E7-19348. Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; Framework Adjustment 7

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement measures contained in Framework Adjustment 7 (Framework 7) to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP). Framework 7 will broaden the FMP stock status determination criteria for summer flounder, scup, and black sea bass, while maintaining objective and measurable criteria for identifying when the FMP stocks are overfished or approaching an overfished condition. The framework action will also establish acceptable categories of peer review for providing new or revised stock status determination criteria for the Council to use in its annual management measures for each species. This action is necessary to ensure that changes or modification to the stock status determination criteria constituting the best available peer reviewed scientific information are accessible for the management of these three species in as timely a manner as is possible. The intended effect of this action is to improve the timeliness and efficiency of incorporating the best available scientific information, consistent with National Standards 1 and 2 of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), into the management processes for the three species covered by the FMP.

DATES:

This rule is effective October 31, 2007.

ADDRESSES:

Copies of Framework Adjustment 7 are available from Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19901-6790. The framework document is also accessible via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Michael Ruccio, Fishery Policy Analyst, [phone].

SUPPLEMENTARY INFORMATION:

Background

The proposed rule for Framework 7 was published in the Federal Register on August 6, 2007 (72 FR 43587). A complete discussion of the development and rationale for the framework appeared in the preamble of the proposed rule and is not repeated here.

The current stock status determination criteria for summer flounder (Paralichthys dentatus), scup (Stenotomus chrysops), and black sea bass (Centropristas striata) are found in Amendment 12 to the FMP. Prior to the development of Framework 7, the Mid-Atlantic Fishery Management Council (Council) would be required to enact a framework adjustment or an amendment to the FMP to modify or replace these stock status determination criteria on a case-by-case basis.

Stock assessment information is updated annually as part of the management process that is used to derive annual catch limits (e.g., Total Allowable Landings (TAL)). The updated assessment information is utilized in the regulatory processes for these three species outlined at §§ 648.100, 648.120, and 648.140. These annual “turn of the crank” updates typically make no changes to the existing stock status determination criteria and are performed by groups with technical expertise, but are not typically subject to formal peer reviews nor are the stock status determination criteria often recommended to be changed.

Full assessments for these three stocks undergo periodic formal scientific peer review as part of the Northeast Fisheries Science Center's (NEFSC) Stock Assessment Workshop (SAW) and Stock Assessment Review Committee (SARC) process. These and other periodic formal assessments and subsequent peer reviews conducted for these stocks may result in recommendations to revise or use different stock status determination criteria as different or new approaches are applied to previously existing data, or to new, previously unexamined data. These types of assessments and peer reviews are distinguishable from the annual updates as they are often more comprehensive in nature and subject to rigorous scientific peer review that is consistent with the Office of Management and Budget (OMB) Information Quality Bulletin for Peer Review.

In the absence of the provisions contained in Framework 7 to more generally describe stock status determination criteria, when a full stock assessment and subsequent peer review recommended modification of existing or new stock status determination criteria for these species occurs it is likely that the new criteria would not be available for the Council's use for one or more annual management review cycles (i.e., a 1- to 2-year delay) while a framework adjustment or an amendment was developed and implemented.

The increased flexibility in defining the stock status determination criteria contained in Framework 7, consistent with National Standards 1 and 2, will allow the Council to utilize the best available peer reviewed science within the annual management measures development process, thereby improving the timeliness of incorporating the most current, best available stock status determination criteria.

Additionally, Framework 7 provides guidance on acceptable peer review practices, particularly for conducting reviews on stock assessments that generate modified or new stock status determination criteria that may not originate from the NEFSC SAW/SARC process, which is the primary stock assessment process for the Northeast Region. This guidance will help ensure that any such external review is sufficiently rigorous so that the resulting stock status determination advice may be considered by the Council as the best available science. In the unlikely circumstance that two or more sets of different but peer review accepted stock status determination criteria are available for the Council's use, the Council would still be required to adequately justify its final selection of one set over the other or others, consistent with national standard guidelines.

Framework 7 also provides guidance on how the Council may convene its Scientific and Statistical Committee (SSC) in the unlikely event that peer reviewed stock status determination criteria recommendations are unclear (i.e., lack of consensus from the reviewers), and how such information should be used in crafting management decisions should the peer review not specify such guidance. The SSC would, in such instances, only review information that lacks clarity; in instances where a formal peer review results in a consensus recommendation for use, that information is clearly the best available information and, as such, requires no additional review or input from the SSC prior to the Council using the information. Similarly, the SSC would not be needed to review peer review recommendations that reject modified or new stock status determination criteria because such information is not the best available (i.e., if new information is rejected in peer review, the existing stock status determination criteria remains the best available information).

Comments and Response

Two comments were received regarding the proposed rule. One comment did not address any aspect of the framework, instead raising questions about where commercial fisheries for summer flounder should be allowed to take place. As this comment is not directly related to the action of Framework 7, it is not responded to here.

Comment: The commenter asserted that implementation of Framework 7 would allow continued overfishing of summer flounder, scup, and black sea bass stocks and that the framework allows an unspecified, upward adjustment to quotas that would further exacerbate overfishing.

Response: NMFS acknowledges that all three species are currently overfished. Framework 7 makes no specific adjustment to either the current biological reference points used to define the status of these three stocks, nor does the framework make any adjustment to the management measures (e.g., TALs, recreational possession and size limits, etc.) used to eliminate overfishing in this or in future years. As outlined in the preamble to the final rule, Framework 7 is an administrative change focused on the mechanism through which the best available peer-reviewed information may be incorporated into the annual management process that sets quotas and other management measures that are aimed at ending overfishing and rebuilding stocks to their maximum sustainable yield levels. Annual management measures that are part of separate rulemaking are used to eliminate overfishing.

Furthermore, Framework 7 contains no explicit adjustments to quotas for any of the three species. If, in the future, revised or new stock status determination criteria are developed and vetted for use through the peer review process outlined in Framework 7, there may be adjustments, either upward or downward, to quotas as the results of the stock status and peer review dictate.

Classification

The Administrator, Northeast Region, NMFS, determined that Framework Adjustment 7 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 Fishery Conservation and Management Act and other applicable laws.

This 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 during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

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

Dated: September 26, 2007.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.