Fisheries of the Northeastern United States; Recreational Management Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing Year 2008, 29990-30000 [E8-11601]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 101 (Friday, May 23, 2008)]
[Rules and Regulations]
[Pages 29990-30000]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-11601]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070717341-8549-02]
RIN 0648-AV41


Fisheries of the Northeastern United States; Recreational 
Management Measures for the Summer Flounder, Scup, and Black Sea Bass 
Fisheries; Fishing Year 2008

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement recreational 
management measures for the 2008 summer flounder and scup fisheries and 
to notify the public that the recreational management measures for the 
black sea bass fisheries remain the same as in 2007. 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 
these measures is to prevent overfishing of the summer flounder, scup, 
and black sea bass resources.

DATES: Effective June 23, 2008, except for the amendment to Sec.  
648.107(a) introductory text, which is effective May 23, 2008.

ADDRESSES: Copies of supporting documents used by the Summer Flounder, 
Scup, and Black Sea Bass Monitoring Committees and of the Environmental 
Assessment, Regulatory Impact Review, and Initial Regulatory 
Flexibility Analysis (EA/RIR/IRFA) are available from Daniel Furlong, 
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, 
Federal Building, 300 South Street, Dover, DE 19901-6790. The EA/RIR/
IRFA is also accessible via the Internet at https://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 and supplemental economic 
analysis document are available from Patricia A. Kurkul, Regional 
Administrator, Northeast Region, NMFS, One Blackburn 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 by the Atlantic States Marine Fisheries Commission 
(Commission) and the Mid-Atlantic Fishery Management Council (Council), 
in consultation with the New England and South Atlantic Fishery 
Management Councils. The Summer Flounder, Scup, and Black Sea Bass FMP 
and its implementing regulations, which are found at 50 CFR part 648, 
subparts A (general provisions), G (summer flounder), H (scup), and I 
(black sea bass), describe the process for specifying annual 
recreational management measures that apply in the Exclusive Economic 
Zone (EEZ). The states manage these fisheries 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 EEZ, as well as vessels possessing a Federal fisheries permit, 
regardless of where they fish.
    The 2008 coastwide recreational harvest limits, after deduction of 
research set-aside (RSA), are 6,215,800 lb (2,819 mt) for summer 
flounder, 1,830,920 lb (830 mt) for scup, and 2,108,447 lb (956 mt) for 
black sea bass. The 2008 quota specifications, inclusive of the 
recreational harvest limits, were previously determined to be 
consistent with the 2008 target fishing mortality rate (F) for summer 
flounder and the target exploitation rates for scup and black sea bass.
    The proposed rule to implement annual Federal recreational measures 
for the 2008 summer flounder, scup, and black sea bass fisheries was 
published on March 21, 2008 (73 FR 15111), and contained management 
measures (minimum fish sizes, possession limits, and fishing seasons) 
intended to keep annual recreational landings from exceeding the 
specified harvest limits.

2008 Recreational Management Measures

    Additional discussion on the development of the recreational 
management measures appeared in the preamble of the proposed rule and 
is not repeated here. All minimum fish sizes discussed below are total 
length measurements of the fish, i.e., the

[[Page 29991]]

straight-line distance from the tip of the snout to the end of the tail 
while the fish is lying on its side. For black sea bass, total length 
measurement does not include the caudal fin tendril. All possession 
limits discussed below are per person.

Summer Flounder Management Measures

    Based on the recommendation of the Commission, the Regional 
Administrator finds that the recreational summer flounder fishing 
measures proposed to be implemented by the states of Massachusetts 
through North Carolina for 2008 are the conservation equivalent of the 
season, minimum size, and possession limit prescribed in Sec. Sec.  
648.102, 648.103, and 648.105(a), respectively. According to the 
regulation at Sec.  648.107(a)(1), vessels subject to the recreational 
fishing measures of this part and landing summer flounder in a state 
with an approved conservation equivalency program shall not be subject 
to the more restrictive Federal measures, and shall instead be subject 
to the recreational fishing measures implemented by the state in which 
they land. Section 648.107(a) has been amended accordingly. The 
management measures will vary according to the state of landing, as 
specified in the following table.

                                       Table 1 - 2008 State Recreational Management Measures for Summer Flounder.
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                                                        Minimum Fish Size
                State                -------------------------------------------------------  Possession Limit (number           Fishing Season
                                                inches                        cm                      of fish)
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MA                                    17.5                        44.45                      5                          June 10 through August 15
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RI                                    20.0                        50.80                      7                          January 1 through December 31
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CT                                    19.5                        49.53                      5                          May 24 through September 1
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NY                                    20.5                        52.07                      4                          May 15 through September 1
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NJ                                    18.0                        45.72                      8                          May 24 through September 7
--------------------------------------------------------------------------------------------------------------------------------------------------------
DE                                    19.5                        49.45                      4                          January 1 through December 31
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MD\1\                                 17.5                        44.45                      3                          January 1 through December 31
--------------------------------------------------------------------------------------------------------------------------------------------------------
VA                                    19.0                        48.26                      5                          January 1 through July 20, and
                                                                                                                         July 31 through December 31
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NC\2\                                 15.5                        39.37                      8                          January 1 through December 31
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\1\ Chesapeake Bay, MD- a 16.5-in (41.91-cm) minimum fish size, a 1-fish possession limit, and a fishing season of January 1 through December 31
  applies.
\2\ Pamlico Sound , NC No person may possess flounder less than 14 in (35.56 cm) total length taken from internal waters for recreational purposes west
  of a line beginning at a point on Point of Marsh in Carteret County at 35[deg] 04.6166'N lat. 76[deg] 27.8000'W long., then running northeasterly to a
  point at Bluff Point in Hyde County at 35[deg] 19.7000'N lat. 76[deg] 09.8500'W long. In Core and Clubfoot creeks, the Highway 101 Bridge constitutes
  the boundary north of which flounder must be at least 14 in total length.
Albemarle Sound, NC No person may possess flounder less than 14 in (35.56 cm) total length taken from internal waters for recreational purposes west of
  a line beginning at a point 35[deg] 57.3950'N lat. 76[deg] 00.8166'W long. on Long Shoal Point; running easterly to a point 35[deg] 56.7316'N lat.
  75[deg] 59.3000' W long. near Marker ''5'' in Alligator River; running northeasterly along the Intracoastal Waterway to a point 36[deg] 09.3033'N lat.
  75[deg] 53.4916'W long. near Marker ''171'' at the mouth of North River; running northwesterly to a point 36[deg] 09.9093'N lat. 75[deg] 54.6601'W
  long. on Camden Point.
Browns Inlet South, NC No person may possess flounder less than 14 in (35.56 cm) total length in internal and Atlantic Ocean fishing waters for
  recreational purposes west and south of a line beginning at a point 34[deg] 37.0000'N lat. 77[deg] 15.000'W long.; running southeasterly to a point
  34[deg] 32.0000'N lat. 77[deg] 10.0000'W long.

