Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; 2009 Summer Flounder, Scup, and Black Sea Bass Specifications; Preliminary 2009 Quota Adjustments; 2009 Summer Flounder Quota for Delaware, 29-38 [E8-31236]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 1 (Friday, January 2, 2009)]
[Rules and Regulations]
[Pages 29-38]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-31236]


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DEPARTMENT OF COMMERCE

50 CFR Part 648

[Docket No. 0809251266-81485-02]
RIN 0648-XJ96


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; 2009 Summer Flounder, Scup, and 
Black Sea Bass Specifications; Preliminary 2009 Quota Adjustments; 2009 
Summer Flounder Quota for Delaware

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

ACTION: Final rule.

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SUMMARY: NMFS issues final specifications for the 2009 summer flounder, 
scup, and black sea bass fisheries. This final rule specifies allowed 
harvest limits for both commercial and recreational fisheries, 
including commercial scup possession limits. This action prohibits 
federally permitted commercial vessels from landing summer flounder in 
Delaware in 2009 due to continued quota repayment from previous years' 
overages.
    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 this action is to establish harvest levels and other 
management measures to ensure that target fishing mortality rates (F) 
or exploitation rates, as specified for these species in the FMP, are 
not exceeded. In addition, this action implements measures that ensure 
continued rebuilding of these three stocks that are currently under 
rebuilding plans.

DATES: Effective January 1, 2009, through December 31, 2009.

ADDRESSES: Copies of the specifications document, including the 
Environmental Assessment (EA), Regulatory Impact Review (RIR), Initial 
Regulatory Flexibility Analysis (IRFA), and other supporting documents 
used by the Summer Flounder, Scup, and Black Sea Bass Monitoring 
Committees and Scientific and Statistical Committee are available from 
Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management 
Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 
19901-6790. The specifications document 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 are available from Patricia A. Kurkul, Regional 
Administrator, Northeast Region, National Marine Fisheries Service, 55 
Great Republic 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 under the provisions of the FMP developed by the Mid-
Atlantic Fishery Management Council (Council) and the Atlantic States 
Marine Fisheries Commission (Commission), in consultation with the New 
England and South Atlantic Fishery Management Councils. 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 (NC) 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

[[Page 30]]

Hatteras Lighthouse, Buxton, NC) northward to the U.S./Canada border. 
The Council prepared the FMP under the authority of the Magnuson-
Stevenson Act, 16 U.S.C. 1801 et seq. Regulations implementing the FMP 
appear at 50 CFR part 648, subparts A (general provisions), G (summer 
flounder), H (scup), and I (black sea bass). General regulations 
governing U.S. fisheries also appear at 50 CFR part 600. States manage 
summer flounder 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 exclusive economic 
zone (EEZ), as well as vessels possessing a Federal fisheries permit, 
regardless of where they fish.
    The regulations outline the process for specifying the annual catch 
limits for the summer flounder, scup, and black sea bass commercial and 
recreational fisheries, as well as other management measures (e.g., 
mesh requirements, minimum fish sizes, gear restrictions, possession 
restrictions, and area restrictions) for these fisheries. The measures 
are intended to achieve the annual targets set forth for each species 
in the FMP, specified either as an F or an exploitation rate (i.e., the 
proportion of fish available at the beginning of the year that may be 
removed by fishing during the year). Once the catch limits are 
established, they are divided into quotas based on formulas contained 
in the FMP. Detailed background information regarding the status of the 
summer flounder, scup, and black sea bass stocks and the development of 
the 2009 specifications for these fisheries was provided in the 
proposed specifications (73 FR 63934; October 28, 2008). That 
information is not repeated here.
    NMFS will establish the 2009 recreational management measures for 
summer flounder, scup, and black sea bass by publishing proposed and 
final rules in the Federal Register at a later date, following receipt 
of the Council's recommendations as specified in the FMP.

