[Federal Register Volume 77, Number 78 (Monday, April 23, 2012)]
[Rules and Regulations]
[Pages 24151-24154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9755]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120412408-2408-01]
RIN 0648-XA795

Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; Final 2012 Summer Flounder, Scup, 
and Black Sea Bass Specifications

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.


SUMMARY: NMFS is implementing final specifications, which consist of 
catch levels and management measures, for the 2012 summer flounder, 
scup, and black sea bass fisheries. The specifications are necessary to 
ensure the three species are not overfished or subject to overfishing 
in 2012. This final rule makes no changes to the interim specifications 
implemented on January 1, 2012, which were established using the best 
available scientific information.

DATES: Effective April 23, 2012, through December 31, 2012.

ADDRESSES: Copies of the 2012 specifications document, which includes 
an Environmental Assessment (EA), are available from Daniel S. Morris, 
Acting Northeast Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. This document 
is also accessible via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Moira Kelly, Fishery Policy Analyst, 
(978) 281-9218.

SUPPLEMENTARY INFORMATION: On December 30, 2011 (76 FR 82189), NMFS 
published interim specifications for the summer flounder, scup, and 
black sea bass fisheries, including commercial quotas, recreational 
harvest limits, and, as appropriate, commercial possession limits. 
These interim specifications were effective on January 1, 2012, through 
December 31, 2012. The background and rationale supporting the interim 
specifications can be found in the preamble to the interim final rule 
cited above and are not repeated here.
    As discussed in the interim final rule cited above, on December 14, 
2011, the Mid-Atlantic Fishery Management Council (Council), and its 
Scientific and Statistical Committee (SSC), met to reconsider new stock 
assessment information on scup and summer flounder and to develop 
revised recommendations to NMFS for the 2012 specifications. The 
Council's revised recommendations are consistent with the measures 
implemented by NMFS in the interim final rule, so no changes to the 
interim specifications are necessary to address the Council's action.
    As part of the interim final rule, NMFS solicited comment on the 
interim measures and acknowledged that it may adjust, as needed, the 
final 2012 specifications based on the Council's recommendations and 
public comment on the interim measures. During the 30-day comment 
period on the interim final rule, NMFS received three comments. These 
comments are addressed later in this final rule, but none warrant any 
changes to the interim specifications. Therefore, this final rule makes 
no changes to the measures implemented on January 1, 2012, for the 2012 
fishing year, which remain as follows:

Summer Flounder

    The updated stock assessment overfishing limit (OFL) is 31,588,000 
lb (14,328 mt). The projected 2012 spawning stock biomass (SSB) is 
134,667,008 lb (61,084 mt), above the SSBMSY (where MSY 
means maximum sustainable yield) level of 132,440,000 lb (60,074 mt). 
Thus, the B/BMSY ratio is 1.01. Applying the Council's risk 
policy results in an overfishing risk tolerance (P*) of 0.40, or a 40-
percent risk of overfishing the summer flounder stock. Using this 
information, the resulting acceptable biological catch (ABC) remains 
25,581,054 lb (11,603 mt),
    Consistent with Sec.  648.102(a), for summer flounder, the sum of 

[[Page 24152]]

recreational and commercial sector annual catch limits (ACLs) is equal 
to ABC. ACL is an expression of total catch (i.e., landings and dead 
discarded fish). To derive the ACLs, the sum of the sector-specific 
estimated discards is removed from the ABC to derive the landing 
allowance. The resulting landing allowance is apportioned to the 
commercial and recreational sectors by applying the FMP allocation 
criteria: 60 percent to the commercial fishery and 40 percent to the 
recreational fishery. Using this method ensures that each sector is 
accountable for its respective discards, rather than simply 
apportioning the ABC by the allocation percentages to derive the sector 
ACLs. This means that the derived ACLs are not split exactly at 60/40; 
however, the landing portions of the ACLs do preserve the 60/40 
allocation split, consistent with the FMP. As a result of this 
apportionment, the commercial ACL remains 14,002,000 lb (6,351 mt) and 
the recreational ACL remains 11,579,000 lb (5,252 mt).
    After deducting sector specific discards from the ACLs (459,000 lb 
(208 mt) for the commercial fishery, and 2,550,000 lb (1,157 mt) for 
the recreational fishery), and deducting the approved research set-
aside of 677,128 lb (307 mt), the resulting commercial quota remains 
12,729,724 lb (5,774 mt), and the recreational harvest limit remains 
8,487,149 lb (3,850 mt).
    Table 1 presents the final allocations of summer flounder by state. 
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 2011, plus any previously 
unaccounted for overages from January-December 2010. The interim final 
rule accounted for overages in NY and DE, and no new information is 
incorporated here; therefore, the overages presented below in Table 1 
are the same as those in the interim final rule. The final allocations 
presented in this final rule would be exactly the same as in the 
interim final rule except that two states, NC and VA, requested two 
transfers of commercial quota in the intervening months since the 
interim final rule was published. To account for these transfers, Table 
1 also indicates the total amounts of commercial quota transferred to 
date between NC and VA.\1\

    \1\ For more information on the commercial quota transfers noted 
here, please see the following Federal Register documents: 77 FR 
14481 (March 12, 2012); and 77 FR 19951 (April 3, 2012).

