP and its implementing regulations as well as 
requirements established by the Maguson-Stevens Act. Specifically, 
section 302(g)(1)(B) of the Magnuson-Stevens Act states that a 
Scientific and Statistical Committee (SSC) for each Regional Fishery 
Management Council shall provide its Council ongoing scientific advice 
for fishery management decisions, including recommendations for 
acceptable biological catch (ABC), preventing overfishing, maximum 
sustainable yield (MSY), and achieving rebuilding targets. The ABC is a 
level of catch that accounts for the scientific uncertainty in the 
estimate of that stock's defined overfishing level. The Council's SSC 
met on July 28 and 29, 2010, to recommend ABCs for the 2011 summer 
flounder, scup, and black sea bass specifications.
    The FMP's implementing regulations require the involvement of a 
monitoring committee in the specification process for each species. 
Since the Magnuson-Stevens Act requirements for the SSC to recommend 
ABC became effective, the monitoring committees' role has largely been 
to recommend any reduction in catch limits from the SSC-recommended 
ABCs to offset management uncertainty, and to recommend other 
management measures (e.g., mesh requirements, minimum commercial fish 
sizes, gear restrictions, possession restrictions, and area 
restrictions) needed for the efficient management of these three 
species' fisheries. The Summer Flounder Monitoring Committee, Scup 
Monitoring Committee, and Black Sea Bass Monitoring Committee met on 
July 30, 2010, to discuss specification-related recommendations for the 
2011 fisheries.
    Following the above meetings, the Council and the Commission's 
Summer Flounder, Scup, and Black Sea Bass Management Board (Board) 
considered the recommendations of the SSC and the three monitoring 
committees' and public comments, and made their specification 
recommendations. The Council and Board made their recommendations at a 
meeting held August 18, 2010. While the Board action on specifications 
was finalized at the August meeting, the Council's recommendations must 
be reviewed by NMFS to assure that they comply with the FMP and 
applicable law. NMFS also must conduct notice-and-comment rulemaking to 
propose and implement the final specifications.
    The FMP also contains formulas to divide the specification catch 
limits into commercial and recreational fishery allocations, state-by-
state quotas, and quota periods, depending on the species in question. 
The FMP allocation provisions cannot be modified through the 
specification process. Rather, the Council would be required to develop 
and recommend allocation changes by amending the FMP. This proposed 
rule outlines the application of the existing allocation provisions for 
each species and provides the resulting allocations, by state and 
sector, as appropriate, for each species.
    The involvement of the SSC in the specifications process and the 
evolving role of the monitoring committees has substantially modified 
the manner in which specifications are developed and considered by the 
Council. There is increased discussion and documentation regarding each 
species' stock status, scientific uncertainty associated with the stock 
and/or stock assessment, the risk of overfishing, management issues, 
and the derivation of each group's respective recommendation to the 
Council. In previous years' specification process, NMFS often provided 
extensive summarization of these issues in the proposed specification 
rule; however, doing so duplicates the extensive record established by 
the Council process. As such, only a nominal overview of each step of 
the specification process is provided in this proposed rule. Persons 
seeking more detailed information on the Council-related aspects of the 
specifications process, including the issues considered by the SSC and 
monitoring committees, are encouraged to obtain documents on these 
subjects, which are available from the Council or by consulting the 
Council's EA/IRFA (see ADDRESSES section). NMFS has participated in and 
relied on the documentation from the updated stock assessment 
proceedings, SSC and monitoring committee meetings and recommendations, 
and Council meeting in completing this proposed rule.

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 in support of 
scientific research. For the 2011 fishing year, NMFS published a 
Federal Register notice soliciting research proposals based upon 
research priorities

[[Page 70194]]

