81498 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

pursuant to the Congressional Review 

Act, see 5 U.S.C. 801(a)(1)(A). 

List of Subjects in 47 CFR Part 73 

Communications equipment, 

Reporting and recordkeeping 

requirements, Television. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Final Rules 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 73 as 

follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336 

and 339. 

■ 2. Section 73.686 is amended by 

revising the heading of paragraph (d) 

and by adding a new paragraph (e) to 

read as follows: 

§ 73.686 Field strength measurements. 

* * * * * 

(d) NTSC—Collection of field strength 

data to determine NTSC television 

signal intensity at an individual 

location—cluster measurements— 

* * * * * 

(e) DTV—Collection of field strength 

data to determine digital television 

signal intensity at an individual 

location—cluster measurements—(1) 

Preparation for measurements— 

(i) Testing antenna. The test antenna 

shall be either a standard half-wave 

dipole tuned to the center frequency of 

the channel being tested or a gain 

antenna provided its antenna factor for 

the channel(s) under test has been 

determined. Use the antenna factor 

supplied by the antenna manufacturer 

as determined on an antenna range. 

(ii) Testing locations—At the test site, 

choose a minimum of five locations as 

close as possible to the specific site 

where the site’s receiving antenna is 

located. If there is no receiving antenna 

at the site, choose a minimum of five 

locations as close as possible to a 

reasonable and likely spot for the 

antenna. The locations shall be at least 

three meters apart, enough so that the 

testing is practical. If possible, the first 

testing point should be chosen as the 

center point of a square whose corners 

are the four other locations. Calculate 

the median of the five measurements (in 

units of dBμ) and report it as the 

measurement. 

(iii) Multiple signals— 

(A) If more than one signal is being 

measured (i.e., signals from different 

transmitters), use the same locations to 

measure each signal. 

(B) For establishing eligibility of a 

satellite subscriber to receive distant 

network signals, only stations affiliated 

with the network in question that are 

located in the same Nielsen Designated 

Market Area (DMA) as the test site may 

be considered and tested. 

(2) Measurement procedure. 

Measurements shall be made in 

accordance with good engineering 

practice and in accordance with this 

section of this chapter. At each 

measuring location, the following 

procedure shall be employed: 

(i) Testing equipment. Perform an onsite calibration of the test instrument in 

accordance with the manufacturer’s 

specifications. Tune a calibrated 

instrument to the center of the channel 

being tested. Measure the integrated 

average power over the full 6 megahertz 

bandwidth of the television signal. The 

intermediate frequency of the 

instrument should be set to 100 

kilohertz unless the instrument is 

specifically designed by the 

manufacturer to use an alternative i.f. 

setting. The instrument must be capable 

of integrating over the selected i.f. for 

the 6 megahertz channel bandwidth. 

Take all measurements with a 

horizontally polarized antenna. Use a 

shielded transmission line between the 

testing antenna and the field strength 

meter. Match the antenna impedance to 

the transmission line at all frequencies 

measured, and, if using an un-balanced 

line, employ a suitable balance. Take 

account of the transmission line loss for 

each frequency being measured. 

(ii) Weather. Do not take 

measurements during periods of 

inclement weather, including, but not 

limited to, periods of heavy rainfall, 

snowfall accumulation, high 

windspeed, or any combination thereof. 

(iii) Antenna elevation. When field 

strength is being measured for a onestory building, elevate the testing 

antenna to 6.1 meters (20 feet) above the 

ground. In situations where the field 

strength is being measured for a 

building taller than one-story, elevate 

the testing antenna 9.1 meters (30 feet) 

above the ground. 

(iv) Antenna orientation. Orient the 

testing antenna in the direction which 

maximizes the value of field strength for 

the signal being measured. If more than 

one station’s signal is being measured, 

orient the testing antenna separately for 

each station. 

(3) Written record shall be made and 

shall include at least the following: 

(i) A list of calibrated equipment used 

in the field strength survey, which for 

each instrument specifies the 

manufacturer, type, serial number and 

rated accuracy, and the date of the most 

recent calibration by the manufacturer 

or by a laboratory. Include complete 

details of any instrument not of 

standard manufacture. 

(ii) A detailed description of the 

calibration of the measuring equipment, 

including field strength meters, 

measuring antenna, and connecting 

cable. 

(iii) For each spot at the measuring 

site, all factors which may affect the 

recorded field, such as topography, 

height and types of vegetation, 

buildings, obstacles, weather, and other 

local features. 

(iv) A description of where the cluster 

measurements were made. 

(v) Time and date of the 

measurements and signature of the 

person making the measurements. 

(vi) For each channel being measured, 

a list of the measured value of field 

strength (in units of dBμ after 

adjustment for line loss and antenna 

factor) of the five readings made during 

the cluster measurement process, with 

the median value highlighted. 

[FR Doc. 2010–32694 Filed 12–27–10; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 101029427–0609–02] 

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; Preliminary 

2011 Quota Adjustments; 2011 

Summer Flounder Quota for Delaware 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues final 

specifications for the 2011 summer 

flounder, scup, and black sea bass 

fisheries. This final rule specifies 

allowed harvest limits for both 

commercial and recreational fisheries, 

including commercial scup possession 

limits. This action prohibits Federally 

permitted commercial fishing vessels 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 81499 

from landing summer flounder in 

Delaware in 2011 due to continued 

quota repayment from previous years’ 

overages. 

