Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; Interim 2012 Summer Flounder, Scup, and Black Sea Bass Specifications; 2012 Research Set-Aside Projects, 82189-82197 [2011-33442]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Rules and Regulations]
[Pages 82189-82197]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33442]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 111220786-1781-01]
RIN 0648-XA795


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; Interim 2012 Summer Flounder, Scup, 
and Black Sea Bass Specifications; 2012 Research Set-Aside Projects

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

ACTION: Interim specifications; request for comments.

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SUMMARY: NMFS is implementing interim catch levels and management 
measures, called specifications, for the 2012 summer flounder, scup, 
and black sea bass fisheries, and is also providing notice of projects 
likely to request research set-aside related to exempted fishing 
permits. Interim specifications are necessary to ensure that fishing 
quotas for the summer flounder, scup, and black sea bass fisheries are 
in place at the start of the fishing year on January 1, 2012, to ensure 
the three species are not overfished or subject to overfishing in 2012. 
Notice of exempted fishing permit requests is necessary to allow public 
comment on the fishing regulation exemptions requested by research set-
aside participants.

DATES: Effective January 1, 2012, through December 31, 2012; comments 
must be received on or before January 30, 2012.

ADDRESSES: You may submit comments, identified by NMFS-NOAA-2011-0280, 
by any one of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal https://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``submit a comment'' icon, then enter NMFS-NOAA-2011-
0280 in the keyword search. Locate the document you wish to comment on 
from the resulting list and click on the ``Submit a Comment'' icon on 
the right of that line.
     Fax: (978) 281-9135, Attn: Comments on 2012 Interim Summer 
Flounder, Scup, and Black Sea Bass Specifications, NMFS-NOAA-2011-0280.
     Mail and hand delivery: Patricia A. Kurkul, Regional 
Administrator, NMFS, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope: 
``Comments on 2012 Interim Summer Flounder, Scup, and Black Sea Bass 
Specifications, NMFS-NOAA-2011-0280.''
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments 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 to https://www.regulations.gov 
without change. All Personal Identifying Information (for example, 
name, address, etc.) voluntarily submitted by the commenter may be 
publicly accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Copies of the 2012 specifications document, including the 
Environmental Assessment Analysis (EA), is available from Patricia 
Kurkul, Northeast Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. This document 
is also accessible via the Internet at https://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy 
Analyst, (978) 281-9104.

SUPPLEMENTARY INFORMATION: 

Specifications

General Specification Background

    Fishery specifications include various catch and landing 
subdivisions, including the commercial and recreational sector annual 
catch limits (ACLs), annual catch targets (ACTs), sector-specific 
landing limits, (i.e., the commercial fishery quota and recreational 
harvest limit) and research set-aside (RSA) established for the 
upcoming fishing year. An explanation of each subdivision appears later 
in this rule.
    Rulemaking for measures used to manage the recreational fisheries 
for these three species occurs separately and typically takes place in 
the first quarter of the fishing year. The Summer Flounder, Scup, and 
Black Sea Bass Fishery Management Plan (FMP) and its implementing 
regulations outline the Council's process for establishing 
specifications. Implementing regulations for these fisheries are found 
at 50 CFR part 648, subpart A (General Provisions), subpart G (summer 
flounder), subpart H (scup), and subpart I (black sea bass).
    The Mid-Atlantic Fishery Management Council (Council) and the 
Atlantic States Marine Fisheries Commission (Commission) cooperatively 
manage the summer flounder, scup, and black sea bass fisheries. 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 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.
    All requirements of the Magnuson-Stevens Fishery Conservation and

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Management Act (MSA), including the 10 national standards, also apply 
to specifications.