Scup Management Measures

    This rule implements the scup measures contained in the March 21, 
2008, proposed rule. Table 2 contains the coastwide Federal measures 
for scup for 2008.

                                                   Table 2- 2008 Scup Recreational Management Measures
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                                                        Minimum Fish Size
               Fishery               -------------------------------------------------------      Possession Limit               Fishing Season
                                                inches                        cm
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Scup                                  10.5                        26.67                      15 fish                    January 1 through February 28,
                                                                                                                         and October 1 through October
                                                                                                                         31
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    As has occurred in the past 6 years, the scup fishery in state 
waters will be managed under a regional conservation equivalency system 
developed through the Commission. Because the Federal FMP does not 
contain provisions for conservation equivalency, and states may adopt 
their own unique measures, the Federal and state recreational scup 
management measures will differ for 2008.

Black Sea Bass Management Measures

    Table 3 contains the coastwide Federal measures black sea bass in 
effect for 2007 and codified. The 2008 measures are unchanged from 
those at

[[Page 29992]]

50 CFR part 648 subpart I, and are presented in Table 3.

                                              Table 3- 2008 Black Sea Bass Recreational Management Measures
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                                                        Minimum Fish Size
               Fishery               -------------------------------------------------------      Possession Limit               Fishing Season
                                                inches                        cm
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Black Sea Bass                        12                          30.5                       25 fish                    January 1 through December 31
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Comments and Responses

    Eleven comments were received regarding the proposed recreational 
management measures (73 FR 15111, March 21, 2008). One individual 
submitted several comments regarding several species such as mackerel, 
red hake, and marlin which are not addressed by this rulemaking. In 
addition, several minor comments, whose relevance to the recreational 
management measures could not be ascertained, were submitted. A number 
of issues raised by commenters pertained to past actions already 
promulgated by NMFS, such as the establishment of the 2008 summer 
flounder Total Allowable Landings (TAL) and scup rebuilding plan. These 
are not responded to in this section. When possible, the concepts 
relayed in the comments have been consolidated and responded to in 
turn.
    Comment 1: Some of the comments received allege that state-by-state 
conservation equivalency violates National Standard 2 of the Magnuson-
Stevens Act, which requires that conservation and management actions to 
be based upon the best available scientific information. The argument 
presented by the commenters is that the Marine Recreational Fishery 
Statistical Survey (MRFSS) used to develop state-by-state conservation 
equivalency measures has inadequate resolution for state-level 
monitoring and management. These commenters cite the 2006 NOAA-
commissioned National Academy of Sciences independent review of MRFSS 
that stated monitoring fisheries at a state level is a finer 
stratification than intended originally for the data collected and that 
the existing sampling strata may be too coarse a resolution to generate 
estimates that are adequate for management requirements. Further, these 
commenters cite a quotation from the National Academy of Science review 
committee chair wherein it was stated that MRFSS is better suited to 
monitor and manage on larger spatial scales rather than on smaller 
spatial scales.
    Response: NMFS disagrees that managing the summer flounder 
recreational fishery using state-by-state conservation equivalency is a 
violation of National Standard 2. NMFS has been aware of limitations in 
the MRFSS design and data for some time. It is, in fact, why the 
National Academy of Science peer-review was commissioned by NOAA. While 
the review did, as expected, point out numerous areas for improvement 
of the MRFSS sampling design, nowhere did the National Academy of 
Science reviewers indicate that use of the MRFSS data at smaller 
spatial scales (i.e., state-by-state) was an inappropriate use of the 
data. Moreover, the National Academy of Science review indicated that 
the level of precision available from MRFSS may require the 
modification of management objectives or management tools. This reason, 
along with poor performance of conservation equivalency in recent 
years, led NMFS to send letters early in the 2008 recreational 
management measures development process strongly encouraging both the 
Commission and the Council to improve their analysis of how potential 
recreational management measures are evaluated. In addition, NMFS 
encouraged states to take a more precautionary approach to both improve 
conservation equivalency's performance and to offset uncertainty in the 
assessment of potential measures effectiveness. In response, the 
Commission's Technical Committee evaluated a number of additional 
factors that may influence the effectiveness of state-by-state 
conservation equivalency before recommending the performance-based 
adjustment factor intended to improve conservation equivalency in 2008. 
NMFS contends that the information provided by MRFSS, along with 
additional information provided by individual states and fishery 
independent surveys, is sufficient and appropriate to manage the 
recreational summer flounder fishery on a state-by-state basis.
    NMFS is continuing to move forward with implementing the 
recommendations of the National Academy of Science regarding MRFSS as 
well as developing and implementing a national saltwater angler 
registry, as required by the Magnuson-Stevens Reauthorization Act of 
2006. NMFS does not disagree that the use of current MRFSS methodology 
and data has moved well beyond their originally intended purpose. The 
changes under development, when fully implemented, are expected to 
incorporate many of the National Academy of Science's recommendations 
and substantially improve the precision and utility of the recreational 
fishery information available for fisheries management. In the interim, 
while new measures are developed and implemented, the MRFSS supplied 
data remain the only available information for recreational fisheries 
management at any spatial scale.
    The use of MRFSS data was challenged, along with other aspects of 
the agency's actions, in 2006 in the case United Boatmen, et al., v. 
Gutierrez\1\, the Secretary of Commerce (Secretary), wherein the 
defendants alleged that MRFSS was a gravely flawed tool and unsuitable 
for use in setting the summer flounder TAL. On behalf of NMFS, the 
United States attorneys stated in the defendants' memorandum of law in 
opposition to the motion for summary judgment that, ``MRFSS, while 
admittedly having limitations, has been upheld under National Standard 
2 as the best available scientific information.'' The defendants' brief 
cited three separate cases wherein MRFSS had been upheld as the best 
available scientific information relative to National Standard 2. In 
this case, the judge found in favor of the Secretary, adding further 
support to the adequacy of MRFSS data for use in fisheries management 
as the best available science.
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    \1\United Boatmen, et al., v. Gutierrez Civil NO. 06-CV-400 
(JBW)
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    Comment 2: One commenter alleges that state-by-state conservation 
equivalency violates National Standard 3 of the Magnuson-Stevens Act, 
which requires individual fish stocks to be managed as a unit 
throughout its range, to the extent practicable.
    Response: NMFS disagrees with the commenter. The summer flounder 
stock is managed as a single unit, consistent with National Standard 3. 
Management is cooperative among the Commission, which represents 
individual states in

