[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81498-81505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32656]
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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.
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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
[[Page 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
Magnuson-Stevens 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[deg]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 Magnuson-Stevenson 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.
[[Page 81500]]
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 Sec. 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
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Initial quota (TAL) Initial quota, less RSA 2010 Quota overages Adjusted quota, less RSA
FMP percent -------------------------------------------------------- (through 10/31/10) ---------------------------
State share ----------------------------
lb kg lb kg lb kg lb kg
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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
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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
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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 Sec. 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.
[[Page 81501]]
Table 2--Initial Commercial Scup Quota Allocations for 2011 by Quota Period
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Total allowable catch Estimated discards Initial quota Initial quota less Adjusted quota less Federal possession
--------------------------------------------------------------------------- overages (through 10/ overages and RSA limits (per trip)
Quota period Percent 31/2009) ----------------------------------------------
share lb mt lb mt lb mt ----------------------
lb mt lb mt lb kg
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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
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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
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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.
[[Page 81502]]
Consistent with the unused Winter I commercial scup quota rollover
provisions at Sec. 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
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Initial Winter II possession limit Rollover from Winter I to Winter II Increase in initial Final Winter II
------------------------------------------------------------------------------------------------------------- Winter II possession possession limit
limit after rollover from
---------------------- Winter I to Winter
lb kg lb mt II
lb kg ---------------------
lb kg
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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
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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 January-September 2010, plus any previously unaccounted for
landings from January-December 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.
[[Page 81503]]
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 Mid-Atlantic 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 Mid-Atlantic RSA Program, NMFS will
implement the Council's decision to set-aside 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 Magnuson-Stevens 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
[[Page 81504]]
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,
[[Page 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