Summer Flounder

    This final rule implements the specifications contained in the 
October 28, 2008, proposed rule--a summer flounder Total Allowable 
Landings (TAL) of 18.45 million lb (8,368 mt) for 2009. This TAL has a 
63-percent probability of constraining fishing mortality below the 
management target of F40 percent=0.255 and a 97-percent 
probability of constraining fishing mortality below the overfishing 
threshold of FMSY=F35 percent=0.310. In recent 
years, NMFS has implemented summer flounder TALs that contained a 75-
percent probability of constraining fishing mortality below the level 
(i.e., FREBUILD) expected to achieve the biomass target 
(i.e., BMSY) by January 1, 2013, to ensure that the 
Magnuson-Stevens Act rebuilding program is satisfied. The 2009 TAL has 
an 83-percent probability of constraining fishing mortality below 
FREBUILD=0.274 level. Furthermore, for 2009, the TAL had 
been established using a management target that is lower than 
FREBUILD (i.e., F40 percent (management 
target)REBUILDMSY(overfishing threshold)), 
thereby providing a greater probability that the 2009 fishing mortality 
objective will not be exceeded and the required stock rebuilding will 
occur. This TAL setting approach also satisfies a 2000 Federal Court 
Order ((Natural Resources Defense Council v. Daley, Civil No. 1:99 CV 
00221 (JLG)) which requires the annual summer flounder TAL to have at 
least a 50-percent probability of success.
    Three research projects that would utilize the full summer flounder 
research set-aside (RSA) of 553,500 lb (251 mt) have been conditionally 
selected by NMFS and are currently awaiting notice of award. If a 
proposed project is not approved by the NOAA Grants Office, the 
research quota associated with the disapproved proposal will be 
restored to the summer flounder TAL through publication in the Federal 
Register. After deducting the 2009 RSA, the TAL is divided into a 
commercial quota of 10,737,900 lb (4,871 mt) and a recreational harvest 
limit of 7,158,600 lb (3,247 mt).
    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 2008, 
plus any previously unaccounted for overages from January-December 
2007. Table 1 summarizes, for each state, the commercial summer 
flounder percent shares as outlined in Sec.  600.100(d)(1)(I), the 
resultant 2009 commercial quota (both initial and less the RSA), the 
quota overages as described above, and the final adjusted 2009 
commercial quota less the RSA.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TR02JA09.006

BILLING CODE 3510-22-C

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    The Commission has established a system whereby 15 percent of each 
state's quota may be voluntarily set aside each year to enable vessels 
to land an incidental catch allowance after the directed fishery in a 
state has been closed. The intent of the incidental catch set-aside is 
to reduce discards by allowing fishermen to land summer flounder caught 
incidentally in other fisheries during the year, while ensuring that 
the state's overall quota is not exceeded. These Commission set-asides 
are not included in these 2009 final summer flounder specifications 
because NMFS does not have authority to establish such subcategories.

Delaware Summer Flounder Closure

    Table 1 indicates that, for Delaware, the amount of the 2008 summer 
flounder quota overage (inclusive of overharvest from previous years) 
is greater than the amount of commercial quota allocated to Delaware 
for 2009. As a result, there is no quota available for 2009 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 (Regional 
Administrator), has determined no longer has commercial quota available 
for harvest. Therefore, effective January 1, 2009, landings of summer 
flounder in Delaware by vessels holding commercial Federal summer 
flounder fisheries permits are prohibited for the 2009 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 2009 calendar year, 
unless additional quota becomes available through a transfer, as 
mentioned above.