[[Page 29993]]

the management unit, the Council, and NMFS. The stock assessment 
conducted in support of annual TAL setting is for the entire Northeast 
Region management unit for summer flounder, from Maine to North 
Carolina. Catch limits for the recreational and commercial fisheries 
are established for the entire coast. The overarching commercial TAL is 
managed on a state-by-state basis, parsed by historic landings 
percentage by each state: Conversely, the recreational fishery may 
employ coastwide measures, or regional or state-by-state conservation 
equivalency to achieve the coastwide recreational harvest level. When 
state-by-state conservation equivalency is utilized for management, the 
individual state management measures are structured to achieve 
equivalency with the overarching coastwide (i.e., single management 
unit) recreational harvest limit. Furthermore, NMFS guidance on 
National Standard 3 (50 CFR 600.320) clearly states that management 
measures need not be identical for each geographic area within the 
management unit.
    Comment 3: Some of the comments received allege that state-by-state 
conservation equivalency violates National Standard 4 of the Magnuson-
Stevens Act which, states that conservation and management actions 
implemented by NMFS shall not discriminate between residents of 
different states. These commenters raised concerns about disparities 
that arise between adjacent states' management measures under the 
state-by-state conservation equivalency management system, specifically 
citing the differences between 2008 New York and New Jersey measures. 
Many of these commenters assert that such differences are highly 
inequitable and unfair. Some of these commenters point out that under 
the 2008 conservation equivalency system, New York will be required to 
implement measures with the greatest required reduction and, as a 
result, New York will have more restrictive fishing measures than any 
other state. Many of these commenters also stated that the state 
harvest allocations assigned by the Commission are inequitable and 
violate both National Standard 4 and National Standard 2 because they 
are based on a single year of landings data.
    Response: NMFS disagrees with these comments that state-by-state 
conservation equivalency violates National Standards 2 and 4 of the 
Magnuson-Stevens Act. The conservation equivalency system was 
implemented in 2001 by Framework Adjustment 2 to the Federal FMP (66 FR 
36208, July 11, 2001) and the Commission's companion action Addendum 
III to the Commission's Summer Flounder, Scup, and Black Sea Bass 
Fishery Management Plan. Under this process, states are allowed to 
design management measures to achieve their specified recreational 
management targets which, in turn, ensures that the coastwide 
recreational harvest limit will be achieved. NMFS has implemented 
conservation equivalency, as recommended by the Council and Commission, 
in each year since 2001.
    The overarching process of conservation equivalency establishes a 
set of guidance for states to tailor management measures that meet the 
conservation objectives of the FMP rather than being subject to a one-
size-fits-all coastwide approach. The conservation equivalency 
framework is uniform and applied consistently for all states, without 
differentiating among U.S. citizens, nationals, resident aliens, or 
corporations on the basis of their state of residence. Individual 
states must provide a combination of minimum fish size, possession 
limit, and fishing season to ensure that, when paired with the 
remaining Atlantic coastal states, the coastwide recreational harvest 
limit will not be exceeded. Each state's circumstance with respect to 
landings and overage is unique to that state and argues against the 
application of the same measures for each state. The Commission's 
Technical Committee evaluates the proposed state measures and, if 
sufficient, a recommendation to adopt, as functionally equivalent, the 
reviewed and approved measures is forwarded by the Commission to NMFS 
for implementation. This ensures that the conservation objectives of 
the FMP and the summer flounder rebuilding program are met.
    To achieve conservation equivalency, the Commission, not NMFS, 
establishes a base recreational allocation that each state receives 
from the coastwide recreational harvest limit and specifies the percent 
reduction or liberalization in landings each state's measures must meet 
for each year. The conservation equivalency system does not result in a 
direct distribution of fishing privileges to individual states by NMFS. 
This allocation is not earmarked solely for the residents of an 
individual state; rather, any landing made in the state in question is 
counted against that state's recreational allocation. Fishery 
participants are free to participate in multiple states, land in 
adjacent states, etc., and are not discriminated against based on their 
state of residence.
    The basis for the state recreational harvest allocations is the 
percentage of 1998 coastwide recreational landings by state. However, 
the Commission is at liberty to revise or amend these allocation 
percentages independently of the Council and/or NMFS as specific state 
recreational fishery percent allocations are not specified in the 
Federal regulations that implement the conservation equivalency 
program. The use of 1998 by the Commission was not arbitrary; the 
intent of 1998 as the base allocation year was to perpetuate the 
existing fishing practices in place prior to the onset of regulations 
which substantially modified the recreational fishery.
    The percent reduction, or liberalization in landings, required by 
the Commission is relative to the previous year's landings level to 
ensure that the state-supplied measures will result in the same harvest 
level as would coastwide measures. A state may be required to reduce 
landings if the coastwide recreational harvest limit is reduced from 
year to year, if the state in question has exceeded the previous year's 
recreational landing limit, or if both have occurred. For 2008, in 
response to NMFS indicating that conservation equivalency measures 
needed to be more robust, the Commission included an additional percent 
reduction for some states called a performance-based adjustment. This 
adjustment is a further reduction imposed by the Commission to ensure 
that conservation equivalency will function as designed, and is the 
average overage for individual states from the period of 2001-2007.
    New York has exceeded its Commission specified allocation of the 
recreational harvest limit in 5 of the 7 years where conservation 
equivalency has been utilized, including a 55-percent overage in 2007. 
The state's overages have ranged from 20 to 112 percent. Therefore, the 
percent reduction required by the Commission for New York under 
conservation equivalency for 2008 is greater than adjacent states. Had 
New York's measures achieved the required targets in previous years, 
New York would not be required to produce as large a reduction under 
the Commission's plan in 2008 to ensure that conservation equivalency 
could be achieved on a coastwide basis.
    For these reasons, NMFS finds that implementing conservation 
equivalency, as recommended by the Council and Commission for 2008, 
does not violate National Standard 4 or National Standard 2 of the 
Magnuson-Stevens Act.
    Comment 4: Some commenters allege that state-by-state conservation