The actions of this final rule are 

necessary to comply with regulations 

implementing the Summer Flounder, 

Scup, and Black Sea Bass Fishery 

Management Plan (FMP), as well as to 

ensure compliance with the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). 

The intent of this action is to establish 

harvest levels and other management 

measures to ensure that these species 

are not overfished or subject to 

overfishing in 2011. In addition, this 

action implements measures to ensure 

continued rebuilding of the summer 

flounder stock, which remains under a 

Magnuson-Stevens Act rebuilding 

program. 

DATES: Effective January 1, 2011, 

through December 31, 2011. 

ADDRESSES: Copies of the specifications 

document, consisting of Environmental 

Assessment (EA), Initial Regulatory 

Flexibility Analysis (IRFA), and other 

supporting documents used by the 

Summer Flounder, Scup, and Black Sea 

Bass Monitoring Committees and 

Scientific and Statistical Committee 

(SSC) are available from Dr. Christopher 

Moore, Executive Director, Mid-Atlantic 

Fishery Management Council, Suite 201, 

800 North State Street, Dover, DE 19901. 

The specifications document is also 

accessible via the Internet at http:// 

www.nero.noaa.gov. The Final 

Regulatory Flexibility Analysis (FRFA) 

consists of the IRFA, public comments 

and responses contained in this final 

rule, and the summary of impacts and 

alternatives contained in this final rule. 

Copies of the small entity compliance 

guide are available from Patricia A. 

Kurkul, Regional Administrator, 

Northeast Region, National Marine 

Fisheries Service, 55 Great Republic 

Drive, Gloucester, MA 01930–2298. 

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 under the provisions of 

the FMP developed by the Mid-Atlantic 

Fishery Management Council (Council) 

and the Atlantic States Marine Fisheries 

Commission (Commission), in 

consultation with the New England and 

South Atlantic Fishery Management 

Councils. The management units 

specified in the FMP include summer 

flounder (Paralichthys dentatus) in U.S. 

waters of the Atlantic Ocean from the 

southern border of North Carolina (NC) 

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°13.3′ N. lat. (the latitude of Cape 

Hatteras Lighthouse, Buxton, NC) 

northward to the U.S./Canada border. 

The Council prepared the FMP under 

the authority of the MagnusonStevenson Act, 16 U.S.C. 1801 et seq. 

Regulations implementing the FMP 

appear at 50 CFR part 648, subparts A 

(general provisions), G (summer 

flounder), H (scup), and I (black sea 

bass). General regulations governing 

U.S. fisheries also appear at 50 CFR part 

600. States manage summer flounder 

within 3 nautical miles of their coasts, 

under the Commission’s plan for 

summer flounder, scup, and black sea 

bass. The Federal regulations govern 

vessels fishing in the exclusive 

economic zone (EEZ), as well as vessels 

possessing a Federal fisheries permit, 

regardless of where they fish. 

The regulations implementing the 

FMP outline the process for specifying 

the annual catch limits for the summer 

flounder, scup, and black sea bass 

commercial and recreational fisheries, 

as well as other management measures 

(e.g., mesh requirements, minimum fish 

sizes, gear restrictions, possession 

restrictions, and area restrictions) for 

these fisheries. Once the catch limits are 

established, they are divided into quotas 

based on formulas contained in the 

FMP. Detailed background information 

regarding the status of the summer 

flounder, scup, and black sea bass 

stocks and the development of the 2011 

specifications for these fisheries was 

provided in the proposed specifications 

(75 FR 70192; November 17, 2010). That 

information is not repeated here. 

NMFS will establish the 2011 

recreational management measures (i.e., 

minimum fish size, possession limits, 

and fishing seasons) for summer 

flounder, scup, and black sea bass by 

publishing proposed and final rules in 

the Federal Register at a later date, after 

the Council concludes its deliberations 

and submits its recommendations as 

specified in the FMP. 

Changes From the Proposed to Final 

Specifications Rule 

The FMP provides that up to 3 

percent of landing levels may be set 

aside for research. The proposed rule 

proposed the maximum amounts (3 

percent) of the Total Allowable 

Landings (TALs) be set aside for 

summer flounder (884,400 lb (401 mt)), 

scup (600,000 lb (272 mt)) and black sea 

bass (108,000 lb (49 mt)); however, the 

full 3 percent was not awarded for 

either summer flounder or scup in the 

final grant awards for the 2011 RSA 

program. Only 521,441 lb (237 mt) of 

summer flounder and 396,500 lb (180 

mt) of scup were awarded as 2011 RSA. 

Thus, this rule increases slightly the 

commercial quotas and recreational 

harvest limits for both summer flounder 

and scup to account for the final RSA 

amounts. No changes occurred to the 

black sea bass specifications as the 3 

percent was fully utilized by the 2011 

grant awards process. No other changes 

occurred from the proposed to final 

specifications rule. 

2011 Specifications 

This final rule implements the 

following specifications: 

Summer Flounder: A TAL of 29.48 

million lb (13,372 mt), including RSA of 

521,441 lb (237 mt); a commercial quota 

of 17,375,135 lb (7,881 mt); and a 

recreational harvest limit of 11,583,424 

lb (5,254 mt). 

