20314 Federal Register / Vol. 72, No. 78 / Tuesday April 24, 2007 / Proposed Rules 

References 

A complete list of all references cited 

herein is available upon request from 

the Montana Field Office, U.S. Fish and 

Wildlife Service (see ADDRESSES). 

Author 

The authors of this finding are 

biologists in Region 6 of the U.S. Fish 

and Wildlife Service. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: April 13, 2007. 

H. Dale Hall, 

Director, Fish and Wildlife Service. 

[FR Doc. E7–7484 Filed 4–23–07; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 070409081–7081–01; I.D. 

032907A] 

RIN 0648–AS22 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; Summer 

Flounder, Scup, and Black Sea Bass 

Fishery Management Plan; 

Amendment 14 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations to 

implement Amendment 14 to the 

Summer Flounder, Scup, and Black Sea 

Bass Fishery Management Plan (FMP) 

developed by the Mid-Atlantic Fishery 

Management Council (Council). The 

proposed measures include a plan to 

rebuild the scup stock from an 

overfished condition to the level 

associated with maximum sustainable 

yield, as required by the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). This action also proposes to allow 

the regulations concerning the Gear 

Restricted Areas (GRAs) to be modified 

through framework adjustments to the 

FMP. The intended effect of this change 

would improve the timing of developing 

and implementing modifications to the 

GRAs. 

DATES: Comments must be received by 

5 p.m. local time, on May 24, 2007. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• E-mail: FSBAmendment14Proposed 

Rule@noaa.gov. Include in the subject 

line the following identifier: 

‘‘Comments on Amendment 14 

Proposed Rule (Scup Rebuilding Plan).’’

• Federal e-rulemaking portal: http:/ 

www.regulations.gov 

• Mail: Patricia A. Kurkul, Regional 

Administrator, NMFS, Northeast 

Regional Office, One Blackburn Drive, 

Gloucester, MA 01930. Mark the outside 

of the envelope: ‘‘Comments on 

Amendment 14 Proposed Rule (Scup 

Rebuilding Plan).’’

• Fax: (978) 281–9135 

Copies of Amendment 14 and of the 

draft Environmental Assessment, 

preliminary Regulatory Impact Review, 

and Initial Regulatory Flexibility 

Analysis (EA/RIR/IRFA) are available 

from Daniel T. Furlong, Executive 

Director, Mid-Atlantic Fishery 

Management Council, Room 2115, 

Federal Building, 300 South New Street, 

Dover, DE 19901–6790. The EA/RIR/ 

IRFA is also accessible via the Internet 

at http://www.nero.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Michael P. Ruccio, Fishery Policy 

Analyst, (978) 281–9104. 

SUPPLEMENTARY INFORMATION: On August 

18, 2005, NMFS notified the Council 

that the scup (Stenotomus chrysops) 

stock had been designated as overfished 

and that, within 1 year of that notice, an 

amendment or proposed regulations for 

the scup fishery to end overfishing and 

to rebuild the stock must be prepared in 

accordance with the Magnuson-Stevens 

Act. In response, the Council has 

developed, and submitted for Secretarial 

review, Amendment 14 to propose two 

actions: (1) A 7–year plan to rebuild the 

scup stock from an overfished condition 

to a level associated with maximum 

sustained yield (Bmsy), as required by the 

Magnuson-Stevens Act; and (2) an 

administrative change to the regulations 

on framework adjustments. 

Background 

The scup stock was determined to be 

overfished in 1998 when the 

Sustainable Fisheries Act (SFA) 

amendments to the Magnuson-Stevens 

Act were implemented. The Council 

developed and proposed Amendment 

12 (64 FR 16891, April 7, 1999) to 

rebuild the scup stock in accordance 

with the provisions outlined in the SFA. 

The Council proposed in Amendment 

12 that the management measures in 

place to rebuild the scup fishery, 

established by Amendment 8, were 

adequate under SFA guidelines. NMFS 

disagreed, and the rebuilding plan 

proposed in Amendment 12 was 

disapproved on April 28, 1999. 

Following the disapproval, the 

management measures previously 

implemented by Amendment 8 

remained in place for the scup fishery. 

In years subsequent to the disapproval 

of Amendment 12, the scup stock 

exhibited signs of recovery. The 

Northeast Fisheries Science Center 

(NEFSC) spring survey index 3–year 

average value for 2001–2003 indicated 

that scup spawning stock biomass (SSB) 

had increased to 3.31 kg/tow, above the 

minimum biomass threshold (1/2 Bmsy) 

of 2.77 kg/tow. The scup stock was no 

longer considered overfished, although 

the 35th Stock Assessment Review 

Committee (SARC 35) indicated that the 

status of the stock with respect to 

overfishing could not be evaluated. 

