Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; 2010 Summer Flounder, Scup, and Black Sea Bass Specifications; Preliminary 2010 Quota Adjustments; 2010 Summer Flounder Quota for Delaware, 67978-67985 [E9-30388]

Download as PDF 67978 Federal Register / Vol. 74, No. 244 / Tuesday, December 22, 2009 / Rules and Regulations Subpart C—Alternative VIN Requirements in Effect for Limited Period 3. Section 565.23 is amended by revising paragraphs (a) and (g) to read as follows: ■ § 565.23 General requirements. (a) Each vehicle manufactured in one stage shall have a VIN that is assigned by the manufacturer. Each vehicle manufactured in more than one stage shall have a VIN assigned by the incomplete vehicle manufacturer. Vehicle alterers, as specified in 49 CFR 567.7, shall utilize the VIN assigned by the original manufacturer of the vehicle. * * * * * (g) Each character in each VIN shall be one of the letters in the set: [ABCDEFGHJKLMNPRSTUVWXYZ] or a numeral in the set: [0123456789] assigned according to the method given in § 565.25. * * * * * Issued: December 11, 2009. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E9–30027 Filed 12–21–09; 8:45 am] BILLING CODE 4910–59–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 0908191244–91427–02] RIN 0648–XR08 Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; 2010 Summer Flounder, Scup, and Black Sea Bass Specifications; Preliminary 2010 Quota Adjustments; 2010 Summer Flounder Quota for Delaware wwoods2 on DSK1DXX6B1PROD with RULES_PART 1 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues final specifications for the 2010 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 2010 due to continued quota VerDate Nov<24>2008 14:53 Dec 21, 2009 Jkt 220001 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 MagnusonStevens 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, 2010, through December 31, 2010. ADDRESSES: Copies of the specifications document, including the Environmental Assessment (EA), 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 http:// 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. PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 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° 13.3′ N. lat. (the latitude of Cape Hatteras Lighthouse, Buxton, NC) northward to the U.S./Canada border. The Council prepared the FMP under the authority of the MagnusonStevenson 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 F targets set forth for each species in the FMP. 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 2010 specifications for these fisheries was provided in the proposed specifications (74 FR 57134; November 4, 2009). That information is not repeated here. NMFS will establish the 2010 recreational management measures (i.e., minimum fish size, possession limits, and fishing seasons) 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 November 4, 2009, proposed rule: A summer flounder Total Allowable Landings (TAL) of 22.13 million lb (10,038 mt) for 2010, inclusive of 663,900 lb (301 mt) set aside for E:\FR\FM\22DER1.SGM 22DER1 67979 Federal Register / Vol. 74, No. 244 / Tuesday, December 22, 2009 / Rules and Regulations research. Summer flounder remain under a stock rebuilding program and must achieve the rebuilding biomass target (i.e., BMSY(Maximum Sustainable Yield)) by January 1, 2013. Analysis conducted by the Southern Demersal Working Group (SDWG) indicates that the 2010 summer flounder TAL implemented by this rule is projected to provide the necessary stock growth to achieve the rebuilding objective within the specified timeframe. This TAL 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. This TAL has a 50-percent probability of constraining fishing mortality below the management target of F40 percent = 0.255 and a 95percent probability of constraining fishing mortality below the overfishing threshold of FMSY = F35 percent = 0.310. Three research projects that would utilize the full summer flounder research set-aside (RSA) of 663,900 lb (301 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 2010 RSA, the TAL is divided into an initial commercial quota of 13,278,000 lb (6,023 mt) and a recreational harvest limit of 8,852,000 lb (4,015 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 2009, plus any previously unaccounted for overages from January– December 2008. Table 1 summarizes, for each State, the commercial summer flounder percent shares as outlined in § 600.100(d)(1)(I), the resultant 2010 commercial quota (both initial and less the RSA), the quota overages as described above, and the final adjusted 2010 commercial quota, less the RSA. TABLE 1—FINAL STATE-BY-STATE COMMERCIAL SUMMER FLOUNDER ALLOCATIONS FOR 2010 Percent Share Initial quota, less RSA Initial quota 2009 Quota overages (through 10/31/09)1 State lb ME ............ NH ............ MA ............ RI .............. CT ............ NY ............ NJ ............. DE ............ MD ............ VA ............ NC ............ Total 2 kg lb kg lb kg Adjusted quota, less RSA lb kg 0.04756 0.00046 6.82046 15.68298 2.25708 7.64699 16.72499 0.01779 2.03910 21.31676 27.44584 6,315 61 905,621 2,082,386 299,695 1,015,367 2,220,744 2,362 270,752 2,830,439 3,644,259 2,864 28 410,790 944,570 135,942 460,571 1,007,330 1,071 122,813 1,283,887 1,653,036 6,126 59 878,452 2,019,915 290,704 984,906 2,154,122 2,291 262,629 2,745,526 3,534,931 2,779 27 398,466 916,233 131,863 446,754 977,110 1,039 119,129 1,245,371 1,603,445 0 0 31,785 0 0 0 0 55,687 0 0 0 0 0 14,417 0 0 0 0 25,259 0 0 0 6,126 59 846,667 2,019,915 290,704 984,906 2,154,122 ¥53,396 262,629 2,745,526 3,534,931 2,779 27 398,466 916,233 131,863 446,754 977,110 ¥24,220 119,129 1,245,371 1,603,445 100.00 13,278,001 6,022,901 12,879,661 5,842,214 87,472 39,677 12,792,189 5,802,439 1 wwoods2 on DSK1DXX6B1PROD with RULES_PART 1 2009 quota overage is determined through comparison of landings for January through October 2009, plus any landings in 2008 in excess of the 2008 quota (that were not previously addressed in the 2009 specifications) for each State. For Delaware, includes continued repayment of overharvest from 2009 and previous years. 2 Total quota is the sum of all States having allocation. A State with a negative number has a 2010 allocation of zero (0). Kilograms are as converted from pounds and may not necessarily add due to rounding. 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 2010 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 2009 summer flounder quota overage (inclusive of overharvest from previous years) is greater than the amount of commercial VerDate Nov<24>2008 14:53 Dec 21, 2009 Jkt 220001 quota allocated to Delaware for 2010. As a result, there is no quota available for 2010 in Delaware. The regulations at § 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, 2010, landings of summer flounder in Delaware by vessels holding commercial Federal summer flounder fisheries permits are prohibited for the 2010 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 2010 calendar year, PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 unless additional quota becomes available through a transfer, as mentioned above. Scup This final rule implements the specifications contained in the November 4, 2009, proposed rule: A 17.09-million-lb (7,752-mt) scup TAC and an 14.11-million-lb (6,400-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. After deducting 423,300 lb (192 mt) of RSA for the three conditionally selected research projects, the initial TAL is a commercial quota of 10,675,626 lb (4,842 mt) and a recreational harvest limit of 3,011,074 lb (1,366 mt). If a proposed project is not approved by the NOAA Grants Office, the research quota E:\FR\FM\22DER1.SGM 22DER1 67980 Federal Register / Vol. 74, No. 244 / Tuesday, December 22, 2009 / Rules and Regulations 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 2009 periods, plus any previously unaccounted for landings from the 2008 Winter II period. Table 2 presents the final 2010 commercial scup quota for each period and the reported landings for the 2009 Winter I and Summer periods. There were no overages of the 2009 Winter I or Summer Period quotas or previously unaccounted for overages of any 2008 quota periods; therefore, no adjustment to the 2010 scup specifications is required in this final rule. Any overage of the 2009 Winter II period will be addressed in July 2010, prior to the 2010 Winter II fishery. Per the quota accounting procedures, after June 30, 2010, NMFS will compile all available landings data for the 2009 Winter II quota period and compare the landings to the 2009 Winter II quota period allocation, inclusive of any transfer from the 2009 Winter I quota period. Any overages will be determined, and deductions, if needed, will be made to the Winter II 2010 allocation and published in the Federal Register. TABLE 2—SCUP PRELIMINARY 2009 COMMERCIAL LANDINGS BY QUOTA PERIOD Reported 2009 landings through 10/31/09 2009 Quota Quota period lb Winter I ............................................................................. Summer ............................................................................ mt 3,777,443 2,930,733 1,713 1,329 Winter II ............................................................................ Total .......................................................................... lb mt 3,758,754 2,876,619 lb mt 1,402 1,073 0 0 0 0 N/A N/A Overage adjustment, if necessary, occurs in 2010 6,708,176 2,502 6,635,373 2,475 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. This final rule continues the status quo Winter I period (January–April) pertrip possession limit of 30,000 lb (13.6 mt), and a Winter II period (NovemberDecember) initial per-trip possession limit of 2,000 lb (907 kg). The Winter I Table 3 presents the commercial scup percent share, 2010 TAC, projected discards, 2010 initial quota (with and without the RSA deduction), overage deductions (as necessary), and initial possession limits, by quota period. Preliminary overages as of 10/31/09 TABLE 3—INITIAL COMMERCIAL SCUP QUOTA ALLOCATIONS FOR 2010 BY QUOTA PERIOD Total allowable catch Discards Initial quota Initial quota less overages (through 10/31/ 2008) 1 Possession Limits (per trip) 2 Adjusted quota less overages and RSA Percent share Quota period lb mt lb mt Winter I ................................... Summer .................................. Winter II .................................. 