Background for the 2012 Specifications

    In a typical year, the Council's Scientific and Statistical 
Committee (SSC) reviews updated stock assessment information in July as 
the starting point in the specifications process. The specification 
process also allows changes to a select number of management measures 
such as commercial minimum fish size and minimum trawl net mesh sizes. 
The Council convenes in August to make specification recommendations to 
NMFS. NMFS reviews these recommendations for consistency with 
applicable law and other requirements before proceeding to implement 
the measures via notice-and-comment rulemaking. The rulemaking process 
usually takes place from October-December. Final specifications are 
typically in place on or about January 1, as this is both the start of 
the fishing year, and the annual date NMFS has used to implement the 
requirement specified in a 1997 Court order (North Carolina Fisheries 
Assoc. Inc. et al. v. Daley Civil NO. 2:97cv339 (RGD)) directing the 
agency to finalize each year's fishing quota within a reasonable period 
of time.
    For the 2012 summer flounder, scup, and black sea bass 
specifications, the rulemaking process has encountered some 
complications. As usual, the SSC and Council met in July and August, 
respectively, and conveyed recommendations to NMFS for review, 
rulemaking, and implementation. The Council then provided its 
recommendation and supporting analyses to NMFS in late September. While 
NMFS was reviewing the Council's recommendations and preparing a 
proposed rule, the Northeast Fisheries Science Center (NEFSC) published 
new assessment information for both summer flounder and scup. These 
assessment updates presented different results regarding the status of 
both stocks from the information available to the Council in August. 
Specifically, the new assessments concluded that the 2012 specification 
recommendations from the Council could result in overfishing of summer 
flounder and scup, and that summer flounder could be subject to 
overfishing during 2011 if the catch approaches the established 
allowance for this year. The updated stock assessment did provide 
verification that the summer flounder stock was rebuilt in 2010, ending 
the rebuilding program that had been in place since 2000.
    The SSC and Council met December 14, 2011, to reconsider the new 
assessment information and will provide revised recommendations to 
NMFS. The Council voted to recommend specifications based on the new 
summer flounder and scup assessment information at this meeting. The 
Council will be forwarding recommendations to NMFS to implement revised 
summer flounder and scup specifications. The exact timing and process 
for this resubmission of recommendations is unclear; however, it is 
clear that it would not be possible to implement the Council's revised 
specifications for summer flounder, scup, and black sea bass by the 
start of the 2012 fishing year on January 1.
    In response to these complications that have impaired the normal 
timing and process, NMFS is implementing interim measures consistent 
with the new stock assessments to ensure specifications that prevent 
overfishing and that apply the best available science are in place on 
January 1, 2012. NMFS is soliciting comment on these interim measures 
and may adjust, as needed, the final 2012 specifications based on 
Council recommendations and public comment on the interim measures. 
NMFS notes that the Council recommendations from the December meeting 
were for the same summer flounder and scup ACLs and ACTs being 
implemented by this interim rule. The black sea bass measures of this 
interim rule are consistent with the Council's recommendations from its 
August 2011 meeting.
    If NMFS had not implemented interim measures, no quotas for summer 
flounder, scup, or black sea bass would be in place on January 1, 2012. 
There are no quota rollover provisions for these species, so inaction 
would result in no quotas being in place for the start of the 2012 
fishing year. This result would be inconsistent with the MSA, the FMP, 
the standing Court order, and would cause additional, substantial 
complications for all those involved in fishing for or managing summer 
flounder, scup, and black sea bass.

2012 Interim Specifications

    NMFS developed these interim specifications for summer flounder and 
scup using the updated assessment information for both species and by 
applying the same calculations used by the SSC, Monitoring Committees, 
and the Council. Both species' stock assessments were categorized as 
Level 3 under the ABC Control Rules at 50 CFR 648.20. Assessments 
categorized at this level are judged by the SSC to over- or 
underestimate the accuracy of the Overfishing Limit (OFL). NMFS 
replicated the SSC's ABC derivation approach using an assumed 
coefficient of variance of the Overfishing Limit (OFL) with a lognormal 
distribution of 100 percent. NMFS also determined the biomass ratio 
(biomass(B)/BMAXIMUM SUSTAINABLE YIELD (MSY)) based on the 
2012 stock projections, categorized both species as having a typical 
life history, and applied the Council's risk policy (P*= risk of 
overfishing the stock) as described in Sec.  648.21. These approaches 
are the same used by the SSC and Council. The Monitoring Committees did 
not recommend to the Council any reduction from the ACL to ACT to 
address management uncertainty for summer flounder and scup. NMFS also 
adopted this approach in deriving summer flounder and scup ACTs based 
on the updated stock assessment information. Thus, there is no offset 
between ACL and ACT to address management uncertainty in these interim 
specifications for summer flounder and scup. More detail is provided in 
the following sections.