Scup: A Total Allowable Catch (TAC) 

of 24.1 million lb (10,932 mt); a 20.0 

million lb TAL (9,072 mt), including 

RSA of 396,500 lb (180 mt); a 

commercial quota of 15,600,000 lb 

(7,076 mt); and a recreational harvest 

limit of 4,312,770 lb (1,956 mt). NMFS 

acknowledges that the Council, at its 

December 15, 2010, meeting, voted to 

recommend an increase to the 2011 

scup TAC, TAL, commercial quota, and 

recreational harvest limit. This 

recommendation is still under 

development and consideration and will 

be addressed through separate 

rulemaking, if needed. 

Black Sea Bass: A TAL of 3,600,000 

lb (1,633 mt), including RSA of 108,000 

lb (49 mt); a commercial quota of 

1,711,080 lb (776 mt); and a recreational 

harvest limit of 1,780,920 lb (808 mt). 

Additional detail for each species’ 

specifications is provided, as follows. 

Summer Flounder 

Summer flounder remain under a 

stock rebuilding program and must 

achieve the rebuilding biomass target 

(i.e., BMSY (Maximum Sustainable Yield)) by 

January 1, 2013. Analysis conducted by 

the Southern Demersal Working Group 

(SDWG) indicates that the 2011 summer 

flounder TAL implemented by this rule 

is projected to provide the necessary 

stock growth to achieve the rebuilding 

objective within the specified time 

frame. This TAL also satisfies a 2000 

Federal Court Order (Natural Resources 

Defense Council v. Daley, Civil No. 1:99 

CV 00221 (JLG)) which requires the 

annual summer flounder TAL to have at 

least a 50-percent probability of success. 


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81500 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

This TAL has a 50-percent probability of 

constraining fishing mortality below the 

management target of F40 percent = 0.255 

and a 98-percent probability of 

constraining fishing mortality below the 

overfishing threshold of FMSY proxy = 

0.310. 

Consistent with the revised quota 

setting procedures for the FMP (67 FR 

6877, February 14, 2002), summer 

flounder overages are determined based 

upon landings for the period January– 

October 2010, plus any previously 

unaccounted for overages from January– 

December 2009. Table 1 summarizes, for 

each State, the commercial summer 

flounder percent shares as outlined in 

§ 600.100(d)(1)(I), the resultant 2011 

commercial quota (both initial and less 

the RSA), the quota overages as 

described above, and the final adjusted 

2011 commercial quota, less the RSA. 

TABLE 1—FINAL STATE-BY-STATE COMMERCIAL SUMMER FLOUNDER ALLOCATIONS FOR 2011 

State FMP percent 

share 

Initial quota (TAL) Initial quota, less RSA 2010 Quota overages 

(through 10/31/10) 

Adjusted quota, less RSA 

lb kg lb kg lb kg lb kg 

ME ......................... 0 .04756 8,412 3,816 8,264 3,748 0 0 8,264 3,749 

NH ......................... 0 .00046 81 37 80 36 0 0 80 36 

MA ......................... 6 .82046 1,206,403 547,224 1,185,064 537,545 28,112 12,752 1,156,952 524,793 

RI ........................... 15 .68298 2,774,006 1,258,289 2,724,939 1,236,032 0 0 2,724,939 1,236,032 

CT .......................... 2 .25708 399,232 181,092 392,171 177,889 0 0 392,171 177,889 

NY ......................... 7 .64699 1,352,600 613,539 1,328,675 602,687 0 0 1,328,675 602,687 

NJ .......................... 16 .72499 2,958,316 1,341,892 2,905,990 1,318,157 0 0 2,905,990 1,318,157 

DE ......................... 0 .01779 3,147 1,427 3,091 1,402 56,259 25,519 ¥53,168 ¥24,117 

MD ......................... 2 .03910 360,676 163,603 354,296 160,709 55,966 25,386 298,330 135,322 

VA .......................... 21 .31676 3,770,509 1,710,303 3,703,816 1,680,051 0 0 3,703,816 1,680,051 

NC ......................... 27 .44584 4,854,620 2,202,056 4,768,752 2,163,106 0 0 4,768,752 2,163,106 

Total ............... 100 .00 17,688,000 8,023,278 17,375,135 7,881,362 140,337 63,657 17,287,969 7,841,823 

Notes: 2010 quota overage is determined through comparison of landings for January through October 2010, plus any landings in 2009 in excess of the 2009 

quota (that were not previously addressed in the 2010 specifications) for each State. For Delaware, this includes continued repayment of overharvest from previous 

years. Total quota is the sum for all States with an allocation. A State with a negative number has a 2011 allocation of zero (0). Kilograms are as converted from 

pounds and may not necessarily add due to rounding. 

Delaware Summer Flounder Closure 

Table 1 indicates that, for Delaware, 

the amount of overharvest from 

previous years is greater than the 

amount of commercial quota allocated 

to Delaware for 2011. As a result, there 

is no quota available for 2011 in 

Delaware. The regulations at § 648.4(b) 

provide that Federal permit holders, as 

a condition of their permit, must not 

land summer flounder in any State that 

the Administrator, Northeast Region, 

NMFS, has determined no longer has 

commercial quota available for harvest. 

Therefore, effective January 1, 2011, 

landings of summer flounder in 

Delaware by vessels holding commercial 

Federal summer flounder permits are 

prohibited for the 2011 calendar year, 

unless additional quota becomes 

available through a quota transfer and is 

announced in the Federal Register. 

