70192 Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Proposed Rules 

specifications are identical to the status 

quo alternative. 

This proposed rule contains a 

collection-of-information requirement 

subject to the Paperwork Reduction Act 

(PRA), which was previously approved 

by OMB under OMB Control Number 

0648–0601. The public reporting burden 

for the phone call to declare a Loligo 

fishing trip is estimated to average 2 

min per call per trip. Public burden for 

the phone call to cancel a Loligo trip is 

estimated to average 1 min. Send 

comments regarding these burden 

estimates or any other aspect of this data 

collection, including suggestions for 

reducing the burden, to NMFS (see 

ADDRESSES) and by e-mail to 

OIRA_Submission@omb.eop.gov, or fax 

to 202–395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, and no person shall be 

subject to penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Recordkeeping and 

reporting requirements. 

Dated: November 12, 2010. 

Eric C. Schwaab, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 648 is proposed 

to be amended as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

1. The authority citation for part 648 

continues to read as follows: 

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

2. In § 648.21, paragraph (f)(2) is 

revised to read as follows: 

§ 648.21 Procedures for determining initial 

annual amounts. 

* * * * * 

(f) * * * 

(2) Any underages of commercial 

period quota for Trimester I that are 

greater than 25 percent of the Trimester 

I quota will be reallocated to Trimesters 

II and III of the same year. The 

reallocation of quota from Trimester I to 

Trimester II is limited, such that the 

Trimester II quota may only be 

increased by 50 percent; the remaining 

portion of the underage will be 

reallocated to Trimester III. Any 

underages of commercial period quota 

for Trimester I that are less than 25 

percent of the Trimester I quota will be 

applied to Trimester III of the same year. 

Any overages of commercial quota for 

Trimesters I and II will be subtracted 

from Trimester III of the same year. 

* * * * * 

3. In § 648.22, paragraph (a)(2)(i) is 

revised to read as follows: 

§ 648.22 Closure of the fishery. 

(a) * * * 

(2) * * * 

(i) If the Regional Administrator 

determines that the Trimester I closure 

threshold has been underharvested by 

25 percent or more, then the amount of 

the underharvest shall be reallocated to 

Trimesters II and III, as specified at 

§ 648.21(f)(2), through notice in the 

Federal Register. 

* * * * * 

4. Section 648.26 as amended at 75 FR 

11450, March 11, 2010, effective January 

1, 2011, and is further amended by 

revising paragraphs (a) and (d) to read 

as follows: 

§ 648.26 Observer requirements for the 

Loligo fishery. 

(a) A vessel issued a Loligo and 

butterfish moratorium permit, as 

specified at § 648.4(a)(5)(i), must, for the 

purposes of observer deployment, have 

a representative provide notice to NMFS 

of the vessel name, vessel permit 

number, contact name for coordination 

of observer deployment, telephone 

number or email address for contact; 

and the date, time, port of departure, 

and approximate trip duration, at least 

72 hr, but no more than 10 days prior 

to beginning any fishing trip, unless it 

complies with the possession 

restrictions in paragraph (c) of this 

section. 

* * * * * 

(d) If a vessel issued a Loligo and 

butterfish moratorium permit, as 

specified at § 648.4(a)(5)(i), intends to 

possess, harvest, or land 2,500 lb (1.13 

mt) or more of Loligo per trip or per 

calendar day, has a representative notify 

NMFS of an upcoming trip, is selected 

by NMFS to carry an observer, and then 

cancels that trip, then the representative 

is required to provide notice to NMFS 

of the vessel name, vessel permit 

number, contact name for coordination 

of observer deployment, and telephone 

number or email for contact, and the 

intended date, time, and port of 

departure for the cancelled trip prior to 

the planned departure time. In addition, 

if a trip selected for observer coverage 

is canceled, then that vessel is required 

to carry an observer, provided an 

observer is available, on its next trip. 

[FR Doc. 2010–29002 Filed 11–16–10; 8:45 am] 

BILLING CODE 3510–22–P 

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. 

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 MidAtlantic 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: 

• 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 2011 Summer Flounder, 


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Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Proposed Rules 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 35E13.3’ 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 MagnusonStevens 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 


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70194 Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Proposed Rules 

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 

FTARGET = F40 percent = 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 FTHRESHOLD = F35 percent = 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 


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Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Proposed Rules 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 (FMAX). 

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 FMSY = F35

percent 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 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 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 assessmentrecommended 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

State Percent share 

Initial commercial quota Commercial quota less RSA1

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

1Preliminary Research Set-Aside amount is 884,400 lb (401 mt). 

2Kilograms 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 FMSY (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 


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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

Period Percent TAC 

in lb (mt) 

Discards 

in lb (mt) 

Initial 

commercial 

quota 

in lb 

(mt) 

Commercial 

quota less 

RSA in lb 

(mt) 

Possession 

limits 

in lb (kg) 

Winter I ........................................................... 45.11 8,479,778 

(3,846) 

1,442,618 

(654) 

7,037,160 

(3,192) 

6,826,045 

(3,096) 

1 30,000 

(13,608) 

Summer .......................................................... 38.95 7,321,821 

(3,321) 

1,245,621 

(565) 

6,076,200 

(2,756) 

5,893,914 

(2,673) 

n/a 

Winter II .......................................................... 15.94 2,996,401 

(1,359) 

509,761 

(231) 

2,486,640 

(1,128) 

2,412,041 

(1,094) 

2,000 

(907) 

Total 2 ...................................................... 100.00 18,798,000 

(8,527) 

3,198,000 

(1,451) 

15,600,000 

(7,076) 

15,132,000 

(6,864) 

n/a 

1The Winter I landing limit would drop to 1,000 lb (454 kg) upon attainment of 80 percent of the seasonal allocation. 

2Totals 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-torollover 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 possession 

limit 

Rollover from Winter I 

to Winter II 

Increase in initial Winter II 

possession limit 

Final Winter II 

possession 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). 


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Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Proposed Rules 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 


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70198 Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Proposed Rules 

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 smallbusiness 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 


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