[[Page 29994]]

equivalency violates National Standard 6 of the Magnuson-Stevens Act, 
which states that conservation and management measures shall take into 
account and allow for variations among, and contingencies in, 
fisheries, fishery resources, and catches. The basis for the commenters 
assertion is that conservation equivalency does not address a northward 
shift in summer flounder stock distribution.
    Response: NMFS disagrees with the commenters. Furthermore, NMFS 
asserts that the commenters have misinterpreted the intent of National 
Standard 6. The intent of National Standard 6 is to ensure that an FMP 
management regime includes some protection against uncertainties that 
may arise. National Standard 6 directs FMPs to have a suitable buffer, 
in favor of conservation, to deal with uncertainty, which may also be 
stated as a precautionary approach. Examples provided in NMFS guidance 
on National Standard 6 (50 CFR 600.336) include reductions in Optimum 
Yield, establishment of reserves, and adjustable management techniques 
to compensate for changes that occur during a fishing year as suitable 
buffers to mitigate uncertainty.
    In regards to conservation equivalency, a summer flounder stock 
assessment is conducted annually and fully accounts for, among other 
things, stock distribution, changes in stock size, and fishery 
removals. The stock assessment does fully account for changes in stock 
dynamics and distribution in providing the basis for setting the annual 
coastwide TAL, which is then divided among the recreational and 
commercial fisheries.
    The resultant commercial quota and recreational harvest limit 
generated from the annual stock assessment do account for uncertainty 
in the assessment by implementing a lower overall TAL than required by 
the FMP. For 2008, analysis conducted by the Northeast Fisheries 
Science Center (NEFSC) indicates that the 15.77-million-lb (7,153-mt) 
TAL has a 99-percent probability of not exceeding the overfishing level 
(FMAX=0.28). The FMP requires that the annual TAL have, at minimum, a 
50-percent probability of constraining fishing mortality at or below 
the overfishing level.
    Further, both the states and NMFS are able to monitor recreational 
harvests during the fishing season, and both can take corrective or 
closure actions to ensure that mortality objectives or harvest targets 
are not exceeded. For these reasons, NMFS finds that the use of state-
by-state conservation equivalency complies with National Standard 6 of 
the Magnuson-Stevens Act.
    Comment 5: One commenter stated that NMFS did not conduct the 
required review of scientific and other relevant information before 
establishing the 2008 recreational management measures.
    Response: NMFS disagrees with the commenter as extensive analysis 
of scientific and other relevant information has occurred as part of 
the 2008 recreational management measures specification process. A full 
analysis of the fishery dependent and independent data was conducted, 
as has occurred annually for each year since the inception of the FMP. 
The Council's Monitoring Committee and Commission's Technical Committee 
met jointly in November 2007 to review the most up to date stock and 
fishery related information available for establishing the 2008 
recreational management measures. This review is required under the 
summer flounder regulations at Sec.  648.100(a). These groups relayed 
their findings in December 2007 to the Council and Commission who, in 
turn, forwarded recommendations to NMFS based on the information 
provided by the two committees. Following the joint Council and 
Commission meeting, Council staff prepared and provided to NMFS an EA/
RIR/IRFA outlining, in detail, the options considered by the Council 
including the environmental, regulatory, and economic impacts of each. 
NMFS certified that the EA/RIR/IRFA, and this subsequent final rule to 
implement the 2008 recreational management measures, is fully compliant 
with the FMP, its implementing regulations, the Magnuson-Stevenson Act, 
and other applicable guidance and laws.
    Comment 6: One commenter stated that the only equitable way to 
manage the 2008 recreational summer flounder fishery would be to have a 
coastwide minimum fish size and possession limit, and allow states to 
set individual season lengths.
    Response: This approach was not contemplated by the Council, 
Commission, or individual states for 2008. The summer flounder 
regulations found at Sec.  648.100 are not currently structured to 
require or easily accommodate the commenter's proposed management 
system. Under coastwide management measures, minimum fish size, 
possession limit, and fishing season must be uniform for the entire 
coast. Under conservation equivalency, states may form voluntary 
regions; however, the states within those regions must have an 
identical minimum fish size, possession limit, and fishing season. If 
state by state-by-state conservation equivalency is utilized, states 
are permitted to adopt unique measures provided the suite of measures 
are equivalent to the level established by the coastwide measures. It 
is conceivable that under state-by-state conservation equivalency, each 
state could voluntarily agree to hold minimum fish size and possession 
limits the same across states, while implementing independent state 
fishing seasons.
    NMFS is implementing, through this final rule, state-by-state 
conservation equivalency as recommended by both the Council and 
Commission for the reasons previously outlined in the preamble to this 
rule. Under conservation equivalency, each state has implemented a 
unique minimum fish size, possession limit, and fishing season tailored 
to ensure that these measures result in recreational landings 
equivalent to the coastwide recreational harvest level.
    Comment 7: One commenter stated that no economic analysis had been 
conducted for the 2008 recreational management measures.
    Response: NMFS disagrees. A full economic impact analysis on 
regulated small businesses (i.e., federally permitted party/charter 
vessels) relative to the 2008 recreational management measures can be 
found in the EA/RIR/IRFA prepared by Council staff, the EA supplement 
prepared by NMFS staff, the proposed rule (73 FR 15111, March 21, 2008) 
IRFA summary, and in the FRFA contained in this final rule. As such, 
the economic analysis is not repeated here.
    NMFS acknowledges that there are economic impacts associated with 
reductions in the TAL, and subsequent reductions in the recreational 
harvest limit from 2007 to 2008, and that continual reductions have a 
cumulative effect on fishery participants and associated businesses. A 
discussion of the steps taken to minimize, to the extent practicable, 
the economic impacts on small entities is outlined in the FRFA 
contained in the Classification section of this final rule.
    Although this final rule does not directly regulate fishing support 
industries, NMFS acknowledges that potential reductions in fishing 
effort and associated expenditures may have indirect impacts on hotels, 
restaurants, fishing gear and bait shops, marinas, and other associated 
businesses. Rising fuel costs paired with the fishery reductions may 
exacerbate those impacts. The RFA imposes an obligation on NMFS only to 
analyze the economic impacts on businesses that it regulates directly. 
Associated and support businesses to the fishing industry