45.11 38.95 15.94 6,013,253 2,728 5,192,113 2,355 2,124,834 964 1,048,537 905,354 370,509 476 411 168 4,964,716 2,252 4,286,759 1,944 1,754,325 168 N/A N/A N/A N/A N/A N/A Total 3 .............................. 100.0 13,330,200 6,046 2,324,400 1,054 11,005,800 4,992 N/A N/A 10,675,626 4,842 lb mt 4,815,775 2,184 30,000 13,608 4,158,156 1,886 N/A N/A 1,701,695 775 2,000 907 N/A N/A 1See Table 1 for explanation of overages. 2 The Winter I possession limit will drop to 1,000 lb (454 kg) upon attainment of 80 percent of that period’s allocation. The Winter II possession limit may be adjusted (in association with a transfer of unused Winter I quota to the Winter II period) via notification in the FEDERAL REGISTER. 3 Metric tons are as converted from pounds and may not necessarily add due to rounding. N/A=Not applicable. wwoods2 on DSK1DXX6B1PROD with RULES_PART 1 Consistent with the unused Winter I commercial scup quota rollover provisions at § 648.120(a)(3), this final rule maintains the Winter II possession limit-to-rollover amount ratios that have been in place since the 2007 fishing year, as shown in Table 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). TABLE 4—POTENTIAL INCREASE IN WINTER II POSSESSION LIMITS BASED ON THE AMOUNT OF SCUP ROLLED OVER FROM WINTER I TO WINTER II PERIOD Initial Winter II possession limit lb Rollover from Winter I to Winter II lb kg 2,000 VerDate Nov<24>2008 907 14:53 Dec 21, 2009 mt 0–499,999 Jkt 220001 PO 00000 Increase in initial Winter II possession limit Frm 00012 lb 0–227 Fmt 4700 Sfmt 4700 Final Winter II possession limit after rollover from Winter I to Winter II kg 0 E:\FR\FM\22DER1.SGM lb 0 22DER1 kg 2,000 907 Federal Register / Vol. 74, No. 244 / Tuesday, December 22, 2009 / Rules and Regulations 67981 TABLE 4—POTENTIAL INCREASE IN WINTER II POSSESSION LIMITS BASED ON THE AMOUNT OF SCUP ROLLED OVER FROM WINTER I TO WINTER II PERIOD—Continued Initial Winter II possession limit lb Rollover from Winter I to Winter II lb kg 2,000 2,000 2,000 2,000 907 907 907 907 This final rule implements the specification contained in the November 4, 2009, proposed rule: A 2.3-million-lb (1,043-mt) black sea bass TAL. This is the status quo. 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 2009, plus any previously unaccounted for landings from January–December 2008. There were no overages for either period; thus, no overage deduction adjustment to the 2010 commercial quota is necessary. wwoods2 on DSK1DXX6B1PROD with RULES_PART 1 Comments and Responses NMFS received 18 comments during the 15-day comment period for the November 4, 2009, proposed rule. The majority of the comments applicable to the proposed specifications pertained to the catch levels recommended by the Council’s Scientific and Statistical Committee (SSC) for scup and black sea bass. The majority of the applicable comments submitted raised the same or similar issues; therefore, the significant issues and concerns are summarized and responded to here. Most comments pertained to a recent NMFS emergency action closure of the recreational black sea bass fishery in the EEZ (74 FR 51092; October 5, 2009). These comments are outside the scope of the proposed specifications and will be considered as comments on the emergency rule. NMFS will take these VerDate Nov<24>2008 14:53 Dec 21, 2009 mt 500,000–999,999 1,000,000–1,499,999 1,500,000–1,999,999 2,000,000–2,500,000 Black Sea Bass Jkt 220001 Increase in initial Winter II possession limit lb 227–454 454–680 680–907 907–1,134 kg 1,500 3,000 4,500 6,000 comments into consideration if the initial emergency action is extended beyond April 12, 2010, the date on which the 180-day closure is due to expire. NMFS will also take these comments into consideration during the development of the 2010 recreational management measures proposed rule, to be published in the spring of 2010, after the Council deliberates on such measures in early December 2009. Comment 1: Some commenters stated that a 15-day comment period, beginning on the date of the proposed rule publication in the Federal Register on November 4, 2009, and ending on November 19, 2009, was too short. One U.S. Representative to Congress specifically requested that NMFS extend the proposed rule comment period beyond 15 days. Response: NMFS has, for the past several years, utilized a 15-day comment period when publishing proposed specifications for summer flounder, scup, and black sea bass in order to ensure that NMFS satisfies a standing court order 1 that requires NMFS to implement the annual specifications for summer flounder effective on or before January 1 of each year. NMFS gave careful consideration to extending the comment period for the proposed 2010 summer flounder, scup, and black sea bass specifications, but determined that extending the comment period would likely jeopardize complying with this court order, as the time required to address comments, develop, and publish a final rule would not occur before January 1. Were specifications not in place for scup and black sea bass on January 1, no quotas would be established, nor would trip limits be in place for scup. Absence of quotas for the commercial fisheries was determined to be inconsistent with the goals and objectives of the FMP that are designed to prevent overfishing by establishment of both trip limits and a total quota level for the year that is related to an overall mortality objective 1 North Carolina Fisheries Assoc. Inc. et al. v. Daley Civil NO. 2:97cv339 (RGD). PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 Final Winter II possession limit after rollover from Winter I to Winter II lb 680 1,361 2,041 2,722 kg 3,500 5,000 6,500 8,000 1,588 2,268 2,948 3,629 for the stocks. A situation wherein there were no quotas established would allow uncontrolled harvest and prevent NMFS from enforcing possession limits or, if necessary, closing the fishery to ensure catch levels were not exceeded. Therefore, NMFS has determined that a 15-day comment period is reasonable under these circumstances. Comment 2: Some commenters stated that the proposed rule only contained tables detailing commercial fishery quotas and that recreational anglers were disadvantaged by not being able to comment, presumably on the quotas for the recreational fishing sector. Response: The proposed rule contains clear text descriptions of the proposed recreational harvest limit values and invites comment on all proposed measures. These values are not presented in tabular form because, unlike the commercial quotas, the recreational harvest limits are not subdivided into State allocations or fishing period allocations, and do not have applicable possession limits established through the specifications rule. The November 4, 2009, proposed rule provided notice that the rule pertains to the 2010 proposed specifications, which are described as the commercial quotas and commercial management measures, such as trip limits, and the proposed 2010 recreational harvest limits. The proposed rule further clarified that the Council will consider recreational management measures (i.e., minimum fish sizes, possession limits, and fishing seasons) at its December 2009 meeting. The proposed 2010 recreational harvest level for summer flounder is found in the text on page 57136 of the November 4, 2009, proposed rule in the second paragraph of the third column; the proposed recreational harvest limit for scup is found in the text on page 57138 in the first paragraph of the second column; and the proposed recreational harvest limit for black sea bass is found in the text on page 57139 in the third paragraph of the first column. E:\FR\FM\22DER1.SGM 22DER1 wwoods2 on DSK1DXX6B1PROD with RULES_PART 1 67982 Federal Register / Vol. 74, No. 244 / Tuesday, December 22, 2009 / Rules and Regulations Comment 3: Several commenters suggested that NMFS has misinterpreted requirements of the Magnuson-Stevens Act that Councils develop annual catch limits for each of their managed fisheries that may not exceed the fishing level recommendations of their SSC. One commenter stated that a citation to this aspect of the Magnuson-Stevens Act section 302(h)(6)) in the proposed rule, and previous statements by NMFS personnel that the 2010 catch levels could not exceed the Acceptable Biological Catch (ABC) levels recommended by the Council’s SSC, purposefully and egregiously misled the public and, by inference, the Council, that the ABC represented a hard ceiling of catch levels that the Council could not exceed in recommending specification levels. In support of these commenters’ positions, some referenced an October 22, 2009, letter from NOAA Administrator Dr. Jane Lubchenco to U.S. Senator Olympia Snowe, wherein Dr. Lubchenco stated, in regard to Atlantic herring, ‘‘Because Atlantic herring is not subject to overfishing, a mechanism for specifying annual catch limits (ACLs) does not need to be implemented until 2011.’’ The commenters reason that, by the logic in this statement, the Council could have recommended catch levels (i.e., specifications) higher than the ABC levels recommended by the SSC, and that NMFS’s advice to the contrary was incorrect. Response: NMFS agrees that, for stocks not subject to overfishing, ACLs need not be established until 2011 and that there are not ACL mechanisms in the summer flounder, scup, or black sea bass regulations; however, the requirement that SSCs establish annual ABCs became effective when the Magnuson-Stevens Act was reauthorized in 2007. The SSC recommendation is a thorough scientific review process which examines best available scientific information. In order to be approvable, all actions taken under the Magnuson-Stevens Act must be consistent with all 10 National Standards, as well as applicable law. National Standard 2 requires that conservation and management measures shall be based on the best scientific information available. Thus, even in the absence of ACLs, were a Council inclined to ignore the ABC advice of its SSC and set catch levels higher than the recommended ABC level, substantial explanation and documentation would be necessary to substantiate why the SSC’s ABC recommendation did not reflect the best scientific information available and to demonstrate that doing VerDate Nov<24>2008 14:53 Dec 21, 2009 Jkt 220001 so is consistent with National Standard 2. Dr. Lubchenco’s letter to Senator Snowe contains the following important information which was not cited by the commenters: * * * effective in January 2007, the Magnuson-Stevens Act enhanced the role of SSCs, mandating that they shall provide ongoing scientific advice for fishery management decisions, including recommendations for acceptable biological catch (Magnuson-Stevens Act § 302(g)(1)(B)). We [NMFS] have advised the Council that their recommendations for Atlantic herring catch limits will have to fully consider all Magnuson-Stevens Act requirements, including preventing overfishing (National Standard 1) and using best scientific information available (National Standard 2). The Council has provided a catch recommendation for 2010 consistent with the ABC recommendation of its SSC; no alternative catch levels have been recommended. Thus, through this final rule, NMFS is implementing the 2010 recommendations of the Council, consistent with National Standard 2. Comment 4: Several comments stated that the Council must direct its SSC to reconsider the 2010 ABCs for scup and black sea bass. Among the issues raised by the commenters were allegations that the SSC ignored all but the most precautionary statements of the 2008 Data Poor Stocks Working Group (DPSWG) peer-reviewed assessment for the two species, that the SSC overstepped its bounds and acted inappropriately setting the 2010 ABC with too much precaution, that the circumstances surrounding the 2009 ABC for black sea bass were not adequately considered (i.e., the stock conditions for the 2009 recommendation were significantly different than for the 2010 recommendation), and that both species stocks are rebuilt, not overfished, nor experiencing overfishing, and that NMFS must increase the quotas above the level recommended by the SSC and, subsequently, the Council. Response: The Council considered a motion to require the SSC to reconvene and reconsider its 2010 scup and black sea bass ABC recommendations during its August 2009 meeting in Alexandria, VA. The motion failed. The SSC is a formal standing committee of the Council, and only the Council may ask the SSC to reconvene or reconsider its recommendations. NMFS does not have the authority to task the SSC to convene or consider specific topics. As indicated in numerous comments, NMFS agrees that the stock status for both scup and black sea bass are much improved based on the results of the DPSWG assessments and 2009 stock PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 assessment updates. As stated, both stocks are rebuilt and not experiencing overfishing. The revised National Standard 1 guidance (74 FR 51092; January 16, 2009) contemplates the type of situation that has occurred for the 2010 ABC recommendations for scup and black sea bass: In situations where there are large amounts of either scientific or management uncertainty, or a combination of both, catch levels should be reduced from the overfishing level by an amount that adequately compensates for the uncertainties. The SSC had a thorough, deliberative discussion in making the 2010 ABC recommendations for scup and black sea bass, and best available scientific information regarding stock status was not ignored. Instead, the SSC found the statements from the DPSWG and the peer-review panel on the level of scientific uncertainties associated with the new assessments and the suggestions to proceed cautiously in increasing catches for either stocks compelling (See Northeast Fisheries Science Center Reference Documents 09–02a (DPSWG final report), 09–16 (2009 black sea bass stock status update), and 09–18 (2009 scup stock status update), all available at http:// www.nefsc.noaa.gov for more information). For both stocks, the SSC expressed numerous concerns with the reliability and accuracy of the information that the new stock assessment models provide for making catch recommendations. The SSC recommendations, though conservative, are consistent with the National Standard 1 Guidelines (74 FR 3178; January 16, 2009), all of the other National Standards, and the FMP. Comment 5: Several commenters stated that no catch levels should be implemented for scup and black sea bass until such time that the Council’s revised ABC recommendation standard operating procedures, which will change the way the Monitoring Committee and SSC operate in making specification recommendations to the Council, are applied to the 2010 recommendations. Response: NMFS does not agree that catch limits, through the specifications in this final rule, should not be implemented until the Council has directed its Monitoring Committees and SSC to reconsider the 2010 ABC recommendations. The process wherein the SSC and Monitoring Committees provided advice on scientific and management uncertainty, respectively, in setting 2010 ABC occurred as contemplated both by the MagnusonStevens Act, the Council’s standard operating procedures as drafted in July E:\FR\FM\22DER1.SGM 22DER1 wwoods2 on DSK1DXX6B1PROD with RULES_PART 1 Federal Register / Vol. 74, No. 244 / Tuesday, December 22, 2009 / Rules and Regulations 2009, and as outlined in the implementing regulations of the FMP. In the interim since the 2010 ABC recommendations were made, the Council has modified its standard operating procedures for the ABC recommendation process, and it is noted that the Monitoring Committee disagreed with the SSC’s black sea bass 2010 ABC recommendation. However, the process did produce a vetted Council recommendation for 2010 catch levels for all three species. Some commenters have indicated that, had the current advice regarding the Council’s ability to set catch levels higher than the ABC recommended by the SSC been available, the Council recommendations may have been different (See Comment and Response 3 for additional discussion). To date, the Council has not directed either its Monitoring Committee or its SSC to reconsider the proposed specifications for 2010; therefore, NMFS must act on the current recommendations of the Council, as submitted. In this case, NMFS has determined that the catch recommendations forwarded from the Council for 2010 are consistent with the Magnuson-Stevens Act, other applicable law, and the FMP. Comment 6: Some comments stated that the proposed 2010 catch levels for scup and black sea bass, if implemented, would violate National Standard 1 because they would fail to achieve, on a continuing basis, optimum yield (OY). These comments further elaborate that there are currently no conservation issues with the scup or black sea bass stocks (i.e., rebuilding programs or the need to end overfishing), so the fisheries must be managed to attain OY to provide the greatest benefit to the Nation. Some comments point toward the OY value for the southern stock of black sea bass, as managed in the Snapper-Grouper FMP in the South Atlantic, to make inferences that the northern stock catch for 2010 is being set well below the southern stock’s OY. Response: The commenters have misinterpreted the application of National Standard 1. NMFS interprets ‘‘achieving on a continual basis’’ to mean producing a long-term series of catches such that the average catch is equal to OY, overfishing is prevented, and long-term average biomass is near or above BMSY. As such, National Standard 1 does not contemplate that the OY will necessarily be achieved in a single year given the natural fluctuation of fish stocks in response to environmental conditions. In the opinion issued by Judge Robert Doumar in North Carolina Fisheries Assoc. Inc. VerDate Nov<24>2008 14:53 Dec 21, 2009 Jkt 220001 et al. v. Daley Civil NO. 2:97cv339 (RGD), the Court found the following in response to the plaintiff’s allegation that a quota did not achieve OY for the 1997 fishing year: ‘‘* * * The District of Columbia Circuit has defined optimum yield as ‘‘maximum yield less whatever amount need be conserved for economic, social or ecological reasons.’’ 2 This Court has also held that ‘‘optimum yield is not the same as ‘maximum yield.’ ’’ 3 Furthermore, optimum yield is measured on a continuing basis, the optimum yield from each fishery, not the optimum yield in a single year.’’ Further complicating the arguments presented by commenters is the fact that OY for black sea bass and scup in the Mid-Atlantic region have not been specified as a specific amount based on a reduction of MSY by relevant economic, ecological, and social factors. Under the Magnuson-Stevens Act OY is less than or equal to MSY proxy. While OY is a requirement for all FMPs, to date, information of sufficient quality has not been available to specify MSY or OY for scup or black sea bass. Instead, an MSY proxy has been used for these stocks and the Council has not modified the proxy to specify an OY different from it. The Council will reevaluate OY specifications for its managed species as part of the Omnibus Amendment being developed to implement ACLs. It is inappropriate to assume that the OY value of the southern stock of black sea bass is at all informative as a comparison for the northern stock, as was done by a number of the commenters. The species is the same, but the stocks are distinct in many ways and, as such, the MSY and OY values would be expected to differ. NMFS acknowledges that the 2010 catch level recommendations from the Council, as implemented in this final rule, are conservative relative to the BMSY values for the two stocks; however, the SSC provided clear rationalization for its 2010 ABC recommendation. The National Standard 1 guidelines (74 FR 3178; January 16, 2009), contemplate reducing catch levels from OY in situations where the uncertainties pertaining to the fishery necessitate so doing. Response to Comment 35 (page 3190 of the January 16, 2009, rule, 74 FR 3178) states, ‘‘NMFS believes that fisheries managers cannot consistently meet the requirements of the Magnuson-Stevens Act to prevent 2 C&W Fish Co., Inc. v. Fox, 289 U.S. App. DC 323, 931 F2d 1556, 1563 (DC Cir. 1991). 