Federally permitted dealers are advised 

that they may not purchase summer 

flounder from Federally permitted 

vessels that land in Delaware for the 

2011 calendar year, unless additional 

quota becomes available through a 

transfer, as mentioned above. 

Scup 

As previously noted in the preamble 

of this rule, the Council voted to 

recommend an increase to the 2011 

scup TAC, TAL, commercial quota, and 

recreational harvest limit during their 

December 15, 2010, meeting. This 

recommendation is still under 

development and consideration and will 

be addressed through subsequent 

rulemaking, as needed. The 24.1 million 

lb (10,932 mt) 2011 TAC is divided into 

commercial (78 percent) and 

recreational (22 percent) allocations, in 

accordance with the FMP; the respective 

discard estimates are then subtracted to 

yield the preliminary TAL of 20.0 

million lb (9,072 mt). After deducting 

396,500 lb (180 mt) from the 

preliminary TAL for 2011 RSA, the 

commercial quota is reduced to 15.6 

million lb (7,076 mt), with a recreational 

harvest limit of 4.3 million lb (1,956 

mt). 

The commercial TAC, discards, and 

TAL (commercial quota) are 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 recreational harvest 

limit is allocated on a coastwide basis. 

Consistent with the revised quota 

setting procedures established for the 

FMP (67 FR 6877, February 14, 2002), 

scup overages are determined based 

upon landings for the Winter I and 

Summer 2010 periods, plus any 

previously unaccounted for landings 

from the 2009 Winter II period. There 

were no preliminary overages of the 

2010 Winter I or Summer Period quotas 

or previously unaccounted for overages 

of any 2009 quota periods; therefore, no 

adjustment to the 2011 scup 

specifications is required in this final 

rule. Any overage of the 2010 Winter II 

period will be addressed in July 2011, 

prior to the start of the 2011 Winter II 

fishery. 

Per the quota accounting procedures 

in the FMP, after June 30, 2011, NMFS 

will compile all available landings data 

for the 2010 Winter II quota period and 

compare the landings to the 2010 

Winter II quota period allocation, 

inclusive of any transfer from the 2010 

Winter I quota period. Any overages 

will be determined, and deductions, if 

needed, will be made to the Winter II 

2011 allocation and published in the 

Federal Register. Table 2 contains the 

quota period allocations for the 2011 

commercial scup fishery. 


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TABLE 2—INITIAL

COMMERCIAL

SCUP

QUOTA

ALLOCATIONS FOR 2011 BY

QUOTA

PERIOD

Quota period Percent share 

Total allowable catch Estimated discards Initial quota Initial quota less overages (through 10/31/ 

2009) 

Adjusted quota less overages and RSA Federal possession limits (per trip) 

lb mt lb mt lb mt 

lb mt lb mt lb kg 

Winter I ................................................. 45 .11 8,479,778 3,846 1,442,618 645 7,037,160 3,192 N/A N/A 6,897,648 3,129 30,000 13,608 Summer ................................................ 38 .95 7,321,821 3,321 1,245,621 565 6,076,200 2,756 N/A N/A 5,955,738 2,701 N/A N/A Winter II ................................................ 15 .94 2,996,401 1,359 509,761 231 2,486,640 1,128 N/A N/A 2,437,342 1,106 2,000 907 

Total ............................................... 100 .0 18,798,000 8,527 3,198,000 1,451 15,600,000 7,076 N/A N/A 15,290,730 6,936 N/A N/A 

Notes: The Winter I possession limit will drop to 1,000 lb (454 kg) upon attainment of 80 percent of that period’s allocation. The Winter II possession limit may be adjusted (in association with a transfer of unused 

Winter I quota to the Winter II period) via notification in the Federal Register. 

Metric tons are as converted from pounds and may not necessarily add due to rounding. N/A = Not applicable. 


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81502 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

Consistent with the unused Winter I 

commercial scup quota rollover 

provisions at § 648.120(a)(3), this final 

rule maintains the Winter II possession 

limit-to-rollover amount ratios that have 

been in place since the 2007 fishing 

year, as shown in Table 3. The Winter 

II possession limit will increase by 

1,500 lb (680 kg) for each 500,000 lb 

(227 mt) of unused Winter I period 

quota transferred, up to a maximum 

possession limit of 8,000 lb (3,629 kg). 

TABLE 3—POTENTIAL INCREASE IN WINTER II POSSESSION LIMITS BASED ON THE AMOUNT OF 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 

The FMP specifies that the annual 

TAL is allocated 49 percent to the 

commercial sector and 51 percent to the 

recreational sector. After deducting 

108,000 lb (49 mt) of RSA for the three 

selected research projects, the TAL is 

allocated to the commercial sector as a 

1.76 million lb (798 mt) commercial 

quota and to the recreational sector as 

a 1.84 million lb (835 mt) recreational 

harvest limit. 

Consistent with the revised quota 

setting procedures for the FMP, black 

sea bass overages are determined based 

upon landings for the period JanuarySeptember 2010, plus any previously 

unaccounted for landings from JanuaryDecember 2009. Landings exceeded the 

quota by 33,434 lb (1.5 mt) during the 

2009 black sea bass commercial fishery. 