identified by the Council (75 FR 3092, January 19, 2010).
    NMFS intends to conditionally approve three research projects for 
the harvest of the portion of the set-aside quota that has been 
recommended by the Council and the Commission. In anticipation of 
receiving applications for 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 likely 2011 Mid-Atlantic RSA 
projects, including exemptions that will likely be required to conduct 
the proposed research. The RSA amounts may be adjusted, following 
consultation with RSA applicants, in the final rule establishing the 
2011 specifications for the summer flounder, scup, black sea bass, 
Loligo squid, butterfish, and Atlantic bluefish 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 2011, the conditionally approved projects may collectively be 
awarded the following amounts of RSA: 884,400 lb (401 mt) of summer 
flounder; 600,000 lb (272 mt) of scup; 108,000 lb (49 mt) of black sea 
bass; 727,527 lb (330 mt) of Loligo squid; 818,790 lb (371 mt) of 
bluefish; and 33,069 lb (15 mt) of butterfish. The harvest of RSA quota 
would occur January 1-December 31, 2011, by vessels conducting 
compensation fishing. Vessels harvesting research quota in support of 
approved research projects would be issued EFPs authorizing them to 
exceed Federal possession limits and to fish during Federal quota 
closures. These exemptions are necessary to facilitate compensation 
fishing and to allow project investigators to recover research 
expenses, as well as to adequately compensate fishing industry 
participants harvesting research quota. Vessels harvesting research 
quota would operate under all other regulations that govern the 
fishery, unless specifically exempted in a separate EFP.
    2011 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, 2011, at 15 hard bottom study sites. Up to two vessels would 
conduct the research survey. Sampling would occur off the coasts of 
Rhode Island and southern Massachusetts, with the furthest west site 
off of Block Island near Southwest Shoals. To achieve the research 
objectives, the principal investigators would require exemptions from 
gear requirements (excluding marine mammal avoidance and/or release 
devices) in order to sample small scup and black sea bass, and from 
minimum fish sizes and possession limits for data collection purposes.
    Project number 2 would conduct a near-shore trawl survey between 
Aquinnah, Massachusetts, and Cape Hatteras, North Carolina, including 
both Block Island and Rhode Island Sounds. Two survey cruises would 
occur (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, 
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, which could operate under a Letter of Acknowledgment 
(LOA), as established by experimental fishing regulations found at 50 
CFR 600.745.
    Project number 3 would conduct a black sea bass mark-recapture 
study using commercial pot and hook-and-line fishing gear to monitor 
changes in the size at age and sex distribution of black sea bass at 
three sites off New Jersey during the spawning season (May through 
August). Sampling would be conducted on the following three artificial 
reef sites off southern New Jersey: Ocean City; Wildwood; and Cape May 
reefs. Vessels conducting research trips would tag black sea bass with 
conventional and acoustic tags, and clustered hydrophones would be 
placed in the study area for 2.5 months. Subsequent research trips 
would conduct fishing with commercial pots and hook and line gear to 
re-capture tagged fish, and to monitor the movement of fish with the 
acoustic tags. One commercial pot vessel and several party boats would 
conduct the research. Vessels conducting research activities would 
require exemption from commercial and recreational black sea bass quota 
closures to ensure the ability to sample during such closures, and 
exemption from black sea bass minimum fish size and possession limits 
for the purpose of collecting scientific data.

Summer Flounder

    The summer flounder stock is currently under a rebuilding program, 
and rebuilding must be complete by January 1, 2013. The stock 
assessment update utilized to derive specification recommendations 
indicates that summer flounder were not overfished and that overfishing 
did not occur in 2009, the most recent year of available data. 
Furthermore, stock projections in the assessment update indicate that 
the rebuilding objective is likely to be attained ahead of schedule.
    Based on this information, the SSC recommended to the Council that 
the 2011 ABC for summer flounder be set no higher than 33.95 million lb 
(15,399 mt). This results in a Total Allowable Catch (TAC; combined 
landings and discards) established at the ABC level (i.e, 33.95 million 
lb, 15,399 mt). Estimated commercial and recreational discards of 4.47 
million lb (2,028 mt) are removed from the TAC to produce a 2011 TAL of 
29.48 million lb (13,372 mt). This TAL is projected to have a 50-
percent probability of achieving the F<INF>TARGET</INF> = 
F<INF>40 percent</INF> = 0.255 in 2011, and is projected to have a 98-
percent probability of preventing overfishing of the stock (i.e., 
preventing an F higher than F<INF>THRESHOLD</INF> = 
F<INF>35 percent</INF> = 0.310). The Summer Flounder Monitoring 
Committee concurred with the SSC's ABC recommendation, and did not 
recommend any additional changes to either the TAC or to the 2011 
summer flounder management measures that may be modified through the 
specification process.
    The Council and Board considered the SSC and Summer Flounder 
Monitoring Committee recommendations before concurring with ABC/TAC and 
TAL of 29.48 million lb (13,372 mt) that results after removal of 
estimated discards. Fishing under this TAC/TAL level in 2011 is not 
expected to compromise summer flounder stock rebuilding, nor will 
fishing at this level present a high likelihood of overfishing the 
stock. The proposed TAL would be a 33.2-percent increase from the 2009 
TAL of 22.13