3 J.H. Miles & co. v. Brown, 910 F. Supp. 1138,1148 (E.D. Va. 1995). PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 67983 overfishing and achieve, on a continuing basis, OY unless they address scientific and management uncertainty. The reductions in fishing levels that may be necessary in order to prevent overfishing should be only the amount necessary to achieve the results mandated by the Magnuson-Stevens Act. Properly applied, the system described in the guidelines does not result in ‘too many deductions,’ but rather, sets forth an approach that will prevent overfishing, achieve on a continuing basis OY, and incorporate sufficient flexibility so that the guidelines can be applied in different fisheries.’’ Further, the National Standard 1 guidelines, (74 FR 3178; January 16, 2009) on page 3208 in (v) Specification of OY states: ‘‘If the estimates of MFMT [Maximum Fishing Mortality Threshold] and current biomass are known with a high level of certainty and management controls can accurately limit catch then OY could be set very close to MSY * * * To the degree that such MSY estimates and management controls are lacking or unavailable, OY should be set further from MSY. If management measures cannot adequately control fishing mortality so that the specified OY can be achieved without overfishing, the Council should reevaluate the management measures and specification of OY so that the dual requirements of NS1 [National Standard 1] (preventing overfishing while achieving, on a continual basis, OY) are met.’’ In this instance, the SSC has indicated that substantial uncertainty exists in the new stock assessments for both scup and black sea bass. The biomass estimates provided by the stock assessment are uncertain, as are the MFMT or overfishing threshold levels calculated, as this is the first year of fishing under the information provided by the new assessment methodology and outputs. By inference, the SSC may have been concerned that there is a likelihood that overfishing could occur if catch levels are set too high. The perception from the updated assessments is that both stocks are well above the respective overfishing thresholds; however, the SSC has provided for conservative catches in 2010 in an effort to validate the information provided by the new, as of yet untested, stock assessments. This is a reasonable approach, and consistent with the guidance on setting catches relative to OY/MSY proxy. Presumably, if the stock assessment information is validated by the 2010 catches, overfishing does not occur, and the new model framework performs as expected in response to the 2010 fishing activities, the future management response and catch recommendations could be to increase catches and to move long-term average catches toward OY/MSY proxy levels. Conversely, E:\FR\FM\22DER1.SGM 22DER1 wwoods2 on DSK1DXX6B1PROD with RULES_PART 1 67984 Federal Register / Vol. 74, No. 244 / Tuesday, December 22, 2009 / Rules and Regulations should the updated stock assessment information indicate that the 2010 fishery levels were either too high, the stock information overly optimistic, the MFMT inaccurate, or the stock to be subject to overfishing, the response may be more conservative management in the future until such time that these issues may be resolved. If the confidence in the most recent stock assessments for both species does not improve over time, the Council should consider setting OY below the MSY proxy levels so that the long-term average desired yield is achieved on a continuing basis. Comment 7: Some commenters did not support the use of RSA in 2010, stating that the 3-percent set aside would be better applied to the recreational fisheries. Specifically, one commenter disagreed with the awarding of RSA to fund a near-shore trawl survey project, stating that NMFS should be obligated to provide funding for and/or conduct near-shore surveys. Response: NMFS continues to support the use of RSA as a means for the Council and the agency to cooperatively fund research that meets the identified research priorities of the Council. The RSA project selection and approval process is not part of the specification rulemaking process. Inclusion of those projects that have been given a preliminary approval for 2010 RSA award in the proposed rule is done to solicit comment on Exempted Fishing Permits (EFPs) that may be awarded at a later date to support the described research and compensation fishing activities. No specific exceptions to the proposed EFPs were raised in the comments on the proposed rule; rather, the comments are geared toward specific projects that have been preliminarily identified for 2010 RSA award and the overall goals and objectives of the RSA program. 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. 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 VerDate Nov<24>2008 14:53 Dec 21, 2009 Jkt 220001 that it is consistent with the MagnusonStevens 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, 2010. 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 that is developed by the Council. This document was received by NMFS in mid-September 2009. 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 November 4, 2009, with a 15-day comment period ending November 19, 2009. Publication of the adjusted summer flounder quota at the start of the fishing year that begins January 1, 2010, is required by the order of Judge Robert Doumar in North Carolina Fisheries Association v. Daley. If the 30-day delay in effectiveness were not waived, the lack of effective quota specifications on January 1, 2010, 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 2010. 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 2010 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 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 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 2010. 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, 2010. Should this occur, the fishing mortality objectives for all three species and the summer flounder rebuilding plan would be compromised. This final rule is exempt from review under Executive Order 12866. 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 and a summary of the analyses completed to support the action. No significant issues were raised by the public comments in response to the IRFA. A copy of the EA/RIR/IRFA is available from the Council (see ADDRESSES). 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. None of the comments received raised specific issues regarding 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 2,213 vessels E:\FR\FM\22DER1.SGM 22DER1 Federal Register / Vol. 74, No. 244 / Tuesday, December 22, 2009 / Rules and Regulations that held a Federal summer flounder, scup, and/or black sea bass permit in 2008, the most recent year for which complete permit data exist. The more immediate impact of this final rule will likely be felt by the 808 vessels that actively participated (i.e., landed these species) in these fisheries in 2008. wwoods2 on DSK1DXX6B1PROD with RULES_PART 1 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 changes in year-to-year quota specifications 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 2010, 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 are met. In particular, the Council’s SSC has made recommendations for the 2010 ABC level for all three stocks. NMFS considers this recommendation to be consistent with National Standard 2. Establishment of catch levels higher than the SSC ABC recommendations would require substantial, compelling argument and documentation that the recommendations were not, in fact, based on the best available scientific information. NMFS-approved measures for the summer flounder fishery must also ensure that the statutory requirements of the stock rebuilding program are met by the January 1, 2013, rebuilding deadline. The economic analysis for the 2010 specification assessed the impacts for quota alternatives that achieve the aforementioned objectives. The no VerDate Nov<24>2008 14:53 Dec 21, 2009 Jkt 220001 action alternative, wherein no quotas are established for 2010, 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 2010 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 fishing limits for 2010, and could result in overfishing of the resources and substantially compromise the mortality and/or stock rebuilding 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 2010 specification process. Alternative 3 (least restrictive quotas; highest catch levels) would produce the smallest impact on small entities. For all three species, the respective quotas under Alternative 3 are inconsistent with the SSC’s catch level recommendations. For summer flounder, the Alternative 3 measures do not achieve the objectives required under the summer flounder rebuilding program. Because the respective Alternative 3 measures would establish annual fishing limits that are exceed the fishing level recommendations of the Council’s SSC, they are inconsistent with the Magnuson-Stevens Act requirements and cannot be implemented for 2010, despite having the lowest associated impact on small entities. Through this final rule, NMFS implements the summer flounder, scup, and black sea bass TALs contained in Alternative 1, the Council’s preferred alternatives, which consist of the quota alternatives that pair the lowest economic impacts to small entities and meet the required objectives of the FMP and the Magnuson-Stevens Act. Relative to 2009, the 2010 commercial quotas and recreational harvest measures in this action would result in the following TAL changes for the commercial and recreational sectors: (1) A 19.9-percent increase for summer flounder; PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 67985 (2) A 26.2-percent increase for scup; and (3) Status quo for black sea bass. The respective TALs contained in Alternative 1 for all three species 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. The F rates associated with the TALs for all three species all have very low likelihoods of causing overfishing to occur in 2010. TAL Alternative 1 for summer flounder is also projected to provide the necessary continued stock rebuilding to achieve the SSBMSY by the rebuilding period ending date of January 1, 2013. 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 2010. 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: http://www.nero.noaa.gov. Dated: December 16, 2009. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E9–30388 Filed 12–21–09; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\22DER1.SGM 22DER1