However, because 2010 black sea bass 

commercial landings to date remain 

substantially below the published 2010 

quota, no adjustment to the 2011 

commercial quota appears necessary at 

this time to account for the overage in 

2009. If 2010 landings remain below the 

difference between the 2010 quota and 

the 2009 overage, no adjustment to the 

2012 black sea bass quota would be 

necessary. If landings exceed the 2010 

quota when the complete 2010 fishing 

year landings are examined next year, 

NMFS will adjust the 2012 commercial 

quota, accordingly. 

Comments and Responses 

NMFS received four comments during 

the 15-day comment period for the 

November 17, 2010, proposed rule. One 

comment from the State of Connecticut 

supported all of the proposed 

specification measures. Two comments 

from recreational fishing groups 

supported the summer flounder and 

scup proposed measures but opposed 

the black sea bass specifications. Some 

of the issues raised by the commenters 

cannot be addressed through the 

Council’s specification process and this 

final rule. Specifically, some 

commenters raised issues regarding 

recreational fishery issues that will be 

addressed through the annual 

recreational management measures 

rulemaking process that began with the 

Council’s December 15, 2010, meeting. 

In the spring of 2011, NMFS will 

conduct notice-and-comment 

rulemaking to implement recreational 

management measures for these three 

species. In addition, some comments 

focused on the FMP allocation of scup 

between the recreational and 

commercial sectors and between scup 

commercial quota periods. The 

allocations are specified in the FMP and 

cannot be modified through the 

specification process; such a change 

would require either a Council-initiated 

FMP framework adjustment or 

amendment. The remaining comments 

applicable to the 2011 specifications 

and RSA projects raised the same or 

similar issues; therefore, the significant 

issues and concerns are summarized 

and responded to here. 

Comment 1: Two comments stated 

that the proposed 2011 catch levels for 

scup would represent a considerable 

departure from optimum yield (OY) for 

the stock. The comments recognize that 

the scup stock is fully rebuilt and assert 

that the 2011 catch levels are overly 

precautionary. 

Response: As was stated in response 

to a similar comment submitted for the 

2010 specifications, NMFS continues to 

interpret the requirement to achieve OY 

on a continual basis as producing the 

long-term series of catches such that the 

average catch is equal to OY, overfishing 

is prevented, and long-term average 

biomass is near or above BMSY. As such, 

National Standard 1, which directs 

fisheries to be managed for OY, does not 

contemplate that the OY will 

necessarily be achieved in a single year 

given the natural fluctuation of fish 

stocks in response to environmental 

conditions. 

NMFS acknowledges that the 2011 

catch level recommendation for scup, as 

implemented in this final rule, is 

conservative relative to the BMSY values 

for the stocks. Indications from the stock 

assessment do indicate that the biomass 

is well above BMSY and the stock was 

declared rebuilt in 2009; however, the 

SSC provided a clear rationale for its 

2011 ABC recommendation to the 

Council, identifying several specific 

sources of uncertainty associated with 

the stock assessment and citing 

concerns about increasing catch levels 

rapidly to the MSY level before the 

recently new stock assessment first used 

for the 2010 fishing year has been 

further evaluated relative to fishery 

performance. The approach taken by the 

SSC and Council in recommending the 

2011 scup specifications to NMFS for 

implementation through this final rule 

is wholly consistent with the National 

Standard 1 guidelines (74 FR 3178; 

January 16, 2009), which contemplate 

reducing catch levels from OY in 

situations where the uncertainties 

pertaining to the fishery necessitate so 

doing. As the level of uncertainty 

associated with the scup stock 

assessment decreases, either through 

improvement in the data, assessment 

methods, or through validating 

assessment-related output and estimates 

through the fishery dependent data and 

fishery performance, the SSC should be 

able to utilize a less conservative 

approach in recommending ABC if the 

stock status remains robust, thereby 

moving landing levels to near or at 

MSY. 


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Comment 2: Two comments opposed 

the black sea bass TAC of 4.5 million lb 

(2,041 mt) and TAL of 3.6 million lb 

(1,633 mt). The comments state that the 

black sea bass stock is rebuilt, not 

overfished, and not experiencing 

overfishing and that the SSC’s selection 

of a constant catch strategy utilizes 

inappropriate years of very low harvest 

as the foundation of the constant catch 

starting point. The commenters request 

that NMFS implement a TAC of 5.86 

million lb (2,658 mt) and a 

corresponding TAL of 4.96 million lb 

(2,250 mt), based on the mean TAL from 

the years 2002–2009. 

Response: NMFS is implementing, 

through this final rule, the SSC and 

Council recommended 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 fishery. The SSC has indicated 

that black sea bass biomass remained 

stable or increased with a TAC in the 4– 

4.5 million lb range (1,814–2,041 mt). 

Furthermore, the SSC identified several 

sources of uncertainty associated with 

determining the overfishing limit (OFL) 

and ABC for the black sea bass stock, 

and deems the 2011 ABC 

recommendation provided and 

implemented through this rule as the 

basis for deriving the 2011 TAC and 

TAL as consistent with the best 

available scientific information. 