[[Page 70195]]

million lb (10,038 mt). All other management measures were recommended 
by the Council to remain status quo.
    The summer flounder regulations at 50 CFR 648.100 (a) 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 (F<INF>MAX</INF>). Framework Adjustment 7 to 
the FMP (Framework 7) was implemented on October 1, 2007 (72 FR 55704), 
to allow the best available scientific information be adopted without 
delay by the Council for use in managing summer flounder. The updated 
SDWG assessment recommended F<INF>MSY</INF> = F<INF>35 percent</INF> as 
the best available fishing mortality rate estimate to produce the 
optimum yield per recruit and this assessment is now the threshold 
value for determining whether overfishing is occurring on summer 
flounder, replacing F<INF>MAX</INF>. 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 29.48 million lb (13,372 mt) has a 98-
percent probability of constraining fishing mortality below the 
overfishing threshold, and a 50-percent probability of achieving the 
assessment-recommended management target. NMFS therefore proposes to 
implement a TAL of 29.48 million lb (13,372 mt) for 2011, 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 division results in an initial commercial 
quota of 17.69 million lb (8,024 mt), and a recreational harvest limit 
of 11.79 million lb (5,349 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 to the commercial and recreational 
sectors. The Council and Board agreed to set aside up to 3 percent of 
the TAL, or 884,400 lb (401 mt). After deducting 3 percent of the 2011 
TAL as RSA, the resulting sector allocations would be a commercial 
quota of 17.2 million lb (7,782 mt) and a recreational harvest limit of 
11.4 million lb (5,188 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. 
Any commercial quota adjustments to account for overages will be 
included in the final rule implementing the 2011 specifications.

                     Table 1--2011 Proposed Initial Summer Flounder State Commercial Quotas
----------------------------------------------------------------------------------------------------------------
                                                     Initial commercial quota      Commercial quota less RSA \1\
              State                Percent share ---------------------------------------------------------------
                                                        lb            kg \2\            lb            kg \2\
----------------------------------------------------------------------------------------------------------------
ME..............................         0.04756           8,412           3,816           8,160           3,701
NH..............................         0.00046              81              37              79              36
MA..............................         6.82046       1,206,403         547,224       1,170,211         530,808
RI..............................        15.68298       2,774,006       1,258,289       2,690,785       1,220,540
CT..............................         2.25708         399,232         181,092         387,255         175,659
NY..............................         7.64699       1,352,600         613,539       1,312,022         595,133
NJ..............................        16.72499       2,958,316       1,341,892       2,869,567       1,301,635
DE..............................         0.01779           3,147           1,427           3,052           1,385
MD..............................         2.03910         360,676         163,603         349,856         158,695
VA..............................        21.31676       3,770,509       1,710,303       3,657,393       1,658,994
NC..............................        27.44584       4,854,620       2,202,056       4,708,982       2,135,994
    Total \3\...................       100.00001      17,688,002       8,023,278      17,157,362       7,782,579
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\1\ Preliminary Research Set-Aside amount is 884,400 lb (401 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 maintaining in place the voluntary measures to 
reduce regulatory discards that occur as a result of landing limits 
established by the states. The Commission established a system whereby 
a 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 Federal FMP and NMFS 
does not have authority to implement them.

Scup

    The scup stock is not subject to a rebuilding plan at this time. 
The updated scup stock assessment indicates that the stock was not 
overfished nor subject to overfishing in 2009, the most recent year of 
complete data available in the assessment update.
    The SSC recommended an ABC for scup based on 75 percent of 
F<INF>MSY</INF> (F = 0.133), resulting in an ABC/TAC of 51.7 million lb 
(23,451 mt). The SSC also conveyed concern about rapid increases in 
catches to achieve the MSY value for the scup stock. The cautionary 
statement to not increase catches to the full MSY quickly was 
originally issued by the peer review panel that reviewed a 2009 Data 
Poor Stocks Working Group assessment of the scup stock.
    The Scup Monitoring Committee proposed a range of TACs derived from 
the ABC recommendation. The range spanned from the landings associated 
with the MSY value for the scup stock of 35.1 million lb (15,921 mt) to 
the status quo TAC of 17.09 million lb (7,752 mt). The Scup Monitoring 
Committee also shared the concerns of the SSC and the assessment peer 
review panel that had cautioned against rapidly increasing scup catches 
to meet the MSY value of 35.1 million lb (15,921 mt).
    The Council adopted a TAC for scup of 24.1 million lb (10,932 mt) 
as their recommendation for 2011. In turn, NMFS is proposing this TAC 
as the 2011 catch level for scup. This TAC