Agencies

[Federal Register Volume 74, Number 244 (Tuesday, December 22, 2009)]
[Rules and Regulations]
[Pages 67978-67985]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-30388]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0908191244-91427-02]
RIN 0648-XR08


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; 2010 Summer Flounder, Scup, and 
Black Sea Bass Specifications; Preliminary 2010 Quota Adjustments; 2010 
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 2010 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 2010 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, 2010, through December 31, 2010.

ADDRESSES: Copies of the specifications document, including the 
Environmental Assessment (EA), 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 http://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 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 F targets set forth for each species 
in the FMP. 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 2010 specifications 
for these fisheries was provided in the proposed specifications (74 FR 
57134; November 4, 2009). That information is not repeated here.
    NMFS will establish the 2010 recreational management measures 
(i.e., minimum fish size, possession limits, and fishing seasons) 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 
November 4, 2009, proposed rule: A summer flounder Total Allowable 
Landings (TAL) of 22.13 million lb (10,038 mt) for 2010, inclusive of 
663,900 lb (301 mt) set aside for

[[Page 67979]]

research. Summer flounder remain under a stock rebuilding program and 
must achieve the rebuilding biomass target (i.e., 
BMSY(Maximum Sustainable Yield)) by January 1, 2013. 
Analysis conducted by the Southern Demersal Working Group (SDWG) 
indicates that the 2010 summer flounder TAL implemented by this rule is 
projected to provide the necessary stock growth to achieve the 
rebuilding objective within the specified timeframe. This TAL 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. This TAL has a 50-percent probability of constraining fishing 
mortality below the management target of F40 percent = 0.255 
and a 95-percent probability of constraining fishing mortality below 
the overfishing threshold of FMSY = F35 percent = 
0.310.
    Three research projects that would utilize the full summer flounder 
research set-aside (RSA) of 663,900 lb (301 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 2010 RSA, the TAL is divided into an 
initial commercial quota of 13,278,000 lb (6,023 mt) and a recreational 
harvest limit of 8,852,000 lb (4,015 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 2009, 
plus any previously unaccounted for overages from January-December 
2008. Table 1 summarizes, for each State, the commercial summer 
flounder percent shares as outlined in Sec.  600.100(d)(1)(I), the 
resultant 2010 commercial quota (both initial and less the RSA), the 
quota overages as described above, and the final adjusted 2010 
commercial quota, less the RSA.

                                      Table 1--Final State-by-State Commercial Summer Flounder Allocations for 2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Percent Share                         Initial quota       Initial quota, less  RSA     2009 Quota overages    Adjusted quota, less RSA
-----------------------------------------------------------------------------------------------------  (through  10/31/09)\1\  -------------------------
                                                                                                     --------------------------
               State                                   lb           kg           lb           kg           lb           kg           lb           kg
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME.................................      0.04756        6,315        2,864        6,126        2,779            0            0        6,126        2,779
NH.................................      0.00046           61           28           59           27            0            0           59           27
MA.................................      6.82046      905,621      410,790      878,452      398,466       31,785       14,417      846,667      398,466
RI.................................     15.68298    2,082,386      944,570    2,019,915      916,233            0            0    2,019,915      916,233
CT.................................      2.25708      299,695      135,942      290,704      131,863            0            0      290,704      131,863
NY.................................      7.64699    1,015,367      460,571      984,906      446,754            0            0      984,906      446,754
NJ.................................     16.72499    2,220,744    1,007,330    2,154,122      977,110            0            0    2,154,122      977,110
DE.................................      0.01779        2,362        1,071        2,291        1,039       55,687       25,259      -53,396      -24,220
MD.................................      2.03910      270,752      122,813      262,629      119,129            0            0      262,629      119,129
VA.................................     21.31676    2,830,439    1,283,887    2,745,526    1,245,371            0            0    2,745,526    1,245,371
NC.................................     27.44584    3,644,259    1,653,036    3,534,931    1,603,445            0            0    3,534,931    1,603,445
������������������������������������
    Total \2\......................       100.00   13,278,001    6,022,901   12,879,661    5,842,214       87,472       39,677   12,792,189    5,802,439
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 2009 quota overage is determined through comparison of landings for January through October 2009, plus any landings in 2008 in excess of the 2008
  quota (that were not previously addressed in the 2009 specifications) for each State. For Delaware, includes continued repayment of overharvest from
  2009 and previous years.
\2\ Total quota is the sum of all States having allocation. A State with a negative number has a 2010 allocation of zero (0). Kilograms are as converted
  from pounds and may not necessarily add due to rounding.

    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 2010 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 2009 summer 
flounder quota overage (inclusive of overharvest from previous years) 
is greater than the amount of commercial quota allocated to Delaware 
for 2010. As a result, there is no quota available for 2010 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, 2010, landings of summer 
flounder in Delaware by vessels holding commercial Federal summer 
flounder fisheries permits are prohibited for the 2010 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 2010 calendar year, 
unless additional quota becomes available through a transfer, as 
mentioned above.

Scup

    This final rule implements the specifications contained in the 
November 4, 2009, proposed rule: A 17.09-million-lb (7,752-mt) scup TAC 
and an 14.11-million-lb (6,400-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. After deducting 423,300 lb 
(192 mt) of RSA for the three conditionally selected research projects, 
the initial TAL is a commercial quota of 10,675,626 lb (4,842 mt) and a 
recreational harvest limit of 3,011,074 lb (1,366 mt). If a proposed 
project is not approved by the NOAA Grants Office, the research quota

[[Page 67980]]

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 2009 
periods, plus any previously unaccounted for landings from the 2008 
Winter II period. Table 2 presents the final 2010 commercial scup quota 
for each period and the reported landings for the 2009 Winter I and 
Summer periods. There were no overages of the 2009 Winter I or Summer 
Period quotas or previously unaccounted for overages of any 2008 quota 
periods; therefore, no adjustment to the 2010 scup specifications is 
required in this final rule. Any overage of the 2009 Winter II period 
will be addressed in July 2010, prior to the 2010 Winter II fishery.
    Per the quota accounting procedures, after June 30, 2010, NMFS will 
compile all available landings data for the 2009 Winter II quota period 
and compare the landings to the 2009 Winter II quota period allocation, 
inclusive of any transfer from the 2009 Winter I quota period. Any 
overages will be determined, and deductions, if needed, will be made to 
the Winter II 2010 allocation and published in the Federal Register.

                       Table 2--Scup Preliminary 2009 Commercial Landings by Quota Period
----------------------------------------------------------------------------------------------------------------
                                           2009 Quota          Reported 2009  landings   Preliminary overages as
                                   --------------------------     through 10/31/09             of 10/31/09
           Quota period                                      ---------------------------------------------------
                                         lb           mt           lb           mt           lb           mt
----------------------------------------------------------------------------------------------------------------
Winter I..........................    3,777,443        1,713    3,758,754        1,402            0            0
Summer............................    2,930,733        1,329    2,876,619        1,073            0            0
�����������������������������������
Winter II.........................                Overage adjustment, if necessary, occurs in 2010
�����������������������������������
    Total.........................    6,708,176        2,502    6,635,373        2,475          N/A          N/A
----------------------------------------------------------------------------------------------------------------

    Table 3 presents the commercial scup percent share, 2010 TAC, 
projected discards, 2010 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.