[[Page 29995]]

mentioned above are not directly regulated by NMFS. Thus, they were not 
included in the regulatory flexibility analysis.
    Comment 8: Several commenters raised the issue that NMFS had spoken 
in support of coastwide management measures in both written 
correspondence and on the record at public meetings during the 2008 
summer flounder recreational management measures development. These 
commenters indicated that NMFS is now ignoring its own advice, and 
should exercise it's authority to replace the Council and Commission's 
recommendation for state-by-state conservation equivalency with 
coastwide management measures.
    Response: NMFS acknowledges that previous statements were made by 
agency personnel in support of coastwide management measures during the 
early stages of development of recreational management measures for the 
2008 recreational summer flounder fishery. In addition to these 
statements, NMFS personnel also urged the Council and Commission to 
consider factors that affect the effectiveness of both coastwide and 
conservation equivalency approaches to recreational management to 
substantially improve the likelihood of achieving the 2008 mortality 
objectives (i.e., not exceeding the recreational harvest limit). NMFS 
asked that the Council and Commission, through their Monitoring and 
Technical Committees, evaluate factors that influence the effectiveness 
of recreational management measures, including state performance 
relative to their respective conservation equivalency targets in 
previous years, changes in fish weight, angler participation, stock 
size, noncompliance rates, and standard error around MRFSS generated 
harvest estimates used in the evaluation of potential management 
measures. The Commission's Technical Committee reviewed these topics 
and found the use of the predicted 2008 average weight and the 
performance of individual states as compelling factors for application 
in 2008. The Technical Committee recommended using the predicted 
average weight for 2008 and a performance-based adjustment factor, that 
is derived by taking the average of yearly harvest-to-target 
performance by state from 2001-2007, and applying the resultant number 
as an additional reduction to 2008 states targets that have a net 
overage for the time frame.
    NMFS is not constrained or committed to a particular course of 
action for any rulemaking until a final rule is published in the 
Federal Register. Introduction of new or previously not considered 
information, or response to issues raised by the public during open 
comment periods, are examples of instances wherein NMFS may deviate 
from the course of action initially discussed or even published in a 
proposed rule. NMFS finds the Commission's required performance-based 
approach to be a meaningful demonstration by the Commission's member 
states to ensure that conservation equivalency performs as originally 
contemplated for 2008. As such, it is a more precautionary approach 
than applied in previous years, and presents a higher likelihood that 
the 2008 recreational harvest limit will not be exceeded on either a 
state-by-state basis or coastwide, and that the subsequent mortality 
objectives will be met for the 2008 fishing year.
    For NMFS to disapprove the Council's recommendation and substitute 
alternative measures, in this case, coastwide management measures, NMFS 
must reasonably demonstrate that the recommended measures are either 
inconsistent with applicable law or otherwise demonstrate that the 
conservation objectives of the FMP will not be achieved by implementing 
the recommendation in question. NMFS does not find the Council and 
Commission's recommendation are legally suspect or incapable of 
achieving the FMP's conservation objectives in light of the additional 
performance based factor mandated by he Commission for use in 2008.
    However, NMFS remains concerned that there is little margin for 
error in the remaining 4 years of the summer flounder rebuilding plan 
(2009-2012). Therefore, as NMFS also frequently indicated during 
recreational management measures development, recreational landings 
will be monitored in season and, if necessary to ensure the mortality 
objectives are not compromised for 2008, an inseason closure of the EEZ 
may occur. Any such closure action would be announced through multiple 
media outlets, including publication of a notice in the Federal 
Register.
    Comment 9: One commenter stated that the summer flounder stock is 
sufficiently rebuilt and that the current rebuilding target should be 
re-evaluated.
    Response: The updated 2006 stock assessment information used in 
establishing the 2008 summer flounder TAL indicates that the Spawning 
Stock Biomass (SSB) in 2006, the most recent year for which complete 
information is available, was 93.3 million lb (42,316 mt). This is 
below the most recently peer-reviewed\2\ biomass rebuilding target of 
197.1 million lb (89,411 mt), and slightly below one-half the biomass 
rebuilding target level of 98.6 million lb (44,706 mt). As such, the 
stock continues to be defined as overfished, and has not yet been 
rebuilt as required by the Magnuson-Stevens Act. The summer flounder 
stock must achieve the biomass rebuilding target (i.e., be rebuilt) by 
no later than January 1, 2013.
---------------------------------------------------------------------------