Scup

    This final rule implements the least restrictive (i.e., highest 
associated harvest levels) analyzed by the Council. The Council 
recommended, and NMFS published in the October 28, 2008, proposed rule, 
an 11.70-million-lb (5,339-mt) scup Total Allowable Catch (TAC) and a 
7.34-million-lb (3,329-mt) scup TAL. The rationale for so doing was 
that scup are under a rebuilding plan and, at the time the Council met 
in August, the best available information indicated that scup 
rebuilding was behind the established rebuilding schedule. During the 
interim between the Council recommending a 2009 TAC and TAL for scup, 
the Northeast Fisheries Science Center (NEFSC) convened a Data Poor 
Stocks Working Group (DPWG) to review biological reference points for 
scup. The peer review body of the DPWG has preliminarily indicated that 
the revised biological reference points, the modeling framework used to 
generate those reference points, and resultant change in stock status 
are acceptable, now represent the best available information, and 
should be utilized to craft management advice. While the final peer 
review report will not be available until late January or early 
February 2009, NMFS is implementing the least restrictive/highest scup 
TAC/TAL alternative analyzed by the Council as the updated stock status 
information resulting from the DPWG indicate the scup stock status has 
improved substantially and is rebuilt (i.e., now above the revised 
rebuilding biomass target). Amendment 14 to the FMP established a scup 
rebuilding plan based on a fixed F = 0.10 approach. During the 2009 
specification development, the Council considered establishing catch 
levels derived using the F = 0.10 approach but selected a more 
precautionary TAC and TAL because the information available at the time 
indicated that scup were behind the rebuilding schedule. Because scup 
are no longer considered to be behind schedule, the additional 
precaution recommended by the Council is no longer necessary. NMFS 
considers the F = 0.10 approach consistent with the intent of the FMP 
pending the release of the final DPWG report. When final reports are 
issued for the DPWG and scup stock status is officially updated using 
the revised biological reference points, NMFS may take additional 
action to further modify the 2009 scup specifications.
    This rule implements a 15.54-million-lb (5,796-mt) scup TAC and an 
11.18-million-lb (4,170-mt) scup TAL. The TAC is divided into 
commercial (78 percent) and recreational (22 percent) allocations, in 
accordance with the FMP; the respective discard estimates are then 
subtracted to yield the preliminary TAL. NMFS is not altering the RSA 
amount contained in the proposed rule because projects utilizing that 
amount have already been subject to NOAA Grants Office review and 
preliminary approval. Therefore, after deducting 220,200 lb (100 mt) of 
RSA for the three conditionally selected research projects, the initial 
TAL is a commercial quota of 8,373,848 lb (3,123 mt) and a recreational 
harvest limit of 2,585,952 lb (965 mt). If a proposed project is not 
approved by the NOAA Grants Office, the research quota associated with 
the disapproved proposal will be restored to the scup TAL through 
publication in the Federal Register.
    The commercial TAC, discards, and TAL (commercial quota) are 
allocated on a percentage basis to three quota periods, as specified in 
the FMP: Winter I (January-April)--45.11 percent; Summer (May-
October)--38.95 percent; and Winter II (November-December)--15.94 
percent. The recreational harvest limit is allocated on a coastwide 
basis. Consistent with the revised quota setting procedures established 
for the FMP (67 FR 6877, February 14, 2002), scup overages are 
determined based upon landings for the Winter I and Summer 2008 
periods, plus any previously unaccounted for landings from the 2007 
Winter II period (January-December 2007). Table 2 presents the final 
2009 commercial scup quota for each period and the reported 2008 
landings for the 2008 Winter I and Summer periods. There was no overage 
of the Winter I quota; however, an overage of 328,795 lb (149 mt) 
occurred during the Summer period. An additional 2,085 lb (946 kg) that 
was previously unaccounted for in the 2008 specifications quota 
adjustments for the scup Summer period will be added to the 2008 
overage, resulting in a total 2009 Summer period quota deduction of 
330,880 lb (150 mt).
    On August 11, 2008 (73 FR 46554), NMFS announced a transfer of 
unharvested quota from the Winter I to the Winter II 2008 quota period. 
Per the quota accounting procedures, after June 30, 2009, NMFS will 
compile all available landings data for the 2008 Winter II quota period 
and compare the landings to the 2008 Winter II quota period allocation, 
as adjusted by the aforementioned transfer. Any overages will be 
determined, and deductions, if needed, will be made to the Winter II 
2009 allocation and published in the Federal Register.

[[Page 33]]

[GRAPHIC] [TIFF OMITTED] TR02JA09.007

    Table 3 presents the commercial scup percent share, 2009 TAC, 
projected discards, 2009 initial quota (with and without the RSA 
deduction), overage deductions (as necessary), and initial possession 
limits, by quota period.
    This final rule continues the status quo Winter I period (January-
April) per-trip possession limit of 30,000 lb (13.6 mt), and a Winter 
II period (November-December) initial per-trip possession limit of 
2,000 lb (907 kg). The Winter I per-trip possession limit will be 
reduced to 1,000 lb (454 kg) when 80 percent of the commercial quota 
allocated to that period is projected to be harvested.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TR02JA09.008

BILLING CODE 3510-22-C
    Consistent with the unused Winter I commercial scup quota rollover 
provisions at Sec.  648.120(a)(3), this final rule maintains the Winter 
II possession limit-to-rollover amount ratios that were in place since 
the 2007 fishing year, as shown in Table 4. 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).