Summer Flounder

    The updated stock assessment OFL is 31,588,000 lb (14,328 mt). This 
amount represents a 28-percent reduction from the OFL of 43.89 million 
lb (19,908 mt) provided in the July 2011, stock projection information. 
The projected 2012 spawning stock biomass (SSB) is 134,667,008 lb 
(61,084 mt), above the SSBMSY 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 ABC is 25,581,054 lb (11,603 mt), 
which is a 28-percent reduction from the Council's original 
recommendation submitted to NMFS in September, and a 25-percent 
reduction from the 2011 ABC. This ABC is 81 percent of the OFL (i.e., 
scientific uncertainty offset is a 19-percent reduction from OFL).
    Consistent with Sec.  648.102(a), for summer flounder, the sum of 
the recreational and commercial sector ACLs is equal to ABC. ACL is an 
expression of total catch (i.e., landings and dead discarded fish). To 
derive the ACLs, NMFS used the methods developed by the Council: 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

[[Page 82191]]

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. The NMFS-derived commercial 
ACL is 14,002,000 lb (6,351 mt); the recreational ACL is 11,579,000 lb 
(5,252 mt).
    As previously mentioned, NMFS is adopting the Council's recommended 
approach for 2012 and did not reduce ACT from the ACL for the interim 
summer flounder specifications. Thus, the sector ACTs are equal to the 
sector ACLs, and management uncertainty is assumed to be zero. The 
estimated sector-specific commercial discards for summer flounder total 
459,000 lb (208 mt), which, when removed from the commercial ACT, 
results in a commercial quota of 13,136,000 lb (5,958 mt). Sector-
specific recreational discards estimated for 2012 are 2,550,000 lb 
(1,157 mt), resulting in a recreational harvest limit (i.e., 
recreational landing quota) of 8,758,000 lb (3,973 mt). Consistent with 
the FMP and the Council's previous recommendation, up to 3 percent of 
the total landing allowances may be set aside for research; 3 percent 
of the recalculated landings in this interim rule is 677,128 lb (307 
mt). This amount has been preliminarily awarded through the grant award 
process for 2012.
    As stated previously, the timing and change in information 
resulting from the updated stock assessments leaves no option except 
implementing interim measures to ensure some summer flounder catch 
constraints are in place at the start of the fishing year. The 
Council's previous catch quota recommendation for summer flounder was 
inconsistent with the MSA and FMP, as overfishing would result if those 
catch levels were fully attained in 2012. NMFS will review the 
Council's revised recommendation and public input on the interim 
measures, and may adjust the interim measures through a final rule in 
early 2012.
    Table 1 presents the interim allocations of summer flounder by 
state with and without the commercial portion of the RSA deduction. 
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. Table 1 
summarizes, for each state, the commercial summer flounder percent 
shares as outlined in Sec.  600.102(c)(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. Delaware and New York both have overages requiring reduction of 
their 2012 state commercial quota allocations. For New York, the 
overage was from 2010 and not previously accounted for in the 2011 
specifications rulemaking. The Delaware overage is explained in the 
next section.
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    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 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, effective 
January 1, 2012, landings of summer flounder in Delaware by vessels 
holding commercial Federal summer flounder permits are 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.

Scup

    The OFL for scup, as revised by the October assessment update, is 
50.48 million lb (22,897 mt). This OFL is 23 percent lower than the 
65.88-million-lb (29,883-mt) OFL the Council used as the foundation of 
its August 2011 scup specification recommendations to NMFS. 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). This is also a 23-percent reduction from the Council's 
initial ABC recommendation of 53.35 million lb (24,199 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. The 
Council did not recommend any offset to address scup management 
uncertainty in either the commercial or recreational sectors. Under the 
Council recommendation, the sector ACTs are equal to the ACLs. NMFS is 
adopting this approach in these interim specifications. Using the same 
derivation methods as 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).
    The Council recommended up to 3 percent of the landings for RSA. 
NMFS is applying the amount of RSA preliminarily identified in the 
grant award process, resulting in an RSA of up to 571,058 lb (259 mt). 
After RSA is removed, the interim commercial quota becomes 27,908,575 
lb (12,659 mt), and the interim recreational harvest limit 8,446,367 lb 
(3,831 mt). Although these amounts are 82- and 96-percent increases 
from the 2011 commercial quota and recreational harvest limit, 
respectively; they are a reduction of 16 and 20 percent, respectively, 
from the 2012 quota and recreational limits recommended by the Council 
in August.
    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 are: 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. Based on the recommendation of the Council, NMFS 
is also increasing the Winter I possession limit from 30,000 lb (13,608 
kg) to 50,000 lb (22,680 kg) per trip.
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    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).
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Black Sea Bass