    \2\ Summer Flounder Assessment and Biological Reference Point 
Update for 2006
---------------------------------------------------------------------------

    A comprehensive benchmark stock assessment involving scientist from 
the Northeast Fisheries Science Center, Mid-Atlantic state fishery 
agencies, academia, and industry is currently occurring. The benchmark 
assessment will re-evaluate the status of the summer flounder stock and 
the biological reference points, including the rebuilding target. 
Results of the benchmark assessment, including updated stock status and 
any modifications to the biological reference points and rebuilding 
target, are expected to be available to the Council during their August 
2008 meeting, wherein initial discussions for the 2009 summer flounder 
TAL will occur.
    Comment 10: Some commenters specifically requested that NMFS 
exercise its authority to replace the Council and Commission 
recommended state-by-state conservation equivalency management approach 
with the Council and Commission non-preferred alternative for coastwide 
measures. These commenters stated, in support of coastwide measures, 
that state-by-state conservation equivalency is based on flawed 
science, is grossly inequitable, and has consistently failed in 
constraining the recreational fishery to the respective annual targets.
    Response: NMFS is implementing, through this rule, the Council and 
Commission recommended management system for the 2008 summer flounder 
recreational fishery--state-by-state conservation equivalency. See 
response to comment 8 for additional details. NMFS may disapprove and 
implement substitute measures when the Council recommends measures that 
are inconsistent with the goals and objectives of the FMP, the 
Magnuson-Stevens Act rebuilding requirements for summer flounder, or 
other applicable law. NMFS has determined that state-by-state 
conservation equivalency, paired with the Commission's performance-
based adjustment factor, satisfies the 2008 regulatory and statutory 
requirements for summer flounder. As such, NMFS has no compelling 
reason to disapprove state-by-state conservation equivalency and

[[Page 29996]]

substitute coastwide measures for the 2008 recreational fishery.
    NMFS acknowledges that state-by-state conservation equivalency has 
performed poorly, since the summer flounder recreational harvest limit 
has been exceeded in 5 of the 7 years where it has been utilized. It 
was for this reason that NMFS cautioned both the Council and Commission 
that several factors influencing the effectiveness of conservation 
equivalency be examined, and a new approach or approaches applied for 
the 2008 fishery. In response, the Commission's Technical Committee 
examined several areas not previously considered in conservation 
equivalency analysis. This examination led to the Technical Committee's 
recommended performance-based adjustment factor designed to reduce the 
risk of exceeding the 2008 recreational harvest limit.
    Comment 11: Some commenters stated that state-by-state conservation 
equivalency has failed too often and will not prevent overfishing in 
2008. One of these commenters stated that the 2008 conservation 
equivalency differs by only the Technical Committee's performance-based 
adjustment from the system that performed very poorly in 2007, and is 
not likely to be successful in preventing overfishing. These commenters 
advocated for implementation of regional or coastwide measures.
    Response: NMFS has been vocal in raising its concerns about the 
performance of state-by-state conservation equivalency in recent years. 
However, as previously indicated in responses 8 and 10, NMFS has 
determined that the performance-based adjustment required by the 
Commission's Technical Committee, use of the predicted 2008 average 
weight, and inseason monitoring of the recreational fishery provides a 
sufficient basis to responsibly manage the 2008 recreational summer 
flounder fishery so that the recreational harvest limit is not 
exceeded, and the mortality objectives of the rebuilding program are 
met.
    Comment 12: The State of Maine wrote in support of state-by-state 
conservation equivalency and clarified that Maine was in the process of 
revising its current recreational harvest limit of 4 summer flounder 
per day to 2 summer flounder per day with a minimum fish size of 20 
inches (50.80 cm). This clarification was sent in response to the 
proposed rule that stated Maine had no recreational harvest limit and 
was not required to submit management measures to the Commission.
    Response: NMFS supports Maine's decision to implement a minimum 
fish size and possession limit for 2008 that is consistent with the 
size and possession limits of the precautionary default level. However, 
Maine does not have a recreational harvest allocation under the 
Commission conservation equivalency program and is not, as was stated 
in the proposed rule, required to submit measures to the Commission for 
conservation equivalency to be approved by NMFS. Occurrences of summer 
flounder north of Massachusetts are rare, and it is unlikely that many, 
if any, fish would be landed by recreational anglers in Maine. MRFSS 
data from 1998-2007 indicate that no summer flounder were landed by 
recreational fishermen in Maine for that 10-year period.