Although the condition of the scup 

stock was improving, the stock had not 

yet been rebuilt, as required by the 

Magnuson-Stevens Act, to the Bmsy

proxy rebuilding target of 5.54 kg/tow. 

In 2005, the NEFSC 3–year SSB index 

value decreased to 0.69 kg/tow, 

indicating that the stock was again 

below the minimum biomass threshold 

(1/2 Bmsy) and considered overfished. 

NMFS formally notified the Council of 

the overfished status of the scup stock, 

thus initiating the Magnuson-Stevens 

Act requirement that the Council 

develop regulations or an amendment to 

the FMP to rebuild the scup stock to the 

Bmsy proxy level. The rebuilding plan 

implemented by such regulations or 

amendment must achieve the rebuilding 

target within 10 years to comply with 

the Magnuson-Stevens Act. In response, 

the Council has developed, and 

submitted for Secretarial review, 

Amendment 14. 

Proposed Scup Rebuilding Plan 

Under Amendment 14, a constant 

fishing mortality rate (F) of 0.10 would 

be applied each year during a 7–year 

rebuilding time period. Under this 

approach, the NEFSC 3–year SSB index 

value for the rebuilding period ending 

December 31, 2014, is projected to be 

5.96 kg/tow, approximately 8 percent 

above the Bmsy proxy rebuilding target 

(5.54 kg/tow). 

Applying a constant F=0.10 for 7 

years is projected to achieve the 

required stock rebuilding to comply 

with the Magunuson-Stevens Act; 

however, because scup is a relatively 

data poor stock and uncertainty exists 

around estimates of fishing mortality, 

stock size, and discards, Amendment 14 

contains additional criteria to be 


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applied to the rebuilding program, as 

follows: 

1. As improvements to the available 

data occur over the 7–year rebuilding 

period, the rebuilding trajectory may 

change. Therefore, to ensure stock 

rebuilding, a periodic review will be 

conducted by the Council’s scientific 

advisors to re-evaluate the F necessary 

to rebuild the stock. If the Council’s 

scientific advisors determine the stock 

cannot be rebuilt within the time 

remaining in the initial 7–year time 

frame under an F=0.10, then the Council 

will recommend measures to rebuild the 

stock as soon as possible after the 7 

years, but not to exceed the 10–year 

time frame specified in the MagnusonStevens Act for rebuilding periods. 

The periodicity of such a review is 

not specified in Amendment 14; 

however, it is expected that such 

reviews will be at the discretion of the 

Council and will occur as new data are 

made available, as early in the 

rebuilding period as possible, so that 

changes to the F rate, as needed, may be 

made. 

2. The scup biological reference 

points (stock status determination 

criteria) would be reviewed after the 

Fishery Survey Vessel (FSV) Henry B. 

Bigelow has completed 2 full years of 

service. 

3. If a scup stock assessment that 

results in a change to the biological 

reference points is completed before the 

end of the 7–year rebuilding time 

period, the Council may reconsider the 

rebuilding targets. 

The additional criteria for the 

rebuilding program contained in 

Amendment 14 are designed to allow 

for some degree of flexibility within the 

specified rebuilding period, while still 

satisfying the requirements of the 

Magnuson-Stevens Act, given the 

considerable scientific uncertainty 

regarding the status of the scup stock. 

The intent of the additional criteria is to 

ensure that certain parameters of the 

rebuilding program can be revisited in 

advance of the end of the rebuilding 

time frame. This may help mitigate the 

need for severely restrictive measures in 

the rebuilding plan’s final years, should 

scientific advice or stock status 

information change during the course of 

the 7–year rebuilding plan and/or the 

scup stock fail to respond to the 

rebuilding efforts as anticipated and fall 

behind the rebuilding schedule. 

Amendment 14 has a target 

implementation date of January 1, 2008, 

for the start of the rebuilding program. 

A final rule for Amendment 14 is 

anticipated to be published in the 

Federal Register prior to August 2007, 

with delayed effectiveness until January 

1, 2008, so that the 2008 scup 

specifications would be set consistent 

with the proposed rebuilding program. 

Proposed GRA Modification Process 

GRAs were first implemented on May 

24, 2000 (65 FR 33486), in conjunction 

with the annual specifications for the 

summer flounder, scup, and black sea 

bass fisheries. The intent of the GRAs 

has been to reduce discards of scup in 

small-mesh fisheries, primarily for 

Loligo squid, black sea bass, and silver 

hake. Because of the manner in which 

they were initially implemented, the 

GRAs could only be modified through 

the annual specification process or 

through an amendment to the FMP. 