    This interim rule implements the Council's recommended measures for 
black sea bass: An ABC of 4.5 million lb (2,041 mt). The black sea bass 
stock remains a Level 4 stock for ABC calculation purposes. The SSC 
rejected the OFL estimate provided from the stock assessment, stating 
that it was highly uncertain and not sufficiently reliable to use as 
the basis of management advice. This ABC is the status quo.
    The Council recommends and NMFS is implementing a commercial ACL 
and ACT of 1,980,000 lb (898 mt). For the recreational fishery, the 
Council recommends a 26-percent reduction from ACL to the ACT designed 
to mitigate uncertainty in recreational black sea bass discards. 
Analyses from the Black Sea Bass Monitoring Committee indicate that the 
post-season, actual recreational discards have often been higher than 
the projections available prior to the fishing year. If this trend 
occurs in 2012, the ACL would likely be exceeded if the ACT was set 
equal to ACL. Accordingly, the Council recommends an ACL of 2,520,000 
lb (1,143 mt) and an 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. The Council recommends up to 3 
percent of the landings as RSA which equals 92,600 lb (42 mt). This 
amount has preliminarily been awarded through the grant award process 
for 2012. When RSA is removed, the remaining available landings are the 
recreational harvest limit of 1.32 million lb (598 mt) and commercial 
quota of 1.71 million lb (774 mt). There are no prior year commercial 
black sea bass overages that require adjustment of the interim 
commercial quota for 2012. NMFS is implementing these recommendations 
as the interim measures for the 2012 black sea bass fishery.

Explanation of RSA and Exempted Fishing Permit (EFP) Requests for 
Public Comment

    In 2001, NMFS implemented Framework Adjustment 1 to the FMP to 
allow up to 3 percent of the Total Allowable Landings (TAL) for each 
species to be set aside each year in support of scientific research. 
For the 2012 fishing year, NMFS solicited research proposals for the 
Mid-Atlantic RSA program through a Federal Funding Opportunity 
announcement published on January 6, 2011.
    The project selection and award process has not concluded; however, 
three projects have been preliminarily selected for approval by the 
NEFSC.
    These projects have collectively requested 689,932 lb (312,948 kg) 
of summer flounder, 509,160 lb (230,951 kg) of scup, 184,280 (83,588 
kg) of black sea bass, 250,580 lb (113,661 kg) of longfin squid, 
200,000 lb (90,718 kg) of butterfish, and 200,000 lb (90,718 kg) of 
bluefish. Project awards are pending a review by the NOAA Grants 
Office. If any portion of the RSA quota is not awarded, NMFS will 
notify the public and return the unissued amount to the general fishery 
either through the specification rule or through the publication of a 
separate notice in the Federal Register.
    These interim specifications include a brief description of the 
preliminarily selected 2012 Mid-Atlantic RSA projects, including a 
description of applicable summer flounder, scup, and black sea bass 
regulation exemptions that will likely be required to conduct the 
proposed research and compensation fishing. The MSA requires that 
interested parties be

[[Page 82196]]