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
final rule implementing the 2008 summer flounder, scup, and black sea 
bass recreational management measures 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 delay in effective date 
for the summer flounder recreational management measures contained in 
this rule (Sec.  648.107(a)). The linchpin of NMFS's decision whether 
to proceed with the coastwide measures or to give effect to the 
conservation equivalent measures is advice from the Commission as to 
the results of its review of the plans of the individual states. This 
advice has only recently been received, via a letter dated April 23, 
2008. The recreational summer flounder fishery will be open in eight of 
nine states by May 24, 2008. The remaining state will open June 10, 
2008. Based on historic effort and landings information, and the 
importance of summer flounder as a recreational fishery target species, 
participation and landings are expected to be high from the onset of 
the fishery. The party and charter vessels from the various states are 
by far the largest component of the recreational fishery that fish in 
the EEZ. The Federal coastwide regulatory measures for the three 
species that were codified last year remain in effect until the 2008 
recreational management measures become effective. The Federal 
coastwide measures for the summer flounder fishery do not achieve the 
necessary reduction in recreational landings to constrain the fishery 
to the 2008 recreational harvest limit. It is, therefore, imperative 
that NMFS implement measures, as quickly as possible, for the 2008 
recreational summer flounder fishery to ensure that the mortality 
objectives of the 2008 recreational harvest limit are not compromised. 
The conservation equivalent measures approved by the Commission and 
implemented by this final rule are such measures. Failure of NMFS to 
implement the 2008 conservation equivalent measures as soon as possible 
would result in fishery participants operating under the more liberal 
2007 measures. The effect of this would be to substantially increase 
the early fishing season mortality on summer flounder beyond the levels 
used in estimating the appropriate 2008 measures. This substantially 
increases the likelihood that the 2008 mortality objectives will be 
compromised, as the early-season effort is historically high in 
southern and Mid-Atlantic Bight states, and those fish landed under 
last year's more liberal measures will contribute to higher 
recreational fishery mortality than previously accounted for in 
analyses. The state-by-state conservation equivalent measures will, 
upon their implementation, restrict the recreational summer flounder 
coastwide landings within the 2008 recreational harvest limit. The 
recreational scup fishery does not open until October 1, and the 2008 
black sea bass measures remain status quo; therefore, there is no need 
to waive the delay in effectiveness for these species' measures.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Included in this final rule is the FRFA prepared pursuant to 5 
U.S.C. 604(a). The FRFA incorporates the economic impacts described in 
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. Copies 
of the EA/RIR/IRFA and supplement are available from the Council and 
NMFS (see ADDRESSES).

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 are explained in 
the preambles to the proposed rule and this final rule, and are not 
repeated here.

[[Page 29997]]

A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Proposed Rule as a 
Result of Such Comments

    A summary of the comments received and NMFS' responses thereto is 
contained in the preamble of this rule. None of those comments 
addressed specific information contained in the IRFA economic analysis 
and thus, are not repeated here. No changes have been made from the 
proposed rule as a result of the comments received by NMFS.

Description and Estimate of Number of Small Entities to Which This Rule 
Will Apply

    The Council estimated that the proposed measures could affect any 
of the 919 vessels possessing a Federal charter/party permit for summer 
flounder, scup, and/or black sea bass in 2006, the most recent year for 
which complete permit data are available. However, only 369 of these 
vessels reported active participation in the recreational summer 
flounder, scup, and/or black sea bass fisheries in 2006.

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

    No-action alternatives. The economic analysis conducted in support 
of this action assessed the impacts of the various management 
alternatives. In the EA, the no action alternative for each species is 
defined as the continuation of the management measures as codified for 
the 2007 fishing season. The no-action measures were analyzed in Summer 
Flounder Alternative 2, Scup Alternative 3, and Black Sea Bass 
Alternative 1 in the Council's EA/RIR/IRFA.
    For summer flounder, state-specific implications of the no-action 
(coastwide) alternative of a 18.5-inch (46.99-cm) minimum fish size, a 
4-fish possession limit, and no closed season would not achieve the 
mortality objectives required, and, therefore, cannot be continued for 
the 2008 fishing season. Similarly the no-action alternative for scup 
(a 10-in (25.4-cm) minimum fish size, a 50-fish possession limit, and a 
fishing season of January 1 through the last day of February and from 
September 18 through November 30) would result in fishing mortality 
that exceeds the level established for 2008 and, therefore, cannot be 
continued for the 2008 fishing season. The implications of the no-
action alternative are not substantial for black sea bass. Recreational 
landings of black sea bass in 2007 were less than the target, and the 
status quo measures are expected to constrain landings to the 2008 
target.
    Summer flounder alternatives. In seeking to minimize the impact of 
recreational management measures (minimum fish size, possession limit, 
and fishing season) on small entities (i.e., Federal party/charter 
permit holders), NMFS is constrained to implementing measures that meet 
the conservation objectives of the FMP and Magnuson-Stevens Act 
rebuilding program requirements. As previously indicated, the no-action 
alternative for summer flounder was considered but rejected by the 
Council, and subsequently NMFS, on the grounds that it would not ensure 
that the 2008 mortality objectives would be met.
    The remaining alternatives examined by the Council and forwarded 
for consideration by NMFS consisted of the preferred alternative of 
state-by-state conservation equivalency with a precautionary default 
backstop, and the non-preferred alternative of coastwide measures. 
These were alternatives 1 and 2, respectively, in the Council's EA/RIR/
IRFA. These two alternatives were determined by the Council analyses to 
satisfy the 2008 conservation objectives for the recreational fishery, 
i.e., analysis indicated that implementation of either would constrain 
recreational landings within the 2008 recreational harvest limit. 
Therefore, either alternative recreational management system could be 
considered for implementation by NMFS, as the critical metric of 
satisfying the regulatory and statutory requirements would be met by 
either.
    Next, NMFS considered the recommendation of both the Council and 
Commission. Both groups recommended implementation of state-by-state 
conservation equivalency with a precautionary default backstop. In 
response to NMFS request for more stringent analyses and changes in how 
conservation equivalency measures are calculated, the Commission 
further recommended the used of a performance-based adjustment to 
further increase the reduction required for the states of Rhode Island, 
Connecticut, New York, New Jersey, and Virginia for 2008. The 
conservation equivalency approach allows states some degree of 
flexibility in the specification of management measures, unlike the 
application of one set of uniform coastwide measures. The degree of 
flexibility available to states under conservation equivalency is 
constrained to a combined suite of minimum fish size, possession limit, 
and fishing season that will achieve the required percent reduction 
required for 2008 (i.e., achieve the conservation objectives). This 
provides the opportunity for states to construct measures that achieve 
the conservation objectives while providing a state-specific set of 
measures in lieu of the one-size-fits-all coastwide measure. States 
that fail to provide measures, or whose measures do not achieve the 
required reduction, are assigned the more restrictive precautionary 
default measures.
    At this time, it is not possible to determine the precise economic 
impact on small entities under conservation equivalency. The specific 
measures adopted for each state were only made available to NMFS from 
the Commission on April 23, 2008, and were unavailable for analysis 
during this rulemaking. Because the recreational fisheries in many 
states will have begun by the time this rule is effective, NMFS has 
elected to forgo quantitative analysis of the specific conservation 
equivalency measures as implemented by the individual states as the 
need to have measures in place in a timely fashion outweighs the 
benefits of delaying publication of this rule to complete further 
analysis. However, economic impact is likely to be proportional to the 
level of landings reductions required for each individual state. As 
such, the greater percent reduction required for states that have both 
the initially required reduction as specified by the Council and the 
performance-based reduction required by the Commission (Table 4), have 
the potential for higher economic impacts on small entities in 
comparison to coastwide measures dependent on the configuration of 
management measures ultimately selected.