Amendment 14 proposes an 

administrative change to add the GRAs 

to the list of management measures that 

can be changed through a framework 

adjustment to the FMP. As such, the 

Council would develop and analyze 

changes to the GRAs over the span of at 

least two Council meetings before 

making a recommendation to NMFS. 

This change is intended to allow for 

improved timing of developing and 

implementing proposed modifications 

to the GRAs. Amendment 14 proposes 

no specific changes to the existing 

GRAs. 

Notice of Availability (NOA) and Public 

Comment on Amendment 14 

A NOA indicating Amendment 14’s 

availability for public review and 

comment published in the Federal 

Register on April 11, 2007, 72 FR 18193. 

Public comments are being solicited on 

Amendment 14 and its incorporated 

documents through the comment period 

ending June 11, 2007, as stated in the 

NOA. Public comments on this 

proposed rule must be received by the 

end of the comment period on 

Amendment 14, as published in the 

NOA, to be considered in the approval/ 

disapproval of the Amendment 14. All 

comments received by the end of the 

NOA comment period for Amendment 

14, whether specifically directed to the 

amendment or this proposed rule, will 

be considered in the approval/ 

disapproval decision. Comments 

received after the end of the NOA 

comment period will not be considered 

in the approval/disapproval decision on 

Amendment 14, but will be considered 

as comments on this proposed rule. To 

be considered, comments must be 

received by close of business on the last 

day of the comment period; that does 

not mean postmarked or otherwise 

transmitted by that date. 

Classification 

At this time, NMFS has not 

determined that the FMP amendment 

that this proposed rule would 

implement is consistent with the 

national standards of the MagnusonStevens Act and other applicable laws. 

NMFS, in making that determination, 

will take into account the data, views, 

and comments received during the 

comment period. 

A notice of availability of the Draft 

EA/RIR/IRFA, which analyzed the 

impacts of all of the measures under 

consideration in Amendment 14, was 

published on April 11, 2007, (72 FR 

18193). 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

An IRFA was prepared, as required by 

section 603 of the RFA. The IRFA 

describes the economic impact this 

proposed rule, if adopted, would have 

on small entities. A description of the 

reasons why the action is being 

considered, the associated objectives of 

the proposed action, and the legal basis 

for this action are contained in the 

SUMMARY section of the preamble of 

this proposed rule. A summary of the 

analysis follows. A copy of the complete 

IRFA is available from the Council (see 

ADDRESSES). 

This proposed rule does not 

duplicate, overlap, or conflict with any 

relevant Federal rules. 

There are no new reporting or 

recordkeeping requirements contained 

in any of the alternatives considered for 

this action. 

Description of Small Entities to Which 

the Proposed Rule Will Apply 

The proposed action regarding scup 

rebuilding alternatives could affect any 

vessel issued a Federal permit for scup, 

as well as vessels that fish for scup in 

state waters. The GRA alternatives 

proposed are purely administrative in 

nature and, therefore, are not expected 

to impact scup fishery participants in 

state or Federal waters. 

The Small Business Administration 

(SBA) defines a small business in the 

commercial fishing and recreational 

fishing activity as a firm with receipts 

(gross revenues) of up to $4.0 and $6.5 

million, respectively. The proposed 

measures regarding the scup rebuilding 

alternatives could affect any vessel 

holding an active Federal permit for 

scup, as well as vessels that fish for this 

species in state waters. Data from the 

Northeast permit application database 

show that, in 2005, the most recent year 

for which there are complete data, 1,511 

vessels were permitted to take part in 


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the scup fisheries (both commercial and 

charter/party sectors). All vessels that 

would be impacted by this proposed 

rulemaking are considered to be small 

entities; therefore, there would be no 

disproportionate impacts between large 

and small entities. Since all permit 

holders do not actually land scup, the 

more immediate impact of the rule may 

be felt by the 428 vessels that are 

actively participating in this fishery 

(i.e., that landed 1 lb (0.45 kg) or more 

of scup in 2005). 

Description of Alternatives 

The Council proposed seven 

rebuilding plan alternatives and the noaction (i.e., status quo) alternative. Of 

these, two alternatives could be 

expected to have less of an economic 

impact on small entities than the 

proposed action. A summary of these 

alternatives can be found in Table 1, 

and as follows, including the reasons for 

selecting the preferred alternative 

instead of one of the two alternatives 

with a lower economic impact to small 

entities. 