Specifically, the ABC and associated 

TAC/TAL implemented through this 

rule has been recommended by the SSC 

as the level necessary to ensure 

scientific uncertainty is mitigated in 

2011 so that the black sea bass stock 

will have a low likelihood of being 

subject to overfishing. The request 

submitted a comment on the proposed 

rule lacks any sufficient explanation of 

how or why the SSC-recommended ABC 

is inconsistent with the best available 

scientific information. It offers only an 

alternative range of years upon which to 

base an ABC without any technical 

explanation of how this value affects the 

stock or prevents overfishing. Instead, 

the commenters cite, without any 

specific justification data, a potential 

negative socio-economic impact of the 

4.5 million lb (2,041 mt) ABC/TAC on 

recreational fishermen. While a higher 

catch level could potentially reduce 

socio-economic impacts as indicated in 

the Council’s economic impact analyses, 

such levels were considered and 

rejected by both the Council and NMFS 

as they would be inconsistent with the 

goals and objectives of the FMP, the 

Magnuson-Stevens Act, and National 

Standard 2 as a higher ABC/TAC would 

exceed the recommendation of the SSC 

(see FRFA for additional impacts 

discussion). Based on these points, 

NMFS cannot disapprove the Council 

and SSC-recommended ABC and 

implement a higher catch level, as 

requested by the two commenters. 

Comment 3: Individuals representing 

various recreational fishing interest 

jointly submitted a comment letter 

opposing the proposal to set aside 

summer flounder, scup, and black sea 

bass TAL in support of the RSA 

program. This comment stemmed from 

their belief that the RSA program is 

funding research that should be funded 

by NMFS. They were particularly 

concerned by the funding of a nearshore 

trawl survey by the RSA program. In 

addition, expressed concern that the 

project selection process is not 

transparent and does not allow for 

public input. 

Response: For the 2011 fishing year, 

the Council chose to reserve up to 3 

percent of the summer flounder, scup, 

and black sea bass TAL for the 2011 

Mid-Atlantic RSA Program. Although 

projects are ultimately selected by the 

Science and Research Director of the 

Northeast Fisheries Science Center, 

projects must address research priorities 

that are identified by the Council. The 

Council receives public input on the 

RSA research priorities through RSA 

Committee and Council meetings. The 

Council’s RSA research priorities for 

2011 include resource assessment and 

monitoring work, including fishery 

independent surveys for all MidAtlantic species, especially in the near 

shore zone (as provided by the 

NEAMAP survey). As such, funding 

work as described under the proposed 

rule is consistent with the Council’s 

intent for the Mid-Atlantic RSA 

program. 

In response to the comment that the 

selection process lacks transparency, the 

proposal solicitation announcement 

(Federal Funding Opportunity NOAA– 

NMFS–NEFSC–2011–2002247) outlines 

the process that NMFS must follow 

prior to making any award. This process 

ensures successful proposals have high 

technical merit and management 

relevance. As such, at least three 

technical reviewers evaluate each 

proposal from a scientific perspective, 

and NMFS convenes a meeting with the 

RSA Committee to review all of the 

proposals. This process ensures that 

qualified and relevant projects are 

selected in a timely manner and in 

compliance with the confidentiality 

rules and regulations established by 

NOAA Grants. 

Therefore, under the 2011 MidAtlantic RSA Program, NMFS will 

implement the Council’s decision to setaside summer flounder, scup and black 

sea bass TAL to support projects that 

address the Council’s RSA research 

priorities. 

Classification 

The Administrator, Northeast Region, 

NMFS, determined that this final rule is 

necessary for the conservation and 

management of the summer flounder, 

scup, and black sea bass fisheries and 

that it is consistent with the MagnusonStevens Act and other applicable laws. 

The Assistant Administrator for 

Fisheries, NOAA, finds good cause 

under 5 U.S.C. 553(d)(3) to waive the 

30-day delayed effectiveness period for 

this rule, to ensure that the final 

specifications are in place on January 1, 

2011. This action establishes 

specifications (i.e., annual quotas) for 

the summer flounder, scup, and black 

sea bass fisheries, and possession limits 

for the commercial scup fishery. 

Preparation of the proposed rule was 

dependent on the submission of the EA/ 

RIR/IRFA in support of the 

specifications that is developed by the 

Council. This document was received 

by NMFS in mid-September 2010. 

Documentation in support of the 

Council’s recommended specifications 

is required for NMFS to provide the 

public with information from the 

environmental and economic analyses 

as required in rulemaking. The 

proposed rule published on November 

17, 2010, with a comment period ending 

December 2, 2010. Publication of the 

adjusted summer flounder quota at the 

start of the fishing year that begins 

January 1, 2011, is required by the order 

of Judge Robert Doumar in North 

Carolina Fisheries Association v. Daley. 

If the 30-day delay in effectiveness 

were not waived, the lack of effective 

quota specifications on January 1, 2011, 

would present significant confusion to 

the complex cooperative management 

regime governing these fisheries. The 

summer flounder, scup, and black sea 

bass fisheries are all expected, based on 

historic participation and harvest 

patterns, to be very active at the start of 

the fishing season in 2011. Individual 

States would be unable to set 

commercial possession and/or trip 

limits, which apportion the catch over 

the entirety of the calendar year. NMFS 

would be unable to control harvest in 

any way, as there would be no quotas 

in place for any of the three species 

until the regulations are effective. NMFS 

would be unable to control harvest or 

close the fishery should landings exceed 

the quotas. In addition, the Delaware 

summer flounder fishery would be open 

for fishing, but in a negative quota 

situation. All of these factors would 

result in a race for fish wherein 


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81504 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

uncontrolled landings could occur. 