provided an opportunity to comment on all proposed EFPs. Persons 
interested in commenting on the proposed exemptions should provide 
their comments through any of the methods described in the ADDRESSES 
section of this rule.
    EFPs are issued to enable research and/or compensation fishing 
activities. Compensation fishing EFPs are issued to all projects. 
Vessels harvesting RSA quota on compensation fishing trips in support 
of approved research projects would be issued EFPs authorizing them to 
exceed applicable Federal possession limits and to fish during Federal 
quota closures. These exemptions allow project investigators to recover 
research expenses, as well as adequately compensate fishing industry 
participants harvesting RSA quota. Vessels harvesting RSA quota would 
operate within all other regulations that govern the commercial and 
recreational fisheries, unless otherwise exempted through a separate 
EFP. The harvest of RSA quota would occur January 1-December 31, 2012, 
by vessels conducting research and/or compensation fishing.
    The need for research EFPs depends on the nature of the research 
activity and whether the activity conflicts with fishing regulations. 
Not all projects need an EFP to conduct the research.
    Project 1 Description. The proposed project is the continuation of 
a scup survey of 10 hard-bottom sites in Southern New England (SNE) 
that are not sampled by current state and Federal finfish trawl 
surveys. Unvented fish pots would be fished on each site from June 
through October in coastal waters of Nantucket Sound, Martha's Vineyard 
Sound, and Buzzard's Bay, MA; and Rhode Island Sound, RI. The length 
frequency distribution of the catch would be compared statistically to 
each of the other collection sites, and to finfish trawl data collected 
by NMFS and state agencies to gain greater understanding of the scup 
stock structure.
    Research Vessel Exemptions. Research vessels for Project 1 would 
require an EFP exempting them from minimum scup and black sea bass pot 
vent size requirements to ensure that scup length frequency data are 
representative and not biased. If a participating vessel holds a 
Federal lobster permit, it would need exemption from lobster pot vent 
size requirements, as well. Exemption from scup and black sea bass 
closures and time restrictions would be needed to ensure the survey is 
not disrupted by such regulations. Exemption from scup and black sea 
bass minimum fish sizes and possession limits would also be needed for 
data collection purposes only. All undersized fish would be discarded 
as soon as practicable to minimize mortality, and fish in excess of 
possession limits would either be discarded as soon as practicable or 
landed as RSA quota.
    Compensation Vessel Exemptions. Vessels harvesting RSA quota would 
require exemptions for fishery closures and possession limits to 
facilitate compensation fishing activities.
    Project 2 Description. The proposed project is a black sea bass 
survey of sites in SNE and Mid-Atlantic waters. Unvented black sea bass 
pots would be fished on each site, with one in Massachusetts, one south 
of Rhode Island, one south of New Jersey, and one south of Virginia, 
for 5 months, running from June through October in SNE, and April 
through August in the Mid-Atlantic. The project is designed to collect 
black sea bass from sites that are not sampled by current state and 
Federal finfish bottom trawl surveys. The length frequency distribution 
of the catch would be compared statistically to each of the other 
collection sites, and to finfish trawl data collected by NMFS and state 
agencies to gain greater understanding of the black sea bass stock 
structure.
    Research Vessel Exemptions. Research vessels for Project 2 would 
require an EFP exempting them from minimum scup and black sea bass pot 
vent size requirements to ensure that black sea bass length frequency 
data are representative and not biased. If a participating vessel holds 
a Federal lobster permit, it would need to be exempted from lobster pot 
vent size requirements, as well. Exemption from scup and black sea bass 
closures and time restrictions would be needed to ensure the survey is 
not disrupted by such regulations. Exemption from scup and black sea 
bass minimum fish sizes and possession limits would also be needed for 
data collection purposes only. All undersized fish would be discarded 
as soon as practicable to minimize mortality, and fish in excess of 
possession limits would either be discarded as soon as practicable or 
landed as RSA quota.
    Compensation Vessel Exemptions. Vessels harvesting RSA quota for 
Project 2 would require exemptions from fishery closures and possession 
limits to facilitate compensation fishing activities.
    Project 3 Description. The proposed project would continue a spring 
and fall trawl survey in shallow waters between Martha's Vineyard, MA, 
and Cape Hatteras, NC, that are not sampled by the NMFS trawl survey. 
The project investigators plan to provide stock assessment data for 
Mid-Atlantic RSA species, including summer flounder, scup, black sea 
bass, longfin squid, butterfish, and Atlantic bluefish, and assessment-
quality data for weakfish, Atlantic croaker, spot, several skate and 
ray species, smooth dogfish, horseshoe crab, and several unmanaged but 
important forage species.
    Research Vessel Exemptions. Vessels conducting this near-shore 
trawl survey would not require any exemptions from regulations 
implemented under the Summer Flounder, Scup, and Black Sea Bass FMP.
    Compensation Vessel Exemptions. Vessels harvesting RSA quota for 
Project 3 would require the exemptions from fishery closures and 
possession limits to facilitate compensation fishing activities.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this interim rule is 
consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, 
other provisions of the Magnuson-Stevens Act, and other applicable law.
    Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator finds 
good cause to waive prior notice and an opportunity for public comment 
on this action, as notice and comment would be impracticable and 
contrary to the public interest.
    The timing of the normal specification process has been interrupted 
by the introduction of new stock status information provided by the 
NEFSC for summer flounder and scup. Under the MSA, NMFS and the Council 
must respond to this information to ensure these two stocks are not 
subject to overfishing in 2012. It is essential that some catch 
restrictions be established and put in place by January 1, 2012. These 
restrictions would not only control landings so that overfishing does 
not occur, but would allow the agency to comply with a longstanding 
Court order (see North Carolina Fisheries Assoc. Inc. et al. v. Daley 
Civil NO. 2:97cv339 (RGD)), which compels NMFS to put in place annual 
quotas within a reasonable period of time, which NMFS has satisfied by 
publishing such quotas on or before January 1 of each year. The FMP 
does not provide any year-to-year quota rollover. Thus, if NMFS took no 
action 2011 to set the 2012 summer flounder and scup quotas, there 
would be no catch constraints on those fisheries when the 2012 fishing 
year begins. This result would be

