[Federal Register: January 2, 2009 (Volume 74, Number 1)]
[Rules and Regulations]
[Page 29-38]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02ja09-8]
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DEPARTMENT OF COMMERCE
50 CFR Part 648
[Docket No. 0809251266-81485-02]
RIN 0648-XJ96
Fisheries of the Northeastern United States; Summer Flounder,
Scup, and Black Sea Bass Fisheries; 2009 Summer Flounder, Scup, and
Black Sea Bass Specifications; Preliminary 2009 Quota Adjustments; 2009
Summer Flounder Quota for Delaware
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues final specifications for the 2009 summer flounder,
scup, and black sea bass fisheries. This final rule specifies allowed
harvest limits for both commercial and recreational fisheries,
including commercial scup possession limits. This action prohibits
federally permitted commercial vessels from landing summer flounder in
Delaware in 2009 due to continued quota repayment from previous years'
overages.
The actions of this final rule are necessary to comply with
regulations implementing the Summer Flounder, Scup, and Black Sea Bass
Fishery Management Plan (FMP), as well as to ensure compliance with the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).
The intent of this action is to establish harvest levels and other
management measures to ensure that target fishing mortality rates (F)
or exploitation rates, as specified for these species in the FMP, are
not exceeded. In addition, this action implements measures that ensure
continued rebuilding of these three stocks that are currently under
rebuilding plans.
DATES: Effective January 1, 2009, through December 31, 2009.
ADDRESSES: Copies of the specifications document, including the
Environmental Assessment (EA), Regulatory Impact Review (RIR), Initial
Regulatory Flexibility Analysis (IRFA), and other supporting documents
used by the Summer Flounder, Scup, and Black Sea Bass Monitoring
Committees and Scientific and Statistical Committee are available from
Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management
Council, Room 2115, Federal Building, 300 South New Street, Dover, DE
19901-6790. The specifications document is also accessible via the
Internet at 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
[[Page 30]]
Hatteras Lighthouse, Buxton, NC) northward to the U.S./Canada border.
The Council prepared the FMP under the authority of the Magnuson-
Stevenson Act, 16 U.S.C. 1801 et seq. Regulations implementing the FMP
appear at 50 CFR part 648, subparts A (general provisions), G (summer
flounder), H (scup), and I (black sea bass). General regulations
governing U.S. fisheries also appear at 50 CFR part 600. States manage
summer flounder within 3 nautical miles of their coasts, under the
Commission's plan for summer flounder, scup, and black sea bass. The
Federal regulations govern vessels fishing in the exclusive economic
zone (EEZ), as well as vessels possessing a Federal fisheries permit,
regardless of where they fish.
The regulations outline the process for specifying the annual catch
limits for the summer flounder, scup, and black sea bass commercial and
recreational fisheries, as well as other management measures (e.g.,
mesh requirements, minimum fish sizes, gear restrictions, possession
restrictions, and area restrictions) for these fisheries. The measures
are intended to achieve the annual targets set forth for each species
in the FMP, specified either as an F or an exploitation rate (i.e., the
proportion of fish available at the beginning of the year that may be
removed by fishing during the year). Once the catch limits are
established, they are divided into quotas based on formulas contained
in the FMP. Detailed background information regarding the status of the
summer flounder, scup, and black sea bass stocks and the development of
the 2009 specifications for these fisheries was provided in the
proposed specifications (73 FR 63934; October 28, 2008). That
information is not repeated here.
NMFS will establish the 2009 recreational management measures for
summer flounder, scup, and black sea bass by publishing proposed and
final rules in the Federal Register at a later date, following receipt
of the Council's recommendations as specified in the FMP.
Summer Flounder
This final rule implements the specifications contained in the
October 28, 2008, proposed rule--a summer flounder Total Allowable
Landings (TAL) of 18.45 million lb (8,368 mt) for 2009. This TAL has a
63-percent probability of constraining fishing mortality below the
management target of F40 percent=0.255 and a 97-percent
probability of constraining fishing mortality below the overfishing
threshold of FMSY=F35 percent=0.310. In recent
years, NMFS has implemented summer flounder TALs that contained a 75-
percent probability of constraining fishing mortality below the level
(i.e., FREBUILD) expected to achieve the biomass target
(i.e., BMSY) by January 1, 2013, to ensure that the
Magnuson-Stevens Act rebuilding program is satisfied. The 2009 TAL has
an 83-percent probability of constraining fishing mortality below
FREBUILD=0.274 level. Furthermore, for 2009, the TAL had
been established using a management target that is lower than
FREBUILD (i.e., F40 percent (management
target)REBUILDMSY(overfishing threshold)),
thereby providing a greater probability that the 2009 fishing mortality
objective will not be exceeded and the required stock rebuilding will
occur. This TAL setting approach also satisfies a 2000 Federal Court
Order ((Natural Resources Defense Council v. Daley, Civil No. 1:99 CV
00221 (JLG)) which requires the annual summer flounder TAL to have at
least a 50-percent probability of success.