Disproportionately large harvest 

occurring within the first weeks of 2011 

could have distributional effects on 

other quota periods, and would 

disadvantage some gear sectors or 

owners and operators of smaller vessels 

that typically fish later in the fishing 

season. There is no historic precedent 

by which to gauge the magnitude of 

harvest that might occur should quotas 

for these three species not be in place 

during the first weeks of 2011. It is 

reasonable to conclude that the 

commercial fishing fleet possesses 

sufficient capacity to exceed the 

established quotas for these three 

species before the regulations would 

become effective, should quotas not be 

in place on January 1, 2011. Should this 

occur, the fishing mortality objectives 

for all three species and the summer 

flounder rebuilding plan could be 

compromised. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866 because this 

action contains no implementing 

regulations. 

This final rule does not duplicate, 

conflict, or overlap with any existing 

Federal rules. 

A FRFA was prepared pursuant to 5 

U.S.C. 604(a), and incorporates the 

IRFA, a summary of the significant 

issues raised by the public comments in 

response to the IRFA, NMFS’s responses 

to those comments, and a summary of 

the analyses completed to support the 

action. A copy of the EA/RIR/IRFA is 

available from the Council (see 

ADDRESSES). 

The preamble to the proposed rule 

included a detailed summary of the 

analyses contained in the IRFA, and that 

discussion is not repeated here. 

Final Regulatory Flexibility Analysis 

Statement of Objective and Need 

A description of the reasons why this 

action is being taken, and the objectives 

of and legal basis for this final rule, is 

contained in the preambles to the 

proposed rule and this final rule and is 

not repeated here. 

Summary of Significant Issues Raised in 

Public Comments 

No changes to the proposed rule were 

required to be made as a result of public 

comments. None of the comments 

received raised specific issues regarding 

the economic analyses summarized in 

the IRFA or the economic impacts of the 

rule more generally. For a summary of 

the comments received, and the 

responses thereto, refer to the 

‘‘Comments and Responses’’ section of 

this preamble. 

Description and Estimate of Number of 

Small Entities To Which the Rule Will 

Apply 

The categories of small entities likely 

to be affected by this action include 

commercial and charter/party vessel 

owners holding an active Federal 

commercial or charter/party permit for 

summer flounder, scup, or black sea 

bass, as well as owners of vessels that 

fish for any of these species in State 

waters. The Council estimates that the 

proposed 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. 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

No additional reporting, 

recordkeeping, or other compliance 

requirements are included in this final 

rule. 

Description of the Steps Taken To 

Minimize Economic Impact on Small 

Entities 

Specification of commercial quotas 

and possession limits is constrained by 

the conservation objectives set forth in 

the FMP and implemented at 50 CFR 

part 648 under the authority of the 

Magnuson-Stevens Act. Economic 

impacts of changes in year-to-year quota 

specifications may be offset by 

adjustments to such measures as 

commercial fish sizes, changes to mesh 

sizes, gear restrictions, or possession 

and trip limits that may increase 

efficiency or value of the fishery. For 

2011, no such adjustments were 

recommended by the Council; therefore, 

this final rule contains no such 

measures. Therefore, the economic 

impact analysis of the action is 

evaluated solely on the different levels 

of quota specified in the alternatives. 

The ability of NMFS to minimize 

economic impacts for this action is 

constrained to approving quota levels 

that provide the maximum availability 

of fish while still ensuring that the 

required objectives and directives of the 

FMP, its implementing regulations, and 

the Magnuson-Stevens Act are met. In 

particular, the Council’s SSC has made 

recommendations for the 2011 ABC 

level for all three stocks. NMFS 

considers this recommendation to be 

consistent with National Standard 2. 

Establishment of catch levels higher 

than the SSC ABC recommendations 

would require substantial, compelling 

argument and documentation that the 

recommendations were not, in fact, 

based on the best available scientific 

information. NMFS-approved measures 

for the summer flounder fishery must 

also ensure that the statutory 

requirements of the stock rebuilding 

program are met by the January 1, 2013, 

rebuilding deadline. 

The economic analysis for the 2011 

specification assessed the impacts for 

quota alternatives that achieve the 

aforementioned objectives. The no 

action alternative, wherein no quotas 

are established for 2011, was excluded 

from analysis because it is not 

consistent with the goals and objectives 

of the FMP and the Magnuson-Stevens 

Act. Implementation of the no action 

alternative in 2011 would substantially 

complicate the approved management 

programs for these three species. NMFS 

is required under the FMP’s 

implementing regulations to specify and 

implement a TAL (and TAC for scup) 

for these fisheries on an annual basis. 

The no action alternative would result 

in no fishing limits for 2011, and could 

result in overfishing of the resources 

and substantially compromise the 

mortality and/or stock rebuilding 

objectives for each species. 

Furthermore, Alternative 2 from the 

Council’s analysis contains the most 

restrictive TAL options (i.e., the lowest 

catch 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 this 

alternative would achieve the required 

objectives for all three species, it carries 

the highest potential negative impact on 

small entities in the form of foregone 

fishing opportunity. Alternative 2 was 

not preferred by the Council or NMFS 

because other alternatives considered 

have lower impacts on small entities 

while achieving the stated objectives of 

the 2011 specification process. 

Alternative 3 (least restrictive quotas; 

highest catch levels—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)) would 

produce the smallest impact on small 

entities. For all three species, the 

respective quotas under Alternative 3 

are inconsistent with the SSC’s catch 

level recommendations. Because the 

respective Alternative 3 measures 

would establish annual fishing limits 

that exceed the fishing level 

recommendations of the Council’s SSC, 

they are inconsistent with the 

Magnuson-Stevens Act requirements 

and cannot be implemented for 2011, 


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Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 81505 

despite having the lowest associated 

impact on small entities. 