The no-action alternative, designated 

1A, would not implement a rebuilding 

plan or time frame for rebuilding the 

scup stock. The current F target of 

F=0.26 would be maintained, resulting 

in the least restrictive quotas. Under the 

no action alternative (1A), the scup 

stock is not projected to ever achieve the 

rebuilding target; therefore, the status 

quo alternative would not achieve stock 

rebuilding and is therefore contrary to 

the requirements of the MagnusonStevens Act. 

Alternatives 1B through 1E consist of 

rebuilding strategies wherein a specified 

constant F is applied over a 10, 7, 5, or 

4–yr period, respectively. The F rate 

applied under these four alternatives is 

highest (i.e., less restrictive) for 

alternative 1B and decreases (i.e., 

becomes more restrictive) in alternatives 

1C and 1D. The rebuilding program 

proposed by alternative 1B is less 

restrictive than the Council’s preferred 

alternative, 1C. Alternative 1B was not 

selected as the preferred alternative 

because it utilizes the full 10–year 

rebuilding period and does not allow for 

the ongoing rebuilding progress 

performance assessments, as specified 

by the Council, that are available in the 

preferred alternative, 1C. The F rate in 

1E is F=0, which would result in no 

harvest of scup (commercial, 

recreational, or incidental take in other 

fisheries) for the proposed 4–yr period; 

this alternative was considered but 

excluded from detailed analysis as it 

was not considered a reasonable 

solution to the issue. 

Alternatives 1F through 1H proposed 

maintaining a constant harvest level of 

scup over a specified rebuilding period. 

Alternative 1F, the least restrictive 

constant harvest rebuilding alternative, 

was rejected because it would not 

rebuild the stock within the 10–year 

period required under the MagnusonStevens Act. Of the remaining two 

constant harvest alternatives, 1G is less 

restrictive than alternative 1H. Relative 

to the constant F strategies, the constant 

harvest strategies 1D and 1H are 

expected to be less restrictive than 

alternatives 1C and 1G, but more 

restrictive than alternatives 1A and 1B. 

For clarity, the Council has identified 

rebuilding program alternative 1C, with 

the additional criteria outlined in the 

SUPPLEMENTARY INFORMATION in the 

preamble of this proposed rule, as its 

preferred alternative. 

Expected Economic Impacts of 

Alternatives 

The effects of actions were analyzed 

by employing quantitative approaches 

to the extent possible. Where 

quantitative data were not available, 

qualitative analyses were conducted. In 

the current analysis, effects on 

profitability associated with the 

proposed management measures should 

be evaluated by looking at the impact of 

the proposed measures on individual 

vessel costs and revenue. However, in 

the absence of cost data for individual 

vessels engaged in these fisheries, 

changes in gross revenue are used as a 

proxy for profitability. 

Procedurally, the economic effects of 

the quotas under the various rebuilding 

schedules were estimated by assessing 

the changes in potential revenues. This 

was accomplished by multiplying the 

corresponding level of Total Allowable 

Landings (TAL) under each alternative 

by the ex-vessel price forecasted for 

each of the years in an alternative’s 

rebuilding time line. 

Commercial Fishery Impacts 

Aggregate scup landings in 2008, the 

first year of the rebuilding period, 

relative to 2006 are expected to be the 

highest under alternative 1A (an 

increase of 153 percent), followed by 

alternative 1B (an increase of 41 

percent), and alternatives 1C and 1G (an 

increase of 5 percent each). Under 

alternatives 1D and 1H, scup landings 

are expected to decrease (29 percent 

each) in 2008, compared to 2006. 

Commercial quotas are expected to 

increase in each year subsequent to 

2008 from the 2006 baseline value for 

each alternative, except those for 

constant harvest strategies under 


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alternatives 1G and 1H. For alternatives 

1G and 1H, no increase is predicted 

until the rebuilding time frame is 

complete and the stock is rebuilt. 

Assuming that the predicted changes 

in initial annual revenue in 2008 are for 

all active participants in the fishery and 

that they are evenly distributed over all 

active participants in the fishery (the 

428 vessels that landed scup in 2005), 

each business unit could be expected to 

gain an average of $7,114 in gross 

revenues under alternative 1A, and 

$1,914 under alternative 1B, if the entire 

TAL is landed in 2008. Potential losses 

in 2008 of $194 in gross revenue are 

estimated for each scup vessel under 

alternatives 1C and 1G, and $2,621 

under alternatives 1D and 1H. 

If revenue earned from all other 

species is assumed to remain constant, 

21 vessels are projected to incur total 

revenue losses of 5 percent or more in 

2008 under the two most restrictive 

alternatives (1D and 1H). Of these 21 

vessels, 11 are projected to incur 

revenue reductions of 5–9 percent, and 

10 vessels are projected to lose up to 

10–19 percent of their total gross 

revenue. 