[[Page 35]]

[GRAPHIC] [TIFF OMITTED] TR02JA09.009

Black Sea Bass

    This final rule implements the specification contained in the 
October 28, 2008, proposed rule: A 2.3-million-lb (1,043-mt) black sea 
bass TAL. The FMP specifies that the annual TAL is allocated 49 percent 
to the commercial sector and 51 percent to the recreational sector. 
After deducting 69,000 lb (31 mt) of RSA for the three conditionally 
selected research projects, the TAL is divided into a commercial quota 
of 1,093,190 lb (456 mt) and a recreational harvest limit of 1,137,810 
lb (516 mt).
    If a proposed project is not approved by the NOAA Grants Office, 
the research quota associated with the disapproved proposal will be 
restored to the black sea bass TAL through publication in the Federal 
Register. Consistent with the revised quota setting procedures for the 
FMP, black sea bass overages are determined based upon landings for the 
period January-September 2008, plus any previously unaccounted for 
landings from January-December 2007. There were no overages for either 
period; thus, no overage deduction adjustment to the 2009 commercial 
quota is necessary.

Comments and Responses

    NMFS received three comments during the comment period for the 
October 28, 2008, proposed rule. One commenter supported the proposed 
summer flounder TAL and two commenters supported the RSA projects 
preliminarily approved for 2009.
    Comment 1: An association that advocates for recreational fisheries 
objected to the RSA project approval process. This commenter stated 
support for the intent of the RSA program and stated no specific 
objection to the 2009 preliminarily approved projects.
    Response: The RSA approval process is not part of the specification 
rulemaking process. NMFS and the Council work cooperatively each year 
to identify research priorities and to determine which submitted 
proposals should be selected for eventual RSA funding through the NOAA 
Grants award process. The commenter's letter has been forwarded to both 
the Northeast Fisheries Science Center (NEFSC) and the Council's 
Research Steering Committee, as these groups are involved in the annual 
RSA project selection process and are better suited to address the 
concerns raised.
    Comment 2: One commenter stated that a benchmark assessment is 
needed for black sea bass and that the current trawl index utilized is 
inadequate for determining exploitable biomass.
    Response: The most recent black sea bass stock assessment was 
conducted in 2006 as part of the 43rd Northeast Regional Stock 
Assessment Workshop (SAW); this assessment was rejected by the 
independent peer review body because it did not provide an adequate 
basis to evaluate stock status against the biological reference points. 
The peer reviewers did not recommend any other reference points; thus, 
NMFS has continued use of the biological reference points contained in 
the FMP as the best available scientific information. This includes the 
index-based assessment approach utilized to evaluate the status of the 
stock for management purposes.
    NMFS agrees that black sea bass is a data-poor stock and that the 
biology of the fish makes assessments challenging. Currently, staff 
from the NEFSC, NMFS Northeast Regional Office, Council, Commission, 
and academia are conducting a series of working group meetings for 
data-poor stocks, including black sea bass, that may yield revised 
biological reference points. Peer-review of the working group 
recommendations will occur in December 2008 and final results are 
expected in late January or early February 2009.
    Comment 3: One commenter supported the scup TAC, but disagreed with 
the commercial discard estimate utilized to derive the scup TAL.
    Response: The discard estimates provided by the NEFSC, derived from 
at-sea observer data, are the only data available to assess the 
magnitude of scup discards in commercial fisheries. As such, the 
estimates constitute the best available scientific information, 
consistent with National Standard 2.
    The Council and the NEFSC work cooperatively to prioritize observer 
coverage through the annual Standard Bycatch Reporting Methodology 
(SBRM) consultation process; however, observer resources are limited at 
this time. In addition, a working group has been formed that is 
composed of personnel from both Northeast regional fishery management 
councils and NMFS to explore additional observer funding options, 
including, but not limited to, cost recovery, industry funding, and 
alternative coverages such as video monitoring, to increase the level 
of observer coverage in some Northeast Region fisheries.
    Comment 4: One commenter requested that the summer flounder