[[Page 70196]]

level would provide for a 20.0 million lb TAL (9,072 mt), and would be 
divided into the commercial and recreational allocations as outlined in 
the scup regulations. 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 (i.e., final 
commercial quota, after reduced for any RSA) 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 proposed TAL would be subdivided into an initial commercial 
quota of 15.6 million lb (7,076 mt) and a recreational harvest limit of 
4.4 million lb (1,996 mt). The Council voted to set up to 3 percent of 
the TAL or 600,000 lb (272 mt), aside for 2011 RSA. If it is, the 
commercial quota would be reduced to 15.1 million lb (6,864 mt), with a 
recreational harvest limit of 4.3 million lb (1,936 mt).
    The proposed 2011 specifications would maintain the status quo base 
scup possession limits, i.e., 30,000 lb (13,608 kg) per trip for Winter 
I, to be reduced to 1,000 lb (454 kg) per trip when 80 percent of the 
quota is projected to be reached, and 2,000 lb (907 kg) per trip for 
Winter II.
    Table 2 presents the 2011 commercial allocation recommended by the 
Council, with and without the preliminary RSA deduction. These 2010 
allocations are preliminary and may be adjusted in the final rule 
implementing these specifications due to previously unaccounted for 
overages, based on the procedures for calculating overages.

                                Table 2--2011 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       8,479,778       1,442,618       7,037,160       6,826,045      \1\ 30,000
                                                                                 (3,846)           (654)         (3,192)         (3,096)        (13,608)
Summer......................................................       38.95       7,321,821       1,245,621       6,076,200       5,893,914             n/a
                                                                                 (3,321)           (565)         (2,756)         (2,673)
Winter II...................................................       15.94       2,996,401         509,761       2,486,640       2,412,041           2,000
                                                                                 (1,359)           (231)         (1,128)         (1,094)           (907)
                                                             -------------------------------------------------------------------------------------------
    Total \2\...............................................      100.00      18,798,000       3,198,000      15,600,000      15,132,000             n/a
                                                                                 (8,527)         (1,451)         (7,076)         (6,864)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 Winter I to Winter II       Increase in initial      Final Winter II
   possession limit    -------------------------------------------  Winter II possession      possession limit
-----------------------                                                     limit           after rollover from
                                                                  ------------------------ Winter I to Winter II
    lb          kg                  lb                    mt                              ----------------------
                                                                       lb          kg          lb          kg
----------------------------------------------------------------------------------------------------------------
    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 are not subject to a stock rebuilding program. The 
updated stock assessment indicates that black sea bass were not 
overfished and overfishing did not occur in 2009.
    The SSC recommended that ABC for black sea bass remain at the 
status quo level of 4.5 million lb (2,041 mt) for 2011. The SSC stated 
that there remains a high degree of uncertainty surrounding the 
overfishing limit estimate for the black sea bass stock, as well as 
considerable uncertainties about the black sea bass stock structure, 
life history, and retrospective patterns within the stock assessment.
    The Black Sea Bass Monitoring Committee concurred with the ABC 
recommendation, and recommended a TAC of 4.5 million lb (2,041 mt) to 
the Council.
    The Council and Board considered the SSC and Black Sea Bass 
Monitoring Committee recommendations at their August meeting. The 
Council and Board concurred with the ABC/TAC recommendation of 4.5 
million lb (2,041 mt) for 2011. After estimated commercial fishery and 
recreational landings are removed from the ABC/TAC, the TAL for black 
sea bass would be 3.6 million lb (1,633 mt).

[[Page 70197]]

    NMFS is proposing a 2011 TAC of 4.5 million lb (2,041 mt) and TAL 
of 3.6 million lb (1,633 mt) for the 2011 black sea bass fisheries, 
consistent with the recommendations of the Council and Board. 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 1.76 million lb (798 mt) to the 
commercial sector as a commercial quota and 1.84 million lb (835 mt) to 
the recreational sector as a recreational harvest limit. The Council 
and Board voted to set aside up to 3 percent of the TAL, or 108,000 lb 
(49 mt), as RSA. This would adjust the commercial quota to 1.7 million 
lb (776 mt) and the recreational harvest limit to 1.8 million lb (808 
mt). Only the ABC/TAC is the same as last year, the overall TAL being 
proposed for 2011 (3.6 million lb (1,633 mt)) is 100,000 lb (45 mt) 
less than the status quo because the updated discard estimate is higher 
for 2011 than for 2010.