                                                           Table 3--Initial Commercial Scup Quota Allocations for 2010 by Quota Period
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Initial                                                 Possession Limits (per trip) \2\
                                                                                  quota less    Adjusted  ---------------------------------------------------------------------------------------------------
                                                   Total                 Initial   overages    quota less
                                                 allowable    Discards    quota    (through     overages      Quota      Per-
                                                   catch                            10/31/      and RSA       period     cent     lb      mt        lb        mt       lb       mt    lb  mt  lb
                                                                                   2008) \1\                             share
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ ------------------------
Winter I.......................................      45.11    6,013,253    2,728   1,048,537          476    4,964,716   2,252     N/A     N/A   4,815,775   2,184   30,000   13,608
Summer.........................................      38.95    5,192,113    2,355     905,354          411    4,286,759   1,944     N/A     N/A   4,158,156   1,886      N/A      N/A
Winter II......................................      15.94    2,124,834      964     370,509          168    1,754,325     168     N/A     N/A   1,701,695     775    2,000      907
������������������������������������������������
    Total \3\..................................      100.0   13,330,200    6,046   2,324,400        1,054   11,005,800   4,992     N/A     N/A  10,675,626   4,842      N/A      N/A
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\See Table 1 for explanation of overages.
\2\ The Winter I possession limit will drop to 1,000 lb (454 kg) upon attainment of 80 percent of that period's allocation. The Winter II possession limit may be adjusted (in association with
  a transfer of unused Winter I quota to the Winter II period) via notification in the Federal Register.
\3\ Metric tons are as converted from pounds and may not necessarily add due to rounding.
N/A=Not applicable.

    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 have been 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).

Table 4--Potential Increase in Winter II Possession Limits Based on the Amount of Scup Rolled Over From Winter I
                                               to Winter II Period
----------------------------------------------------------------------------------------------------------------
    Initial Winter II      Rollover from Winter I to Winter II     Increase in initial        Final Winter II
    possession limit     ---------------------------------------   Winter II possession   possession limit after
-------------------------                                                 limit           rollover from Winter I
                                                                -------------------------      to Winter II
     lb           kg                 lb                 mt                               -----------------------
                                                                      lb          kg          lb          kg
----------------------------------------------------------------------------------------------------------------
     2,000          907                0-499,999         0-227            0            0       2,000         907

[[Page 67981]]

 
     2,000          907          500,000-999,999       227-454        1,500          680       3,500       1,588
     2,000          907      1,000,000-1,499,999       454-680        3,000        1,361       5,000       2,268
     2,000          907      1,500,000-1,999,999       680-907        4,500        2,041       6,500       2,948
     2,000          907      2,000,000-2,500,000     907-1,134        6,000        2,722       8,000       3,629
----------------------------------------------------------------------------------------------------------------

Black Sea Bass

    This final rule implements the specification contained in the 
November 4, 2009, proposed rule: A 2.3-million-lb (1,043-mt) black sea 
bass TAL. This is the status quo. 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 2009, plus any previously unaccounted for 
landings from January-December 2008. There were no overages for either 
period; thus, no overage deduction adjustment to the 2010 commercial 
quota is necessary.

Comments and Responses

    NMFS received 18 comments during the 15-day comment period for the 
November 4, 2009, proposed rule. The majority of the comments 
applicable to the proposed specifications pertained to the catch levels 
recommended by the Council's Scientific and Statistical Committee (SSC) 
for scup and black sea bass. The majority of the applicable comments 
submitted raised the same or similar issues; therefore, the significant 
issues and concerns are summarized and responded to here.
    Most comments pertained to a recent NMFS emergency action closure 
of the recreational black sea bass fishery in the EEZ (74 FR 51092; 
October 5, 2009). These comments are outside the scope of the proposed 
specifications and will be considered as comments on the emergency 
rule. NMFS will take these comments into consideration if the initial 
emergency action is extended beyond April 12, 2010, the date on which 
the 180-day closure is due to expire. NMFS will also take these 
comments into consideration during the development of the 2010 
recreational management measures proposed rule, to be published in the 
spring of 2010, after the Council deliberates on such measures in early 
December 2009.
    Comment 1: Some commenters stated that a 15-day comment period, 
beginning on the date of the proposed rule publication in the Federal 
Register on November 4, 2009, and ending on November 19, 2009, was too 
short. One U.S. Representative to Congress specifically requested that 
NMFS extend the proposed rule comment period beyond 15 days.
    Response: NMFS has, for the past several years, utilized a 15-day 
comment period when publishing proposed specifications for summer 
flounder, scup, and black sea bass in order to ensure that NMFS 
satisfies a standing court order \1\ that requires NMFS to implement 
the annual specifications for summer flounder effective on or before 
January 1 of each year. NMFS gave careful consideration to extending 
the comment period for the proposed 2010 summer flounder, scup, and 
black sea bass specifications, but determined that extending the 
comment period would likely jeopardize complying with this court order, 
as the time required to address comments, develop, and publish a final 
rule would not occur before January 1. Were specifications not in place 
for scup and black sea bass on January 1, no quotas would be 
established, nor would trip limits be in place for scup. Absence of 
quotas for the commercial fisheries was determined to be inconsistent 
with the goals and objectives of the FMP that are designed to prevent 
overfishing by establishment of both trip limits and a total quota 
level for the year that is related to an overall mortality objective 
for the stocks. A situation wherein there were no quotas established 
would allow uncontrolled harvest and prevent NMFS from enforcing 
possession limits or, if necessary, closing the fishery to ensure catch 
levels were not exceeded. Therefore, NMFS has determined that a 15-day 
comment period is reasonable under these circumstances.
---------------------------------------------------------------------------

    \1\ North Carolina Fisheries Assoc. Inc. et al. v. Daley Civil 
NO. 2:97cv339 (RGD).
---------------------------------------------------------------------------

    Comment 2: Some commenters stated that the proposed rule only 
contained tables detailing commercial fishery quotas and that 
recreational anglers were disadvantaged by not being able to comment, 
presumably on the quotas for the recreational fishing sector.
    Response: The proposed rule contains clear text descriptions of the 
proposed recreational harvest limit values and invites comment on all 
proposed measures. These values are not presented in tabular form 
because, unlike the commercial quotas, the recreational harvest limits 
are not subdivided into State allocations or fishing period 
allocations, and do not have applicable possession limits established 
through the specifications rule.
    The November 4, 2009, proposed rule provided notice that the rule 
pertains to the 2010 proposed specifications, which are described as 
the commercial quotas and commercial management measures, such as trip 
limits, and the proposed 2010 recreational harvest limits. The proposed 
rule further clarified that the Council will consider recreational 
management measures (i.e., minimum fish sizes, possession limits, and 
fishing seasons) at its December 2009 meeting.
    The proposed 2010 recreational harvest level for summer flounder is 
found in the text on page 57136 of the November 4, 2009, proposed rule 
in the second paragraph of the third column; the proposed recreational 
harvest limit for scup is found in the text on page 57138 in the first 
paragraph of the second column; and the proposed recreational harvest 
limit for black sea bass is found in the text on page 57139 in the 
third paragraph of the first column.

[[Page 67982]]

    Comment 3: Several commenters suggested that NMFS has 
misinterpreted requirements of the Magnuson-Stevens Act that Councils 
develop annual catch limits for each of their managed fisheries that 
may not exceed the fishing level recommendations of their SSC. One 
commenter stated that a citation to this aspect of the Magnuson-Stevens 
Act section 302(h)(6)) in the proposed rule, and previous statements by 
NMFS personnel that the 2010 catch levels could not exceed the 
Acceptable Biological Catch (ABC) levels recommended by the Council's 
SSC, purposefully and egregiously misled the public and, by inference, 
the Council, that the ABC represented a hard ceiling of catch levels 
that the Council could not exceed in recommending specification levels. 
In support of these commenters' positions, some referenced an October 
22, 2009, letter from NOAA Administrator Dr. Jane Lubchenco to U.S. 
Senator Olympia Snowe, wherein Dr. Lubchenco stated, in regard to 
Atlantic herring, ``Because Atlantic herring is not subject to 
overfishing, a mechanism for specifying annual catch limits (ACLs) does 
not need to be implemented until 2011.'' The commenters reason that, by 
the logic in this statement, the Council could have recommended catch 
levels (i.e., specifications) higher than the ABC levels recommended by 
the SSC, and that NMFS's advice to the contrary was incorrect.
    Response: NMFS agrees that, for stocks not subject to overfishing, 
ACLs need not be established until 2011 and that there are not ACL 
mechanisms in the summer flounder, scup, or black sea bass regulations; 
however, the requirement that SSCs establish annual ABCs became 
effective when the Magnuson-Stevens Act was reauthorized in 2007. The 
SSC recommendation is a thorough scientific review process which 
examines best available scientific information. In order to be 
approvable, all actions taken under the Magnuson-Stevens Act must be 
consistent with all 10 National Standards, as well as applicable law. 
National Standard 2 requires that conservation and management measures 
shall be based on the best scientific information available. Thus, even 
in the absence of ACLs, were a Council inclined to ignore the ABC 
advice of its SSC and set catch levels higher than the recommended ABC 
level, substantial explanation and documentation would be necessary to 
substantiate why the SSC's ABC recommendation did not reflect the best 
scientific information available and to demonstrate that doing so is 
consistent with National Standard 2. Dr. Lubchenco's letter to Senator 
Snowe contains the following important information which was not cited 
by the commenters:

* * * effective in January 2007, the Magnuson-Stevens Act enhanced 
the role of SSCs, mandating that they shall provide ongoing 
scientific advice for fishery management decisions, including 
recommendations for acceptable biological catch (Magnuson-Stevens 
Act Sec.  302(g)(1)(B)). We [NMFS] have advised the Council that 
their recommendations for Atlantic herring catch limits will have to 
fully consider all Magnuson-Stevens Act requirements, including 
preventing overfishing (National Standard 1) and using best 
scientific information available (National Standard 2).