[[Page 36]]

recreational fishery be managed separately from the commercial fishery 
with each having separate Annual Catch Limits (ACLs) and Accountability 
Measures (AMs). Specifically, the commenter requested that any 
recreational fishery overage be taken from the following year's 
recreational harvest limit as a pound-for-pound overage repayment.
    Response: Under the current FMP structure, the commercial fishery 
has an annual quota that is 60 percent of the overall TAL. The 
recreational fishery receives 40 percent of the TAL as a recreational 
harvest limit. An amendment to the FMP would be required to enact the 
commenter's request. The Council is currently beginning development of 
an amendment to address ACLs and AMs for the FMP. The Council may 
consider having separate measures for commercial and recreational 
fishing modes and may also consider mode-specific AMs, such as overage 
repayment.
    Comment 5: One commenter stated that overages in the summer 
flounder recreational fishery, wherein the annual recreational harvest 
limit is exceeded, compromises NMFS's ability to estimate probabilities 
for a given TAL's success. The commenter further suggests that this 
makes the probabilities provided inconsistent with the best available 
scientific information.
    Response: NMFS agrees that when the basic assumptions involving the 
probability calculations are violated, the probability for achieving 
the annual management target (i.e., success) can be compromised. It is 
for this reason that NMFS has been implementing only annual TALs with a 
higher than 50-percent probability of success when stock rebuilding 
stalled in the mid-2000s.
    The 2008 summer flounder benchmark assessment conducted by the 
Southern Demersal Working Group (SDWG) recommended a management target 
(F40 percent) and threshold (F35 percent) 
approach. The rationale for this approach is that setting an ACL on a 
target allows for some amount of imprecision wherein the catch may 
result in an F above or below the target roughly 50 percent of the 
time. However, the catch should still remain below the threshold level 
at which the stock experiences overfishing. The Council agreed with 
this recommendation from the peer-reviewed stock assessment and set the 
2009 TAL using the F target, creating a buffer between the 2009 
projected F and the overfishing level F of the F threshold.
    In addition, the Council acknowledged that there is some degree of 
imprecision in managing the summer flounder fishery and elected to 
recommend to NMFS a TAL that is lower than the SSC's recommendation for 
Acceptable Biological Catch (ABC). The reduction from the recommended 
ABC of 19.5 million lb (8,845 mt) to 18.45 million lb (8,369 mt) was 
deliberate, and designed to provide a buffer for uncertainties such as 
exceeding the recreational harvest limit. NMFS agrees that utilization 
of an F target approach in TAL setting, paired with the additional 
risk-averse approach of reducing TAL from ABC, should provide a very 
high likelihood that overfishing will not occur in 2009.
    Specific management measures designed to constrain recreational 
harvest to the 2009 recreational harvest limit will be developed by the 
Council and Commission in December. NMFS agrees that it is of paramount 
importance that such measures be sufficient to ensure that the 
recreational harvest limit is not exceeded.

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
final rule 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 delayed effectiveness 
period for this rule, to ensure that the final specifications are in 
place on January 1, 2009. This action establishes specifications (i.e., 
annual quotas) for the summer flounder, scup, and black sea bass 
fisheries and possession limits for the commercial scup fishery.
    Preparation of the proposed rule was dependent on the submission of 
the EA/RIR/IRFA in support of the specifications which is developed by 
the Council. This document was received by NMFS in the last days of 
September 2008. Documentation in support of the Council's recommended 
specifications is required for NMFS to provide the public with 
information from the environmental and economic analyses as required in 
rulemaking. The proposed rule published on October 28, 2008, with a 15-
day comment period ending November 12, 2008. Publication of the 
adjusted summer flounder quota at the start of the fishing year that 
begins January 1, 2009, is required by the order of Judge Robert Doumar 
in North Carolina Fisheries Association v. Daley.
    If the 30-day delay in effectiveness were to be required, the lack 
of effective quota specifications on January 1, 2009, would present 
significant difficulties to both NMFS and individual states who manage 
these species cooperatively through the Commission. The summer 
flounder, scup, and black sea bass fisheries are all expected, based on 
historic participation and harvest patterns, to be very active at the 
start of the fishing season in 2009. Individual states would be unable 
to set commercial possession and/or trip limits which apportion the 
catch over the entirety of the calendar year. NMFS would be unable to 
control harvest in any way as there would be no quotas in place for any 
of the three species until the regulations are effective. NMFS would be 
unable to control harvest or close the fishery should landings exceed 
the quotas. In addition, the Delaware summer flounder fishery would be 
open for fishing but in a negative quota situation. All of these 
factors would result in a race for fish wherein uncontrolled landings 
would occur. Disproportionately large harvest occurring within the 
first weeks of 2009 would have distributional effects on other quota 
periods and would disadvantage some gear sectors or owners and 
operators of smaller vessels that typically fish later in the fishing 
season. There is no historic precedent by which to gauge the magnitude 
of harvest that might occur should quotas for these three species not 
be in place during the first weeks of 2009. It is reasonable to 
conclude that the commercial fishing fleet possesses sufficient 
capacity to exceed the established quotas for these three species 
before the regulations would become effective, should quotas not be in 
place on January 1, 2009. Should this occur, the stock rebuilding 
objectives for all three species rebuilding plans would be compromised.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866 because this action contains no 
implementing regulations.
    This final rule does not duplicate, conflict, or overlap with any 
existing Federal rules.
    This FRFA was prepared pursuant to 5 U.S.C. 604(a), and 
incorporates 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. A copy of the EA/RIR/IRFA is available from the Council (see 
ADDRESSES).