[[Page 29998]]



      Table 4. 2008 Conservation Equivalency State Specific Initial Percent Reductions, Commission Required
                          Performance Based Adjustments, and Final Percent Reductions.
----------------------------------------------------------------------------------------------------------------
                                 Initial Percent Reduction
             State                Required under Framework   Commission Performance-    Final Percent Reduction
                                  Adjustment 2 to the FMP     Based Reduction Factor     Required by Commission
----------------------------------------------------------------------------------------------------------------
MA                               0                          0                          0
----------------------------------------------------------------------------------------------------------------
RI                               47.5                       7.8                        51.6
----------------------------------------------------------------------------------------------------------------
CT                               28.7                       1.9                        30.1
----------------------------------------------------------------------------------------------------------------
NY                               45.9                       33.6                       64.0
----------------------------------------------------------------------------------------------------------------
NJ                               39.2                       4.3                        41.8
----------------------------------------------------------------------------------------------------------------
DE                               41.8                       0.0                        41.8
----------------------------------------------------------------------------------------------------------------
MD                               56.7                       0.0                        56.7
----------------------------------------------------------------------------------------------------------------
VA                               13.9                       8.9                        21.5
----------------------------------------------------------------------------------------------------------------
NC                               34.3                       0.0                        34.2
----------------------------------------------------------------------------------------------------------------

    For NMFS to disapprove the Council's recommendation for 
conservation equivalency and substitute coastwide management measures, 
NMFS must reasonably demonstrate that the recommended measures are 
either inconsistent with applicable law or otherwise demonstrate that 
the conservation objectives of the FMP will not be achieved by 
implementing conservation equivalency. NMFS does not find the Council 
and Commission's recommendation to be inconsistent with the 
implementing regulations of the FMP found at Sec.  648.100 or the 
Magnuson-Stevens Act. Furthermore, NMFS finds that the performance-
based adjustment factor paired with the use of the predicted average 
fish weight for 2008 required by the Commission are meaningful 
demonstrations to improve the performance of conservation equivalency. 
These improvements, paired with the potential for inseason closure of 
the EEZ by NMFS, present a much higher likelihood that conservation 
equivalency will function in 2008 as designed and will ensure that the 
recreational harvest level will not be exceeded.
    The use of coastwide management measures was considered by NMFS. In 
fact, as a number of commenters stated in response to the proposed 
rule, NMFS advocated for a coastwide approach in the early stages of 
the 2008 recreational fishery management measures development. The 
economic impacts on small entities under the coastwide measures 
management system would vary in comparison to the conservation 
equivalency system dependent on the specific state wherein the small 
entities operate. In the Council's provided analysis, closed seasons 
typically result in a higher economic impact to small entities than do 
increases in minimum fish sizes or reduction in possession limits. The 
reason for this is that angler success begins to decline at higher 
minimum fish size and higher possession limits, yielding lower return 
on the effectiveness of implementing such measures. Closed seasons, 
however, are unmistakable in their effectiveness as they permit no 
harvest irrespective of fish size or possession limit, provided there 
are no compliance issues. Closed seasons also are typically more easily 
enforceable. The interplay between the three management measures and 
the inability to quantitatively assess the impacts of the state's 
implemented conservation equivalency measures make definitive 
statements regarding impacts difficult to provide. Both fishery 
independent and dependent data suggests that larger summer flounder are 
less common in the southern portion of the management range; therefore, 
implementation of coastwide measures may have a more profound economic 
impact on small entities operating in the southern portion of the 
management area if the minimum fish size is set larger than fish that 
are typically available in southern states. Conservation equivalency is 
generally expected to mitigate the economic impact in states with lower 
required percent reductions for 2008 compared to the coastwide 
reduction of 36.3 percent. In those states, management measures can be 
tailored that suit the expressed needs of both small entities and other 
recreational fishery participants while achieving the required 
conservation equivalency percent reduction. Conversely, coastwide 
measures may yield lower economic impacts for states with the percent 
reductions greater than the total coastwide level of reduction required 
for 2008 by permitting smaller minimum fish sizes paired with slightly 
lower possession limits, and comparable fishing seasons than would be 
required for implemented under conservation equivalency.
    However, NMFS is implementing the Council and Commission's 
recommended state-by-state conservation equivalency measures for the 
reasons previously stated: (1) The state-by-state conservation 
equivalency management system has been modified, by the Commission, 
from the previously utilized methodology that had yielded a poor 
performance record; and, (2) NMFS finds no compelling reason to 
disapprove the Council and Commission's recommended 2008 management 
system as the analysis provided by the Commission's Technical Committee 
demonstrates that the improved conservation equivalency system will 
provide a high likelihood that the 2008 recreational harvest limit will 
not be exceeded. To further ensure that the 2008 recreational harvest 
limit is not exceeded, NMFS is prepared to close the EEZ during the 
fishing season if harvest projections indicate that the 2008 
recreational harvest limit may be exceeded before the end of the 
calendar year.
    Scup alternatives. Similar to summer flounder, the options 
available for scup recreational management measures are constrained to 
selecting a suite of minimum fish size, possession limit, and fishing 
season measures that achieves the annual conservation objectives. In 
this case, the conservation objective is a level of recreational scup

[[Page 29999]]

landings that is at or below the 2008 scup recreational harvest level. 
Therefore, the measures available to mitigate the economic impact on 
small entities is constrained to selectio