    The Council has provided a catch recommendation for 2010 consistent 
with the ABC recommendation of its SSC; no alternative catch levels 
have been recommended. Thus, through this final rule, NMFS is 
implementing the 2010 recommendations of the Council, consistent with 
National Standard 2.
    Comment 4: Several comments stated that the Council must direct its 
SSC to reconsider the 2010 ABCs for scup and black sea bass. Among the 
issues raised by the commenters were allegations that the SSC ignored 
all but the most precautionary statements of the 2008 Data Poor Stocks 
Working Group (DPSWG) peer-reviewed assessment for the two species, 
that the SSC overstepped its bounds and acted inappropriately setting 
the 2010 ABC with too much precaution, that the circumstances 
surrounding the 2009 ABC for black sea bass were not adequately 
considered (i.e., the stock conditions for the 2009 recommendation were 
significantly different than for the 2010 recommendation), and that 
both species stocks are rebuilt, not overfished, nor experiencing 
overfishing, and that NMFS must increase the quotas above the level 
recommended by the SSC and, subsequently, the Council.
    Response: The Council considered a motion to require the SSC to 
reconvene and reconsider its 2010 scup and black sea bass ABC 
recommendations during its August 2009 meeting in Alexandria, VA. The 
motion failed. The SSC is a formal standing committee of the Council, 
and only the Council may ask the SSC to reconvene or reconsider its 
recommendations. NMFS does not have the authority to task the SSC to 
convene or consider specific topics.
    As indicated in numerous comments, NMFS agrees that the stock 
status for both scup and black sea bass are much improved based on the 
results of the DPSWG assessments and 2009 stock assessment updates. As 
stated, both stocks are rebuilt and not experiencing overfishing. The 
revised National Standard 1 guidance (74 FR 51092; January 16, 2009) 
contemplates the type of situation that has occurred for the 2010 ABC 
recommendations for scup and black sea bass: In situations where there 
are large amounts of either scientific or management uncertainty, or a 
combination of both, catch levels should be reduced from the 
overfishing level by an amount that adequately compensates for the 
uncertainties. The SSC had a thorough, deliberative discussion in 
making the 2010 ABC recommendations for scup and black sea bass, and 
best available scientific information regarding stock status was not 
ignored. Instead, the SSC found the statements from the DPSWG and the 
peer-review panel on the level of scientific uncertainties associated 
with the new assessments and the suggestions to proceed cautiously in 
increasing catches for either stocks compelling (See Northeast 
Fisheries Science Center Reference Documents 09-02a (DPSWG final 
report), 09-16 (2009 black sea bass stock status update), and 09-18 
(2009 scup stock status update), all available at http://www.nefsc.noaa.gov for more information). For both stocks, the SSC 
expressed numerous concerns with the reliability and accuracy of the 
information that the new stock assessment models provide for making 
catch recommendations. The SSC recommendations, though conservative, 
are consistent with the National Standard 1 Guidelines (74 FR 3178; 
January 16, 2009), all of the other National Standards, and the FMP.
    Comment 5: Several commenters stated that no catch levels should be 
implemented for scup and black sea bass until such time that the 
Council's revised ABC recommendation standard operating procedures, 
which will change the way the Monitoring Committee and SSC operate in 
making specification recommendations to the Council, are applied to the 
2010 recommendations.
    Response: NMFS does not agree that catch limits, through the 
specifications in this final rule, should not be implemented until the 
Council has directed its Monitoring Committees and SSC to reconsider 
the 2010 ABC recommendations. The process wherein the SSC and 
Monitoring Committees provided advice on scientific and management 
uncertainty, respectively, in setting 2010 ABC occurred as contemplated 
both by the Magnuson-Stevens Act, the Council's standard operating 
procedures as drafted in July

[[Page 67983]]

2009, and as outlined in the implementing regulations of the FMP. In 
the interim since the 2010 ABC recommendations were made, the Council 
has modified its standard operating procedures for the ABC 
recommendation process, and it is noted that the Monitoring Committee 
disagreed with the SSC's black sea bass 2010 ABC recommendation. 
However, the process did produce a vetted Council recommendation for 
2010 catch levels for all three species. Some commenters have indicated 
that, had the current advice regarding the Council's ability to set 
catch levels higher than the ABC recommended by the SSC been available, 
the Council recommendations may have been different (See Comment and 
Response 3 for additional discussion). To date, the Council has not 
directed either its Monitoring Committee or its SSC to reconsider the 
proposed specifications for 2010; therefore, NMFS must act on the 
current recommendations of the Council, as submitted. In this case, 
NMFS has determined that the catch recommendations forwarded from the 
Council for 2010 are consistent with the Magnuson-Stevens Act, other 
applicable law, and the FMP.
    Comment 6: Some comments stated that the proposed 2010 catch levels 
for scup and black sea bass, if implemented, would violate National 
Standard 1 because they would fail to achieve, on a continuing basis, 
optimum yield (OY). These comments further elaborate that there are 
currently no conservation issues with the scup or black sea bass stocks 
(i.e., rebuilding programs or the need to end overfishing), so the 
fisheries must be managed to attain OY to provide the greatest benefit 
to the Nation. Some comments point toward the OY value for the southern 
stock of black sea bass, as managed in the Snapper-Grouper FMP in the 
South Atlantic, to make inferences that the northern stock catch for 
2010 is being set well below the southern stock's OY.
    Response: The commenters have misinterpreted the application of 
National Standard 1. NMFS interprets ``achieving on a continual basis'' 
to mean producing a long-term series of catches such that the average 
catch is equal to OY, overfishing is prevented, and long-term average 
biomass is near or above BMSY. As such, National Standard 1 
does not contemplate that the OY will necessarily be achieved in a 
single year given the natural fluctuation of fish stocks in response to 
environmental conditions. In the opinion issued by Judge Robert Doumar 
in North Carolina Fisheries Assoc. Inc. et al. v. Daley Civil NO. 
2:97cv339 (RGD), the Court found the following in response to the 
plaintiff's allegation that a quota did not achieve OY for the 1997 
fishing year:

``* * * The District of Columbia Circuit has defined optimum yield 
as ``maximum yield less whatever amount need be conserved for 
economic, social or ecological reasons.'' \2\ This Court has also 
held that ``optimum yield is not the same as `maximum yield.' '' \3\ 
Furthermore, optimum yield is measured on a continuing basis, the 
optimum yield from each fishery, not the optimum yield in a single 
year.''
---------------------------------------------------------------------------

    \2\ C&W Fish Co., Inc. v. Fox, 289 U.S. App. DC 323, 931 F2d 
1556, 1563 (DC Cir. 1991).
    \3\  J.H. Miles & co. v. Brown, 910 F. Supp. 1138,1148 (E.D. Va. 
1995).