[[Page 37]]

    The preamble to the proposed rule included a detailed summary of 
the analyses contained in the IRFA, and that discussion is not repeated 
here.

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

Summary of Significant Issues Raised in Public Comments

    No changes to the proposed rule were required to be made as a 
result of public comments as most of the comments did not address 
specific issues in this rulemaking or the economic analyses summarized 
in the IRFA. For a summary of the comments received, and the responses 
thereto, refer to the ``Comments and Responses'' section of this 
preamble.

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

    The categories of small entities likely to be affected by this 
action include commercial and charter/party vessel owners holding an 
active Federal commercial or charter/party permit for summer flounder, 
scup, or black sea bass, as well as owners of vessels that fish for any 
of these species in state waters. The Council estimates that the 2009 
quotas could affect 2,263 vessels that held a Federal summer flounder, 
scup, and/or black sea bass permit in 2007, the most recent year for 
which complete permit data exists. The more immediate impact of this 
final rule will likely be felt by the 891 vessels that actively 
participated (i.e., landed these species) in these fisheries in 2007.

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

    Specification of commercial quotas and possession limits is 
constrained by the conservation objectives set forth in the FMP and 
implemented at 50 CFR part 648 under the authority of the Magnuson-
Stevens Act. Economic impacts of reduced quota specifications, which 
reduce the number of fish that may be taken by participants of both 
commercial and recreational fisheries, may be offset by adjustments to 
such measures as commercial fish sizes, changes to mesh sizes, gear 
restrictions, or possession and trip limits that may increase 
efficiency or value of the fishery. For 2009, no such adjustments were 
recommended by the Council; therefore, this final rule contains no such 
measures. Therefore, the economic impact analysis of the action is 
evaluated solely on the different levels of quota specified in the 
alternatives. The ability of NMFS to minimize economic impacts for this 
action is constrained to approving quota levels that provide the 
maximum availability of fish while still ensuring that the required 
objectives and directives of the FMP, its implementing regulations, and 
the Magnuson-Stevens Act, particularly the stock rebuilding 
requirements of all three species rebuilding plans, are met.
    The economic analysis for the 2009 specification assessed the 
impacts for quota alternatives that achieve the aforementioned 
objectives. The no action alternative, wherein no quotas are 
established for 2009, was excluded from analysis because it is not 
consistent with the goals and objectives of the FMP and the Magnuson-
Stevens Act. Implementation of the no action alternative in 2009 would 
substantially complicate the approved management programs for these 
three species. NMFS is required under the FMP's implementing 
regulations to specify and implement a TAL (and TAC for scup) for these 
fisheries on an annual basis. The no action alternative would result in 
no TAL (and no scup TAC) for 2009, and would likely result in 
overfishing of the resources and substantially compromise the stock 
rebuilding and/or mortality objectives for each species.
    Furthermore, Alternative 2 from the Council's analysis contains the 
most restrictive TAL options (i.e., the lowest catch levels). While 
this alternative would achieve the required objectives for all three 
species, it carries the highest potential negative impact on small 
entities in the form of foregone fishing opportunity. Alternative 2 was 
not preferred by the Council or NMFS because other alternatives 
considered have lower impacts on small entities while achieving the 
stated objectives of the 2009 specification process.
    Alternative 3 (least restrictive quotas; highest catch levels) 
would produce the smallest impact on small entities. For summer 
flounder, the Alternative 3 TAL was consistent with the Council's SSC 
recommendation for ABC. The Council expressed concerns that setting the 
TAL equal to ABC would not provide any leeway for implementation 
imprecision, and that the summer flounder stock has only 4 years 
remaining to achieve the rebuilding biomass objective. NMFS agrees that 
setting TAL equal to ABC while the stock is under a rebuilding plan and 
not yet rebuilt is not the most prudent course of action. For black sea 
bass, the Alternative 3 measures would retain the status quo. The black 
sea bass TAL under this alternative would be inconsistent with the 
rebuilding plan because the resulting landings level would be higher 
than permitted under the rebuilding plan's fishing mortality 
calculation. Therefore, while the summer flounder and black sea bass 
TALs of Alternative 3 may mitigate economic impacts on small entities 
by providing greater harvest opportunities, both the Council and NMFS 
find the resulting harvest levels to be inconsistent with the goals and 
objectives of the annual specifications and stock rebuilding programs.
    Through this final rule, NMFS implements the summer flounder and 
black sea bass TALs contained in Alternative 1, the Council's preferred 
alternatives, which consist of the quota alternatives with an 
intermediate level economic impacts to small entities when compared to 
Alternatives 2 and 3 for those two species. NMFS also implements scup 
TAL Alternative 3, the least restrictive alternative analyzed by the 
Council, for the reasons outlined in the preamble to this rule (i.e., 
change in stock status resulting from the DPWG findings in the interim 
months between the Council's recommendation and this final rule). Scup 
TAL Alternative 3 has the lowest economic impact to small entities when 
compared to Alternatives 1 and 2. Relative to 2008, the 2009 commercial 
quotas and recreational harvest measures in this action would result in 
the following TAL changes for the commercial and recreational sectors:
    (1) A 17.0-percent increase for summer flounder;
    (2) a 52.3-percent increase for scup; and
    (3) a 52.0-percent decrease for black sea bass.
    TAL Alternatives 1 for summer flounder and black sea bass were 
selected because they satisfy NMFS's obligation to implement 
specifications that are consistent with the goals, objectives, and 
requirements of the FMP, its implementing regulations, and the 
Magnuson-Stevens Act. TAL Alternative 3 for scup was selected because 
it allows for an increase of the 2009 specifications above the level 
contained in the Council's recommended scup Alternative 1 and endorsed 
by NMFS in the proposed rule in reaction to the most recent peer-