Through this final rule, NMFS 

implements the summer flounder, scup, 

and black sea bass TALs contained in 

Alternative 1 (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)), the 

Council’s preferred alternatives, which 

consist of the quota alternatives that 

pair the lowest economic impacts to 

small entities and meet the required 

objectives of the FMP and the 

Magnuson-Stevens Act. Relative to 

2010, the 2011 commercial quotas and 

recreational harvest measures in this 

action would result in the following 

TAL changes for the commercial and 

recreational sectors: 

(1) A 33.2-percent increase for 

summer flounder; 

(2) A 41.7-percent increase for scup; 

and 

(3) A 2.7-percent reduction for black 

sea bass. 

The respective TALs contained in 

Alternative 1 for all three species were 

selected because they satisfy NMFS’s 

obligation to implement specifications 

that are consistent with the goals, 

objectives, and requirements of the 

FMP, its implementing regulations, and 

the Magnuson-Stevens Act. The F rates 

associated with the TALs for all three 

species all have very low likelihoods of 

causing overfishing to occur in 2011. 

TAL Alternative 1 for summer flounder 

is also projected to provide the 

necessary continued stock rebuilding to 

achieve the SSBMSY by the rebuilding 

period ending date of January 1, 2013. 

The revenue decreases associated 

with allocating a portion of available 

catch to the RSA program are expected 

to be minimal, and are expected to yield 

important benefits associated with 

improved fisheries data. It should also 

be noted that fish harvested under the 

RSA program can be sold, and the 

profits used to offset the costs of 

research. As such, total gross revenues 

to the industry are not expected to 

decrease substantially, if at all, as a 

result of this final rule authorizing RSA 

for 2011. 

Small Entity Compliance Guide 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity compliance 

guides.’’ The agency shall explain the 

actions a small entity is required to take 

to comply with a rule or group of rules. 

As part of this rulemaking process, a 

small entity compliance guide will be 

sent to all holders of Federal permits 

issued for the summer flounder, scup, 

and black sea bass fisheries. In addition, 

copies of this final rule and guide (i.e., 

permit holder letter) are available from 

NMFS (see ADDRESSES) and at the 

following Web site: http:// 

www.nero.noaa.gov. 

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

Dated: December 21, 2010. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2010–32656 Filed 12–27–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 101116568–0608–01] 

RIN 0648–BA42 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; Tilefish 

Fishery 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Interim final rule, request for 

comments. 

SUMMARY: NMFS issues this interim 

final rule to amend the cost recovery 

regulations implementing the Tilefish 

Fishery Management Plan (FMP) to 

require the first year cost-recovery fee 

percentage to be calculated based on the 

best estimate of the actual costs 

associated with the management, data 

collection and analysis, and 

enforcement of the individual fishing 

quota (IFQ) allocation program (not to 

exceed 3 percent), rather than to be set 

at the statutory maximum 3 percent of 

the ex-vessel value of tilefish landings. 

DATES: This rule is effective December 

28, 2010. Written comments must be 

received no later than 5 p.m. eastern 

standard time, on January 27, 2011. 

ADDRESSES: This document and other 

supporting material are available online 

at http://www.regulations.gov or http:// 

www.nero.nmfs.gov. You may submit 

comments, identified by RIN number 

0648–BA42, by any of the following 

methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal e-Rulemaking portal http:// 

www.regulations.gov. 

• Fax: (978) 281–9135, Attn: 

Christopher Biegel. 

• Mail: Patricia A. Kurkul, Regional 

Administrator, NMFS, Northeast 

Regional Office, 55 Great Republic 

Drive, Gloucester, MA 01930. Mark the 

outside of the envelope: ‘‘Comments on 

Tilefish Cost-Recovery Regulatory 

Amendment.’’ 

Instructions: All comments received 

are 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. Attachments to electronic 

comments will be accepted via 

Microsoft Word, Microsoft Excel, 

WordPerfect, or Adobe PDF file formats 

only. 

FOR FURTHER INFORMATION CONTACT: 

Christopher Biegel, Fishery 

Management Specialist, phone (978) 

281–9112. 

SUPPLEMENTARY INFORMATION: 

Background 

Limited access privilege programs 

(LAPPs) are a management tool 

authorized under section 303A of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) that allow a 

permit holder exclusive harvest of a 

portion of the total allowable catch of a 

fishery, but does not confer any right or 

title to any fish before the fish is 

harvested by the holder. An IFQ is a 

form of LAPP where the harvest permit 

is issued to an individual. Cost-recovery 

for LAPPs is mandated by section 

304(d)(2) of the Magnuson-Stevens Act, 

which states that ‘‘the Secretary * * * 

shall collect a fee to recover the actual 

costs directly related to the 

management, data collection, and 

enforcement of any limited access 

privilege program.’’ 

The tilefish fishery is managed by the 

Mid-Atlantic Fishery Management 

Council (Council) through the Tilefish 

FMP. The final rule implementing 

Amendment 1 to the FMP (74 FR 42580, 

August 24, 2009) established an IFQ 

program which included the required 

cost-recovery provisions. 

Fees are collected to recover the costs 

associated with management, data 


srobinson on DSKHWCL6B1PROD with RULES