    Further complicating the arguments presented by commenters is the 
fact that OY for black sea bass and scup in the Mid-Atlantic region 
have not been specified as a specific amount based on a reduction of 
MSY by relevant economic, ecological, and social factors. Under the 
Magnuson-Stevens Act OY is less than or equal to MSY proxy. While OY is 
a requirement for all FMPs, to date, information of sufficient quality 
has not been available to specify MSY or OY for scup or black sea bass. 
Instead, an MSY proxy has been used for these stocks and the Council 
has not modified the proxy to specify an OY different from it. The 
Council will re-evaluate OY specifications for its managed species as 
part of the Omnibus Amendment being developed to implement ACLs.
    It is inappropriate to assume that the OY value of the southern 
stock of black sea bass is at all informative as a comparison for the 
northern stock, as was done by a number of the commenters. The species 
is the same, but the stocks are distinct in many ways and, as such, the 
MSY and OY values would be expected to differ.
    NMFS acknowledges that the 2010 catch level recommendations from 
the Council, as implemented in this final rule, are conservative 
relative to the BMSY values for the two stocks; however, the 
SSC provided clear rationalization for its 2010 ABC recommendation.
    The National Standard 1 guidelines (74 FR 3178; January 16, 2009), 
contemplate reducing catch levels from OY in situations where the 
uncertainties pertaining to the fishery necessitate so doing. Response 
to Comment 35 (page 3190 of the January 16, 2009, rule, 74 FR 3178) 
states,

    ``NMFS believes that fisheries managers cannot consistently meet 
the requirements of the Magnuson-Stevens Act to prevent overfishing 
and achieve, on a continuing basis, OY unless they address 
scientific and management uncertainty. The reductions in fishing 
levels that may be necessary in order to prevent overfishing should 
be only the amount necessary to achieve the results mandated by the 
Magnuson-Stevens Act. Properly applied, the system described in the 
guidelines does not result in `too many deductions,' but rather, 
sets forth an approach that will prevent overfishing, achieve on a 
continuing basis OY, and incorporate sufficient flexibility so that 
the guidelines can be applied in different fisheries.''

    Further, the National Standard 1 guidelines, (74 FR 3178; January 
16, 2009) on page 3208 in (v) Specification of OY states:

    ``If the estimates of MFMT [Maximum Fishing Mortality Threshold] 
and current biomass are known with a high level of certainty and 
management controls can accurately limit catch then OY could be set 
very close to MSY * * * To the degree that such MSY estimates and 
management controls are lacking or unavailable, OY should be set 
further from MSY. If management measures cannot adequately control 
fishing mortality so that the specified OY can be achieved without 
overfishing, the Council should reevaluate the management measures 
and specification of OY so that the dual requirements of NS1 
[National Standard 1] (preventing overfishing while achieving, on a 
continual basis, OY) are met.''

    In this instance, the SSC has indicated that substantial 
uncertainty exists in the new stock assessments for both scup and black 
sea bass. The biomass estimates provided by the stock assessment are 
uncertain, as are the MFMT or overfishing threshold levels calculated, 
as this is the first year of fishing under the information provided by 
the new assessment methodology and outputs. By inference, the SSC may 
have been concerned that there is a likelihood that overfishing could 
occur if catch levels are set too high. The perception from the updated 
assessments is that both stocks are well above the respective 
overfishing thresholds; however, the SSC has provided for conservative 
catches in 2010 in an effort to validate the information provided by 
the new, as of yet untested, stock assessments. This is a reasonable 
approach, and consistent with the guidance on setting catches relative 
to OY/MSY proxy. Presumably, if the stock assessment information is 
validated by the 2010 catches, overfishing does not occur, and the new 
model framework performs as expected in response to the 2010 fishing 
activities, the future management response and catch recommendations 
could be to increase catches and to move long-term average catches 
toward OY/MSY proxy levels. Conversely,

[[Page 67984]]

should the updated stock assessment information indicate that the 2010 
fishery levels were either too high, the stock information overly 
optimistic, the MFMT inaccurate, or the stock to be subject to 
overfishing, the response may be more conservative management in the 
future until such time that these issues may be resolved. If the 
confidence in the most recent stock assessments for both species does 
not improve over time, the Council should consider setting OY below the 
MSY proxy levels so that the long-term average desired yield is 
achieved on a continuing basis.
    Comment 7: Some commenters did not support the use of RSA in 2010, 
stating that the 3-percent set aside would be better applied to the 
recreational fisheries. Specifically, one commenter disagreed with the 
awarding of RSA to fund a near-shore trawl survey project, stating that 
NMFS should be obligated to provide funding for and/or conduct near-
shore surveys.
    Response: NMFS continues to support the use of RSA as a means for 
the Council and the agency to cooperatively fund research that meets 
the identified research priorities of the Council. The RSA project 
selection and approval process is not part of the specification 
rulemaking process. Inclusion of those projects that have been given a 
preliminary approval for 2010 RSA award in the proposed rule is done to 
solicit comment on Exempted Fishing Permits (EFPs) that may be awarded 
at a later date to support the described research and compensation 
fishing activities. No specific exceptions to the proposed EFPs were 
raised in the comments on the proposed rule; rather, the comments are 
geared toward specific projects that have been preliminarily identified 
for 2010 RSA award and the overall goals and objectives of the RSA 
program. 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.

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, 2010. 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 that is developed by 
the Council. This document was received by NMFS in mid-September 2009. 
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 November 4, 2009, with a 15-day comment 
period ending November 19, 2009. Publication of the adjusted summer 
flounder quota at the start of the fishing year that begins January 1, 
2010, is required by the order of Judge Robert Doumar in North Carolina 
Fisheries Association v. Daley.
    If the 30-day delay in effectiveness were not waived, the lack of 
effective quota specifications on January 1, 2010, 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 2010. 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 2010 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 2010. 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, 2010. Should this occur, the fishing mortality 
objectives for all three species and the summer flounder rebuilding 
plan would be compromised.
    This final rule is exempt from review under Executive Order 12866.
    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 and a summary of the analyses completed to 
support the action. No significant issues were raised by the public 
comments in response to the IRFA. A copy of the EA/RIR/IRFA is 
available from the Council (see ADDRESSES).
    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. None of the comments received raised 
specific issues regarding 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 2,213 vessels

[[Page 67985]]

that held a Federal summer flounder, scup, and/or black sea bass permit 
in 2008, the most recent year for which complete permit data exist. The 
more immediate impact of this final rule will likely be felt by the 808 
vessels that actively participated (i.e., landed these species) in 
these fisheries in 2008.

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 changes in year-to-year quota 
specifications 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 2010, 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 are 
met. In particular, the Council's SSC has made recommendations for the 
2010 ABC level for all three stocks. NMFS considers this recommendation 
to be consistent with National Standard 2. Establishment of catch 
levels higher than the SSC ABC recommendations would require 
substantial, compelling argument and documentation that the 
recommendations were not, in fact, based on the best available 
scientific information. NMFS-approved measures for the summer flounder 
fishery must also ensure that the statutory requirements of the stock 
rebuilding program are met by the January 1, 2013, rebuilding deadline.
    The economic analysis for the 2010 specification assessed the 
impacts for quota alternatives that achieve the aforementioned 
objectives. The no action alternative, wherein no quotas are 
established for 2010, 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 2010 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 fishing limits for 2010, and could result in overfishing of the 
resources and substantially compromise the mortality and/or stock 
rebuilding 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 2010 specification process.
    Alternative 3 (least restrictive quotas; highest catch levels) 
would produce the smallest impact on small entities. For all three 
species, the respective quotas under Alternative 3 are inconsistent 
with the SSC's catch level recommendations. For summer flounder, the 
Alternative 3 measures do not achieve the objectives required under the 
summer flounder rebuilding program. Because the respective Alternative 
3 measures would establish annual fishing limits that are exceed the 
fishing level recommendations of the Council's SSC, they are 
inconsistent with the Magnuson-Stevens Act requirements and cannot be 
implemented for 2010, despite having the lowest associated impact on 
small entities.
    Through this final rule, NMFS implements the summer flounder, scup, 
and black sea bass TALs contained in Alternative 1, the Council's 
preferred alternatives, which consist of the quota alternatives that 
pair the lowest economic impacts to small entities and meet the 
required objectives of the FMP and the Magnuson-Stevens Act. Relative 
to 2009, the 2010 commercial quotas and recreational harvest measures 
in this action would result in the following TAL changes for the 
commercial and recreational sectors:
    (1) A 19.9-percent increase for summer flounder;
    (2) A 26.2-percent increase for scup; and
    (3) Status quo for black sea bass.
    The respective TALs contained in Alternative 1 for all three 
species 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. The F rates associated with the TALs for 
all three species all have very low likelihoods of causing overfishing 
to occur in 2010. TAL Alternative 1 for summer flounder is also 
projected to provide the necessary continued stock rebuilding to 
achieve the SSBMSY by the rebuilding period ending date of 
January 1, 2013.
    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 2010.

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: http://www.nero.noaa.gov.

    Dated: December 16, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E9-30388 Filed 12-21-09; 8:45 am]
BILLING CODE 3510-22-P