[[Page 38]]

reviewed information regarding stock status. This stock status 
information was not available when the Council deliberated 2009 TAL 
options in August, nor was the information available when NMFS 
published the proposed rule in October. The DPWG concluded its work in 
early December. As previously stated in the preamble, when final DPWG 
reports regarding stock are available in early 2009, NMFS may take 
additional action to modify the 2009 scup specifications implemented by 
this final rule. The Alternative 1 TAL for summer flounder is 
sufficiently risk-averse, providing a high probability that the 
rebuilding F rate and an even higher probability that the overfishing 
threshold (F35 percent ) will not be exceeded in 2009. Given 
the regulatory and statutory requirements, Alternative 1 minimizes, to 
the extent practicable, the economic impacts on small entities that 
participate in the summer flounder fishery. The black sea bass quota in 
Alternative 1 was selected because it is consistent with the TAL 
calculation methodology of the rebuilding plan and results in a measure 
that will adequately constrain harvest in 2009, and provide continued 
rebuilding of the overfished stock. The scup TAL contained in 
Alternative 3 provides the maximum harvest level analyzed by the 
Council and is consistent with the revised stock status information 
verbally endorsed for management advice by the DPWG peer review panel. 
In addition, the scup Alternative 3 TAL remains consistent with F rate 
contained in the Amendment 14 scup rebuilding plan, which remains 
effective until formal advice is conveyed in the final DPWG reports.
    The revenue decreases associated with the RSA program are expected 
to be minimal, and are expected to yield important benefits associated 
with improved fisheries data. It should also be noted that fish 
harvested under the RSA program would be sold, and the profits would be 
used to offset the costs of research. As such, total gross revenues to 
the industry will not decrease substantially, if at all, as a result of 
this final rule authorizing RSA for 2009.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide will be sent 
to all holders of Federal permits issued for the summer flounder, scup, 
and black sea bass fisheries. In addition, copies of this final rule 
and guide (i.e., permit holder letter) are available from NMFS (see 
ADDRESSES) and at the following Web site: https://www.nero.noaa.gov.

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

    Dated: December 24, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
 [FR Doc. E8-31236 Filed 12-31-08; 8:45 am]
BILLING CODE 3510-22-P