    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 2012. As a result, there is no quota 
available for 2012 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, landings of summer flounder in 
Delaware by vessels holding commercial Federal summer flounder permits 
remain prohibited for the 2012 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 2012 calendar year, unless additional quota becomes 
available through a transfer, as mentioned above.

                                      Table 1--Final State-by-State Commercial Summer Flounder Allocations for 2012
                                                   Initial quota, less RSA     2011 Quota overages      2012 Quota transfers       2011 Final quotas,
                                                 --------------------------    (through 10/31/11)         (through 4/3/12)         accounting for RSA,
                                     FMP Percent                           ----------------------------------------------------  overages, and transfers
               State                    share                                                                                            to date
                                                       lb           kg           lb           kg           lb           kg     -------------------------
                                                                                                                                     lb           kg
ME.................................      0.04756        6,054        2,746            0            0            0            0        6,054        2,746
NH.................................      0.00046           59           27            0            0            0            0           59           27
MA.................................      6.82046      868,226      393,827            0            0            0            0      868,226      393,827
RI.................................     15.68298    1,996,400      905,567            0            0            0            0    1,996,400      905,567
CT.................................      2.25708      287,320      130,328            0            0            0            0      287,320      130,328
NY.................................      7.64699      973,441      441,553       50,736       23,014            0            0      922,705      418,539
NJ.................................     16.72499    2,129,045      965,735            0            0            0            0    2,129,045      965,735
DE.................................      0.01779        2,265        1,027       54,982       24,940            0            0      -52,717      -23,913
MD.................................      2.03910      259,572      117,742            0            0            0            0      259,572      117,742
VA.................................     21.31676    2,713,565    1,230,873            0            0    1,710,359      775,806    4,423,924    2,006,658
NC.................................     27.44584    3,493,779    1,584,778            0            0   -1,710,359     -775,806    1,783,420      808,946
    Total..........................       100.00   12,729,724    5,774,203      105,718       47,954          N/A          N/A   12,676,724    5,750,162
Notes: 2011 quota overage is determined through comparison of landings for January through October 2011, plus any landings in 2010 in excess of the 2010
  quota (that were not previously addressed in the 2011 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 2012 allocation of zero (0).
  Kilograms are as converted from pounds and may not necessarily add due to rounding.


    The OFL for scup, as revised by the October assessment update, is 
50.48 million lb (22,897 mt). The ABC calculated from the revised OFL 
using the SSC's Level 3 control rule and applying the Council's risk 
policy (P* = 0.4) is 40,879,639 lb (18,543 mt). The scup management 
measures at Sec.  648.120(a) specify that ABC is equal to the sum of 
the commercial and recreational sector ACLs. Using the derivation 
methods specified by the Council, with the ABC based on the revised 
OFL, the commercial sector ACL/ACT is 31,887,000 lb (14,464 mt), and 
the recreational sector ACL/ACT is 8,994,000 lb (4,079 mt). After an 
RSA of 571,058 lb (259 mt) is removed, the commercial quota remains 
27,908,575 lb (12,659 mt), and the recreational harvest limit remains 
8,446,367 lb (3,831 mt).
    The scup commercial quota is divided into three commercial fishery 
quota periods. There were no previous commercial overages applicable to 
the 2012 scup commercial quota. The period quotas, after deducting for 
RSA remain: Winter I (January-April)--45.11 percent, or 12.59 million 
lb (5,711 mt); Summer (May-October)--38.95 percent, 10.87 million lb 
(4,931 mt); and Winter II (November-December)--15.94 percent, 4.45 
million lb (2,018 mt). Unused Winter I quota is carried over for use in 
the Winter II period.

[[Page 24153]]

Consistent with the recommendation of the Council, the Winter I 
possession limit remains 50,000 lb (22,680 kg) per trip.

                                                            Table 2--Final Commercial Scup Quota Allocations for 2012 by Quota Period
                                                                            Commercial annual    Estimated discards       Initial quota        Initial     Adjusted quota less       Federal
                                                                               catch limit     --------------------------------------------  quota less     overages and RSA       possession
                                                                         ----------------------                                               overages   ----------------------    limits (per
                         Quota period                            Percent                                                                    (through 10/                              trip)
                                                                  share                             lb         mt         lb         mt       31/2009)                         -----------------
                                                                              lb         mt                                                --------------     lb         mt
                                                                                                                                              lb     mt                            lb       kg
Winter I......................................................     45.11  14,384,226     6,525   1,593,736       723  12,790,489     5,802    N/A    N/A  12,589,558     5,711   50,000   22,680
Summer........................................................     38.95  12,419,987     5,634   1,376,104       624  11,043,883     5,009    N/A    N/A  10,870,390     4,931      N/A      N/A
Winter II.....................................................     15.94   5,082,788     2,306     563,160       255   4,519,628     2,050    N/A    N/A   4,448,627     2,018    2,000      907
    Total.....................................................     100.0  31,887,000    14,464   3,533,000     1,603  28,354,000    12,861    N/A    N/A  27,908,575    12,659      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.