Summary of NMFS' Proposed 2011 Summer Flounder, Scup, and Black Sea 
Bass Specifications

    Summer Flounder: TAL of 29.48 million lb (13,372 mt); RSA of 
884,400 lb (401 mt); commercial quota of 17,157,360 lb (7,782 mt); and 
a recreational harvest limit of 11,438,240 lb (5,188 mt).
    Scup: 20.0 million lb TAL (9,072 mt); RSA of 600,000 lb (272 mt); 
commercial quota to 15,132,000 lb (6,864 mt); and a recreational 
harvest limit of 4,268,000 lb (1,936 mt).
    Black Sea Bass: TAL of 3,600,000 lb (1,633 mt); RSA of 108,000 lb 
(49 mt); commercial quota 1,711,080 lb (776 mt); and recreational 
harvest limit of 1,780,920 (808 mt).

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 by the Council, as required by section 603 of 
the Regulatory Flexibility Act (RFA), to examine the impacts of these 
proposed specifications on small business entities, if adopted. A 
description of the specifications, why they are being considered, and 
the legal basis for proposing and implementing specifications for the 
summer flounder, scup, and black sea bass fisheries are contained in 
the preamble to this proposed rule. A copy of the detailed RFA analysis 
is available from NMFS or the Council (see ADDRESSES). The Council's 
analysis made use of quantitative approaches when possible. Where 
quantitative data on revenues or other business-related metrics that 
would provide insight to potential impacts were not available to inform 
the analyses, qualitative analyses were conducted. A summary of the 
2011 specifications RFA analysis follows.
    Small businesses operating in commercial and recreational (i.e., 
party and charter vessel operations) fisheries have been defined by the 
Small Business Administration as firms with gross revenues of up to 
$4.0 and $6.5 million, respectively. 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. All federally permitted 
vessels fall into the definition of small businesses; thus, there would 
be no disproportionate impacts between large and small entities as a 
result of the proposed rule.
    The Council estimates that the proposed 2011 specifications could 
affect 2,206 vessels that held a Federal summer flounder, scup, and/or 
black sea bass permit in 2009 (the most recent year of complete permit 
data). However, the more immediate impact of this rule will likely be 
realized by the 810 vessels that actively participated in these 
fisheries (i.e., landed these species) in 2009.
    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 2011 specifications, 
several indefinite measures would remain in effect until otherwise 
changed; however, many components of the 2010 specifications expire on 
December 31, 2010. These include TALs for all three species and TAC for 
scup. There are no roll-over provisions for the 2010 quotas if the 2011 
specifications are not made effective, and so, without specified 
quotas, NMFS would have no mechanism to close fisheries if management 
limits were exceeded. This would give rise to a situation in which the 
goals and objectives of the FMP, its implementing regulations, and the 
Magnuson-Stevens Act would all be violated. Therefore, the no action 
alternative is not considered to be a reasonable alternative to the 
preferred action of developing and implementing 2011 specifications 
and, as such, it was excluded from detailed analysis in the Council's 
EA/RFA analyses.
    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 for each species, contained the 
most restrictive TAL options (i.e., lowest total landing levels--summer 
flounder, 22.13 million lb (10,038 mt); scup, 14.11 million lb (6,400 
mt); black sea bass, 2.30 million lb (1,043 mt)). While the Alternative 
2 measures would achieve the objectives of the proposed action for each 
of three species, they have the highest potential adverse economic 
impacts on small entities in the form of potential foregone fishing 
opportunities. Alternative 2 was not preferred by the Council because 
the other alternatives considered are expected have lower adverse 
impacts on small entities while achieving the stated objectives of 
rebuilding the summer flounder stock and sustaining the scup and black 
sea bass stocks, consistent with the FMP and Magnuson-Stevens Act. 
Accordingly, Alternative 2 was excluded from this analysis.
    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 the adverse economic impacts of the 
proposed rule on small entities. Alternative 1 (Council's preferred) 
would implement the following TALs in 2011: Summer Flounder, 29.48 
million lb (13,372 mt); scup, 20.0 million lb (9,072 mt); and black sea 
bass, 3.6 million lb (1,633 mt). Alternative 3 (least restrictive/
highest quota levels) would implement the following TALs in 2011: 
Summer flounder, 35.05 million lb (15,898 mt); scup, 28.96 million lb 
(13,136 mt); and black sea bass, 4.35 million lb (1,973 mt).