Relative to each vessel’s home port 

state as reported on the vessel’s permit 

application, nine of the vessels 

projected to incur revenue losses of 5 

percent or more under alternatives 1D 

and 1H listed New York as their home 

port state, five of these vessels listed 

Massachusetts as their home port state, 

and five listed Rhode Island as their 

home port state. The home port states of 

the remaining two vessels can not be 

disclosed for confidentiality reasons. 

The 21 vessels estimated to incur 

revenue losses of 5 percent or more in 

2008 under the two most restrictive 

alternatives (1D and 1H) list 15 different 

home port locations on their permit 

applications. The only home port 

locations with more than one vessel 

estimated to incur total revenue 

reductions of 5 percent or more are in 

Montauk, NY (five vessels) and Point 

Judith, RI (three vessels). 

Although alternatives 1C, 1D, 1G, and 

1H will likely have a negative shortterm economic impact on some scup 

harvesting businesses, they are expected 

to result in long-term positive impacts 

to the industry as a whole, once the 

scup stock rebuilds. Quotas will 

gradually increase toward the rebuilt 

stock level for constant F strategies and 

are expected to significantly increase 

when rebuilding is achieved for 

constant harvest strategy alternatives. 

Recreational Fishery Impacts 

Recreational landings of scup in 2006 

were projected to be 2.83 million lb 

(1,284 mt). Potential increases in 

landings could be observed in 2008 

under the recreational harvest limits 

projected for alternatives 1A and 1B. 

The 2008 recreational harvest limits 

under alternatives 1C and 1G would be 

approximately equal to the projected 

2006 recreational landings. The 2008 

recreational harvest limits for 

alternatives 1D and 1H are projected to 

be 1.923 million lb (872 mt), a potential 

decrease of approximately 1.0 million lb 

(453 mt) when compared to 2006 levels. 

There is no empirical information 

available to determine how sensitive to 

the proposed changes in scup 

recreational harvest limits affected 

anglers might be. In other words, it is 

not possible to determine how affected 

anglers will respond to the new 

regulations. Scup angler trip taking 

behavior may remain unchanged, or the 

management measures may result in 

anglers taking fewer fishing trips or no 

recreational trips at all if suitable 

alternative target species are 

unavailable. Although the potential 

changes in trip taking behavior cannot 

be quantified, given the marginal 

changes in management measures from 

2006 to those expected for 2008 and the 

fact that the proposed measures do not 

prohibit anglers from engaging in catch 

and release fishing, the demand for 

fishing trips should remain relatively 

unaffected. Nevertheless, to the extent 

that anglers impacted by the proposed 

measures do take fewer trips, economic 

losses may accrue to businesses that 

support marine recreational activities. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: April 17, 2007. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, 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 § 648.127, paragraph (a)(1) is 

revised to read as follows: 

§ 648.127 Framework adjustment to 

management measures. 

(a) * * * 

(1) Adjustment process. The Council 

shall develop and analyze appropriate 

management actions over the span of at 

least two Council meetings. The Council 

must provide the public with advance 

notice of the availability of the 

recommendation(s), appropriate 

justification(s) and economic and 

biological analyses, and the opportunity 

to comment on the proposed 

adjustment(s) at the first meeting and 

prior to and at the second Council 

meeting. The Council’s 

recommendations on adjustments or 

additions to management measures 

must come from one or more of the 

following categories: Minimum fish 

size, maximum fish size, gear 

restrictions, gear restricted areas, gear 

requirements or prohibitions, permitting 

restrictions, recreational possession 

limit, recreational seasons, closed areas, 

commercial seasons, commercial trip 

limits, commercial quota system 

including commercial quota allocation 

procedure and possible quota set asides 

to mitigate bycatch, recreational harvest 

limit, annual specification quota setting 

process, FMP Monitoring Committee 

composition and process, description 

and identification of essential fish 

habitat (and fishing gear management 

measures that impact EFH), description 

and identification of habitat areas of 

particular concern, overfishing 

definition and related thresholds and 

targets, regional gear restrictions, 

regional season restrictions (including 

option to split seasons), restrictions on 

vessel size (LOA and GRT) or shaft 

horsepower, operator permits, any other 

commercial or recreational management 

measures, any other management 

measures currently included in the 

FMP, and set aside quota for scientific 

research. 

* * * * * 

[FR Doc. 07–2016 Filed 4–23–07; 8:45 am] 

BILLING CODE 3510–22–S 


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