    Consistent with the unused Winter I commercial scup quota rollover 
provisions at Sec.  648.122(d), this 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
-----------------------------------------------------------------------------------------------------   Winter II possession      limit after rollover
                                                                                                                limit            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

    This final rule maintains the Council's recommended measures for 
black sea bass: An ABC of 4.5 million lb (2,041 mt); a commercial ACL 
and ACT of 1,980,000 lb (898 mt); a recreational ACL of 2,520,000 lb 
(1,143 mt); and a recreational ACT of 1,860,000 lb (844 mt) to mitigate 
the potential that the recreational sector ACL will be exceeded in 
2012. Removing discards from the ACTs produces the total landings 
allowed from the 2012 black sea bass fishery. When the RSA of 92,600 lb 
(42 mt) is removed, the remaining available landings remain as a 
recreational harvest limit of 1.32 million lb (598 mt) and a commercial 
quota of 1.71 million lb (774 mt).

Comments and Responses

    As noted above, during the 30-day comment period on the interim 
final rule, NMFS received comment letters from three entities.
    Comment 1: The Connecticut Department of Environmental Protection 
(CT DEP) raised concern about the 2012 scup catch levels; specifically, 
that such a high commercial catch level, paired with high possession 
limits, could flood the commercial scup market, resulting in low value 
for the fish. CT DEP suggested that recruitment may decline in the 
coming years and this would necessitate a reduction in catch that could 
also destabilize the fishery and its markets. CT DEP also raised 
concerns about how commercial discards are quantified and used in stock 
assessments, as well as concerns about the allocation split between the 
commercial and recreational fisheries.
    Response: Although there may be some validity to the concerns 
raised by CT DEP regarding high commercial catch levels and possession 
limits causing the value for scup to decline, as well as a potential 
future decline in recruitment, these concerns are too speculative for 
NMFS to alter the 2012 specifications for scup, which remain consistent 
with the best scientific information available, are well within the 
catch limits recommended by the Council's Scientific and Statistical 
Committee (SSC), and are consistent with the recommendations of both 
the Council and the Atlantic States Marine Fisheries Commission 
(Commission). In response to the concern regarding the stock 
assessment, NMFS points out that the stock assessment information was 
vetted through the Council's SSC, which determined the information was 
sufficiently reliable to establish the catch limits from which the 
specifications are derived. Lastly, as to the concern regarding the 
allocation between the commercial and recreational fisheries, this is 
an issue that would need to be addressed by the Council and Commission 
in an amendment to the Summer Flounder, Scup, and Black Sea Bass FMP 
and is outside the scope of the process of setting annual 
    Comment 2: One comment was received from a recreational fisherman 
who advocated for reallocation of fish from the commercial to the 
recreational fishery, particularly because the number of commercial 
operators has declined in the commenter's home state of Virginia.
    Response: As noted above, the issue of allocations between the 
commercial and recreational fisheries would need to

[[Page 24154]]

be addressed by the Council and Commission in an amendment to the FMP. 
NMFS has no authority to alter the allocation as part of the annual 
specifications process.
    Comment 3: The Rhode Island Division of Fish and Wildlife (RI DFW) 
provided extensive comment on the challenges state agencies face in 
administering permits for and tracking landings associated with the 
research set-aside (RSA) program. The RI DFW recommends that RSA 
landings be included as a landing disposition code in the Northeast 
Standard Atlantic Fisheries Information System (SAFIS) dealer landing 
reporting system for improved landing tracking. Several additional 
suggestions for improving the permit issuance, monitoring, and 
compliance monitoring of the RSA program were also provided.
    Response: NMFS recognizes that improvements can always be made in 
the administration of the RSA program, and NMFS also recognizes that 
the states may face unique challenges with this program; however, the 
Council and Commission continue to value the RSA program as an 
important mechanism to facilitate research on Council trust resources. 
NMFS will explore changes to the SAFIS system as RI DFW suggest, but 
acknowledge at the outset that such a change is unlikely to completely 
capture the information as RI DFW expects due to the fact that seafood 
dealers (who use SAFIS to report purchases) often do not know whether 
landings by a fishing vessel were RSA landings or not and so could not 
be expected to accurately code such landings as RSA. Because none of 
these comments are specifically germane to the annual specifications, 
no changes to the 2012 measures will be made.


    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, 
other provisions of the Magnuson-Stevens Act, and other applicable law.
    The Assistant Administrator finds good cause under 5 U.S.C. 
553(d)(3) to waive the 30-day delay in effective date as such a delay 
is unnecessary. This final rule makes no changes to the interim 
specifications implemented on January 1, 2012, so any delay in 
effectiveness of this final rule has no effect on the management 
measures to which the participants in the summer flounder, scup, and/or 
black sea bass commercial and/or recreational fisheries are currently 
    These final specifications are exempt from review under Executive 
Order 12866.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.

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

    Dated: April 17, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2012-9755 Filed 4-20-12; 8:45 am]