Commercial Fishery Impacts

    To analyze the potential impacts of the proposed alternatives, the 
Council examined the total revenue earned by an individual vessel in 
2009 (as a proxy for 2010), and compared the potential revenue in 2011 
given the changes in fishing opportunity available through changes in 
harvest levels from 2010 to 2011. While there are caveats to such an 
approach--for example a vessel may hold multiple permits and supplement 
losses of opportunity in one fishery with another comparable species; 
or ex-vessel prices may change from levels utilized

[[Page 70198]]

in the analysis--the approach taken provides a rational basis for 
explaining the potential financial impact to participating vessels. It 
is important to note that actual impacts to individual vessels will 
likely differ as a product of the many variables that cannot be easily 
accounted for in the Council's analyses.
    Under Alternative 1 (Council's preferred), assuming the increase in 
total ex-vessel gross revenues associated with the increased commercial 
quota for summer flounder is equally distributed among the 673 vessels 
that landed summer flounder in 2009, the potential average revenue 
could increase by $12,036 per vessel. For scup, the expected revenue 
across the 398 vessels that landed scup in 2009 could increase by an 
average of $8,492 per vessel. Revenues are projected to decrease by 
$304 across the 460 vessels that landed black sea bass in 2009, due to 
the slight commercial quota decrease under Alternative 1. The Council's 
analysis indicated that this decrease in black sea bass would comprise 
less than 5 percent of these vessels' expected revenue.
    Under Alternative 3 (least restrictive TALs), analysis indicates 
that the 2011 commercial quotas could increase revenues per vessel as 
follows: Summer flounder, $21,085; scup, $21,432; and black sea bass, 
$1,826. The potential average increase in revenue per vessel for the 
combined suite of summer flounder, scup, and black sea bass landed by 
810 vessels in 2009 was estimated to be $29,086 per vessel.

Recreational Fishery Impacts

    While the specifications proposed would establish a 2011 
recreational harvest limit for summer flounder, scup, and black sea 
bass, the management measure details for recreational fisheries will be 
decided by the Council in December 2010, followed by NMFS rulemaking in 
the first quarter of 2011. A comprehensive analysis of the impacts 
associated with the recommended recreational management measures will 
be provided to NMFS from the Council to support these activities.
    The Council also examined the potential impact on the demand for 
recreational for-hire party/charter vessel trips resulting from 
Alternatives 1 and 3. While impacts are also likely to occur for 
individual private recreational fishery participants and fishing-
related businesses such as bait and tackle shops, these are neither 
regulated small-business entities under NMFS' jurisdiction, nor is 
there participation cost or other economic metric data available to 
assess potential impact on such groups. The Council's analysis 
indicates that demand for for-hire trips and general saltwater 
recreational angler participation has trended upward slightly over the 
past decade. The Council's analysis also indicated that it was not 
possible to reasonably predict behavioral or demand changes in response 
to the recreational harvest limits proposed under any of the three 
alternatives. However, under Alternatives 1 and 3, it is not expected 
that, based on current recreational landings data, 2011 management 
measures (i.e., minimum fishing size, possession limits, and fishing 
seasons) would need to be made more constraining, except for potential 
restrictions under the Alternative 1 black sea bass recreational 
harvest limit. As previously stated, the Council will undertake 
additional recreational management measures development and analysis in 
December 2010.

Summary

    The Council selected Alternative 1 (preferred) over Alternative 3 
(least restrictive) stating that, while Alternative 3 measures would 
provide higher economic benefits than the preferred measures of 
Alternative 1, the Alternative 3 measures were expected to result in 
long-term negative impacts for the summer flounder, scup, and black sea 
bass stocks, and were inconsistent with the advice provided to the 
Council from the SSC and its monitoring committees. NMFS agrees with 
the Council's IRFA analysis and rationale for recommending the TALs in 
Alternative 1. As such, NMFS is proposing to implement the Alternative 
1 TALs for 2011: Summer flounder, 35.05 million lb (15,898 mt); scup, 
28.96 million lb (13,136 mt); and black sea bass, 4.35 million lb 
(1,973 mt).

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

    Dated: November 12, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2010-29000 Filed 11-16-10; 8:45 am]
BILLING CODE 3510-22-P