[[Page 82197]]

inconsistent with the MSA, the FMP, and the Court order.
    Normally, the Council decides on its summer flounder and scup 
specification recommendations in August and provides its analytical 
documentation in support of those recommendations to NMFS in September. 
NMFS reviews the recommendations and analyses for consistency with 
applicable law and other requirements, and then conducts notice-and-
comment rulemaking over the course of October, November, and early 
December. The process typically culminates in a final rule to implement 
specifications in December. Even under ideal circumstances, the 
rulemaking associated with a typical specification process from Council 
decision to agency rulemaking usually requires NMFS to waive the 30-day 
delay in effectiveness to ensure these management measures are in place 
by January 1.
    The introduction of new summer flounder and scup stock status 
information in late October presents a substantial complication in the 
specification process. The Council and NMFS are obligated by the MSA 
and National Standard 2 to utilize the best available scientific 
information in fisheries management. The updated stock status 
information for both species indicates that the Council's previous 
specification recommendations would result in overfishing both stocks 
in 2012. Under the MSA, NMFS may not authorize a level of catch that 
would knowingly result in overfishing a stock; thus, it would not be 
appropriate to implement the Council's initial specification 
recommendations for these two species. Nor would it be appropriate to 
maintain the status quo, as the 2011 catch levels would also be too 
high and would require rulemaking to maintain (i.e., they cannot be 
automatically carried over year-to-year).
    Following the release of the new information in late October, there 
was insufficient time for the Council to convene its collective 
committees and its full membership to consider the new information and 
reconsider its recommendation to NMFS. Announcement of Council and 
Council committee meetings are required to provide specific advance 
notice in the Federal Register. Here, even had the Council been able to 
convene quickly and provide NMFS revised recommendations for summer 
flounder and scup sufficient to ensure that overfishing would not occur 
in 2012, there would have been insufficient time for NMFS to review the 
recommendations and to conduct notice-and-comment rulemaking with an 
effective date on or before January 1, 2012. This is true even if an 
abbreviated public comment period and waiver of the 30-day delay in 
effectiveness were used by NMFS.
    The Council proposed revised recommendations for summer flounder 
and scup during its December 13-15, 2011, meeting. NMFS is soliciting 
public comment on the interim measures contained in this rule and will 
issue final measures, if necessary, as soon as possible in early 2012 
that respond to both the Council's revised recommendation and comments 
received on the interim measures.
    While this procedure is not completely comparable to the notice-
and-comment process typically used, NMFS views this as the only tenable 
solution to implement measures that ensure overfishing does not occur. 
This process will ensure that appropriate measures are implemented for 
the start of the fishing year and provides a meaningful way for the 
public to comment on those measures as part of the development process 
for final measures. NMFS recognizes this is not ideal; however, for the 
unforeseeable reasons outlined above, it would be impracticable to 
conduct standard notice-and-comment rulemaking for the 2012 
specifications, and failing to implement them would undermine the 
intent of the MSA, and prevent NMFS from undertaking its legal duties. 
The delay that would result from doing so would allow the fishery to 
begin with no effective catch constraints in place and would violate 
the MSA, the FMP, and introduce significant complications in the 
fishery management program. While less than ideal, the alternative of 
putting in measures through an interim rule at least ensures that catch 
constraints are in place at the start of the fishing year and provides 
a process for public input on final measures to be implemented at a 
later date.
    The Assistant Administrator further finds good cause under 5 U.S.C. 
553(d)(3) to waive the 30-day delay in effective date for the reasons 
outlined above. These specifications must be in place on January 1, 
2012, to ensure catch constraints are in place for the start of the 
fishing year.
    These interim 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: December 22, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-33442 Filed 12-29-11; 8:45 am]
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