[Federal Register Volume 77, Number 125 (Thursday, June 28, 2012)]
[Proposed Rules]
[Pages 38566-38568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15890]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120307159-2155-01]
RIN 0648-BB99

Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid, and Butterfish Fisheries; Framework Adjustment 6

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

ACTION: Proposed rule, request for comments.


SUMMARY: NMFS proposes a change in the Mid-Atlantic Fishery Management 
Council's risk policy regarding stocks without an overfishing limit. 
The current risk policy does not allow increases of the acceptable 
biological catch for stocks that do not have an overfishing limit 
derived from the stock assessment. The modification will allow 
increases of the acceptable biological catch for stocks that have 
stable or increasing trends in abundance, and for which there is robust 
scientific information to suggest that an increased acceptable 
biological catch will not lead to overfishing.

DATES: Public comments must be received no later than 5 p.m., eastern 
standard time, on July 30, 2012.

ADDRESSES: Copies of supporting documents used by the Mid-Atlantic 
Fishery Management Council (Council), including the Supplemental 
Environmental Assessment (EA) and Regulatory Impact Review (RIR)/
Initial Regulatory Flexibility Analysis (IRFA) for Framework Adjustment 
6, are available from: Dr. Christopher M. Moore, Executive Director, 
Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State 
Street, Dover, DE 19901. The EA/RIR/IRFA is accessible via the Internet 
at http://www.nero.noaa.gov.
    You may submit comments, identified by NOAA-NMFS-2012-0110, by any 
one of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter NOAA-NMFS-2012-0110 in the keyword search. 
Locate the document you wish to comment on from the resulting list and 
click on the

[[Page 38567]]

``Submit a Comment'' icon on the right of that line.
     Mail to NMFS, Northeast Regional Office, 55 Great Republic 
Dr, Gloucester, MA 01930. Mark the outside of the envelope ``Comments 
on MSB Framework Adjustment 6.''
     Fax: (978) 281-9135, Attn: Aja Szumylo.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that they are received, documented, and considered by 
NMFS. Comments sent by any other method, to any other address or 
individual, or received after the end of the comment period, may not be 
considered. All comments received are a part of the public record and 
will generally be posted for public viewing on www.regulations.gov 
without change. All personal identifying information (e.g., name, 
address, etc.) submitted voluntarily by the sender will be publicly 
accessible. Do not submit confidential business information, or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (enter ``N/A'' in the required fields if you wish to 
remain anonymous). Attachments to electronic comments will be accepted 
in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats 

FOR FURTHER INFORMATION CONTACT: Aja Szumylo, Fishery Policy Analyst, 
978-281-9195, fax 978-281-9135.



    The regulations that implement the Council's risk policy at 50 CFR 
648.21 went into effect on October 31, 2011, as part of the Council's 
Omnibus Amendment to implement annual catch limits and accountability 
measures (76 FR 60606). Among other measures, the Omnibus Amendment 
established acceptable biological catch (ABC) control rules 
(implementing regulations at 50 CFR 648.20) and a risk policy (Sec.  
648.21) to guide the Council's Scientific and Statistical Committee 
(SSC) in their ABC setting process.
    The ABC control rules assign stocks to a certain level (Levels 1-4) 
based on the amount of uncertainty about the stock, and provide 
formulas for the establishment of an ABC for stocks at each level. 
Level 1 refers to stocks that have mostly complete stock status 
information, while Level 4 refers to data poor stocks. The ABC control 
rule regulations note that the SSC can deviate from the control rule 
methods if they describe why the deviation is warranted, describe the 
methods used to derive the alternative ABC, and explain how the 
deviation is consistent with National Standard 2. The risk policy works 
in conjunction with the ABC control rules, and is used to indicate the 
Council's preferred tolerance for risk of overfishing to the SSC. In 
general, the Council's risk policy states that ABC should be set so 
that the risk of overfishing stays below 40 percent, based on a 
probability distribution for the overfishing limit (OFL).
    The existing risk policy is more stringent for stocks that lack an 
OFL and states that, ``If an OFL cannot be determined from the stock 
assessment, or if a proxy is not provided by the SSC during the ABC 
recommendation process, ABC levels may not be increased until such time 
that an OFL has been identified.'' This provision was designed to 
prevent catch levels from being increased when there are no criteria 
available to determine if overfishing will occur in the upcoming 
fishing year. Following one of the first applications of the risk 
policy for the 2012 fishing year (2012 butterfish specifications; 77 FR 
16472; March 21, 2012), the Council found that there are limited 
circumstances in which the SSC may be scientifically justified in 
recommending that the ABC be increased for stocks without fishing 
mortality reference points without resulting in an unacceptably high 
risk of overfishing. Thus, the Council initiated Framework Adjustment 6 
to change the risk policy to allow the SSC to use all available 
scientific data when recommending ABCs in data poor situations, rather 
than constraining the SSC in its recommendation when an OFL is not 
    Framework Adjustment 6 proposes to modify the risk policy regarding 
stocks without an OFL or OFL proxy to allow increase in ABC for stocks 
that have stable or increasing trends in abundance, and for which the 
SSC can point to robust scientific information to suggest that an 
increased ABC will not lead to overfishing. The adjustment to this 
policy would not change the Council's approach to stocks without an OFL 
that have declining biomass, or for which the SSC cannot point to 
scientific evidence to suggest that the recommended ABC will not result 
in overfishing.
    Though the proposed action only modifies the MSB FMP, it will apply 
to all of the Council's managed species, including Atlantic mackerel, 
butterfish, Atlantic bluefish, spiny dogfish, summer flounder, scup, 
black sea bass, Atlantic surfclam, ocean quahog, and tilefish. The 
provisions in the Omnibus Amendment, including the risk policy, do not 
apply to longfin squid or Illex squid; these species are exempt from 
these requirements because they have a life cycle of less than 1 year. 
The regulations for the ABC control rules and risk policy reside in the 
MSB FMP, but are a product of the Omnibus Amendment, which affected all 
of the plans for the above listed species. It is only necessary to 
complete this action as a Framework Adjustment to the MSB FMP because 
the ABC control rules and risk policy are incorporated by reference 
into the regulations for all other Council species.


    Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant 
Administrator has determined that this proposed rule is consistent with 
the Atlantic Mackerel, Squid, and Butterfish FMP; Atlantic Bluefish 
FMP; Spiny Dogfish FMP; Summer Flounder, Scup, and Black Sea Bass FMP; 
Surfclam and Ocean Quahog FMP; and Tilefish FMP; other provisions of 
the MSA; and other applicable law, subject to further consideration 
after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    As outlined in the preamble to this proposed rule, Framework 
Adjustment 6 proposes to modify the Council's risk policy regarding 
stocks without an OFL or OFL proxy to allow increase in ABC for stocks 
that have stable or increasing trends in abundance, and for which the 
Council's SSC can point to robust scientific information to suggest 
that an increased ABC will not lead to overfishing. The Council 
conducted a comprehensive evaluation of the potential socioeconomic 
impacts of Framework Adjustment 6 in conjunction with a Supplemental 
Environmental Assessment analysis.
    The formal procedures for addressing both scientific and management 
uncertainty in the catch limit establishment system implemented through 
the Omnibus Amendment were administrative, as they were entirely a 
description of process and have no substantive impact on regulated 
entities. Framework Adjustment 6 adjusts a feature of the existing 
catch limit establishment system. While Framework Adjustment 6 adjusts 
the Council's guidance to the SSC regarding ABC recommendations for 
stocks without an OFL or OFL proxy, the action contains

[[Page 38568]]

no actual application of the methods to set ABC, application of the 
risk policy, or establishment of specific annual catch limits or 
accountability measures for any of the Council's fishery management 
plans (FMPs). As a result, there are no immediate economic impacts to 
evaluate. Should the SSC rely on this provision to recommend ABCs in 
future specifications, the resulting catch levels derived from its 
recommendation will have measurable impacts, and the specific impacts 
associated those catch levels will be evaluated through the Council's 
specification processes for each FMP and addressed in the resulting 
NMFS rules.
    The Council-conducted analyses identified 2,875 unique fishing 
entities in the Northeast Region, all of which were determined to be 
small entities. However, given the purely administrative nature of the 
proposed measures, there are neither expected direct economic or 
disproportionate impacts to either small or large regulated entities 
given the aforementioned adjustment to the administrative process 
proposed in Framework Adjustment 6. As a result, an initial regulatory 
flexibility analysis is not required and none has been prepared. RFA 
analysis will be conducted, as appropriate, for subsequent actions that 
establish catch limits for Council-managed species.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: June 25, 2012.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:


    1. The authority citation for part 648 continues to read as 

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

    2. In Sec.  648.21, paragraph (d) is revised to read as follows:

Sec.  648.21  Mid-Atlantic Fishery Management Council risk policy.

* * * * *
    (d) Stock without an OFL or OFL proxy. (1) If an OFL cannot be 
determined from the stock assessment, or if a proxy is not provided by 
the SSC during the ABC recommendation process, ABC levels may not be 
increased until such time that an OFL has been identified.
    (2) The SSC may deviate from paragraph (d)(1) of this section, 
provided that the following two criteria are met: Biomass-based 
reference points indicate that the stock is greater than 
BMSY and stock biomass is stable or increasing, or if 
biomass based reference points are not available, best available 
science indicates that stock biomass is stable or increasing; and the 
SSC provides a determination that, based on best available science, the 
recommended increase to the ABC is not expected to result in 
overfishing. Any such deviation must include a description of why the 
increase is warranted, description of the methods used to derive the 
alternative ABC, and a certification that the ABC is not likely to 
result in overfishing on the stock.

[FR Doc. 2012-15890 Filed 6-27-12; 8:45 am]