Three research projects that would utilize the full summer flounder
research set-aside (RSA) of 553,500 lb (251 mt) have been conditionally
selected by NMFS and are currently awaiting notice of award. If a
proposed project is not approved by the NOAA Grants Office, the
research quota associated with the disapproved proposal will be
restored to the summer flounder TAL through publication in the Federal
Register. After deducting the 2009 RSA, the TAL is divided into a
commercial quota of 10,737,900 lb (4,871 mt) and a recreational harvest
limit of 7,158,600 lb (3,247 mt).
Consistent with the revised quota setting procedures for the FMP
(67 FR 6877, February 14, 2002), summer flounder overages are
determined based upon landings for the period January-October 2008,
plus any previously unaccounted for overages from January-December
2007. Table 1 summarizes, for each state, the commercial summer
flounder percent shares as outlined in Sec. 600.100(d)(1)(I), the
resultant 2009 commercial quota (both initial and less the RSA), the
quota overages as described above, and the final adjusted 2009
commercial quota less the RSA.
BILLING CODE 3510-22-P
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BILLING CODE 3510-22-C
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The Commission has established a system whereby 15 percent of each
state's quota may be voluntarily set aside each year to enable vessels
to land an incidental catch allowance after the directed fishery in a
state has been closed. The intent of the incidental catch set-aside is
to reduce discards by allowing fishermen to land summer flounder caught
incidentally in other fisheries during the year, while ensuring that
the state's overall quota is not exceeded. These Commission set-asides
are not included in these 2009 final summer flounder specifications
because NMFS does not have authority to establish such subcategories.
Delaware Summer Flounder Closure
Table 1 indicates that, for Delaware, the amount of the 2008 summer
flounder quota overage (inclusive of overharvest from previous years)
is greater than the amount of commercial quota allocated to Delaware
for 2009. As a result, there is no quota available for 2009 in
Delaware. The regulations at Sec. 648.4(b) provide that Federal permit
holders, as a condition of their permit, must not land summer flounder
in any state that the Administrator, Northeast Region, NMFS (Regional
Administrator), has determined no longer has commercial quota available
for harvest. Therefore, effective January 1, 2009, landings of summer
flounder in Delaware by vessels holding commercial Federal summer
flounder fisheries permits are prohibited for the 2009 calendar year,
unless additional quota becomes available through a quota transfer and
is announced in the Federal Register. Federally permitted dealers are
advised that they may not purchase summer flounder from federally
permitted vessels that land in Delaware for the 2009 calendar year,
unless additional quota becomes available through a transfer, as
mentioned above.
Scup
This final rule implements the least restrictive (i.e., highest
associated harvest levels) analyzed by the Council. The Council
recommended, and NMFS published in the October 28, 2008, proposed rule,
an 11.70-million-lb (5,339-mt) scup Total Allowable Catch (TAC) and a
7.34-million-lb (3,329-mt) scup TAL. The rationale for so doing was
that scup are under a rebuilding plan and, at the time the Council met
in August, the best available information indicated that scup
rebuilding was behind the established rebuilding schedule. During the
interim between the Council recommending a 2009 TAC and TAL for scup,
the Northeast Fisheries Science Center (NEFSC) convened a Data Poor
Stocks Working Group (DPWG) to review biological reference points for
scup. The peer review body of the DPWG has preliminarily indicated that
the revised biological reference points, the modeling framework used to
generate those reference points, and resultant change in stock status
are acceptable, now represent the best available information, and
should be utilized to craft management advice. While the final peer
review report will not be available until late January or early
February 2009, NMFS is implementing the least restrictive/highest scup
TAC/TAL alternative analyzed by the Council as the updated stock status
information resulting from the DPWG indicate the scup stock status has
improved substantially and is rebuilt (i.e., now above the revised
rebuilding biomass target). Amendment 14 to the FMP established a scup
rebuilding plan based on a fixed F = 0.10 approach. During the 2009
specification development, the Council considered establishing catch
levels derived using the F = 0.10 approach but selected a more
precautionary TAC and TAL because the information available at the time
indicated that scup were behind the rebuilding schedule. Because scup
are no longer considered to be behind schedule, the additional
precaution recommended by the Council is no longer necessary. NMFS
considers the F = 0.10 approach consistent with the intent of the FMP
pending the release of the final DPWG report. When final reports are
issued for the DPWG and scup stock status is officially updated using
the revised biological reference points, NMFS may take additional
action to further modify the 2009 scup specifications.
This rule implements a 15.54-million-lb (5,796-mt) scup TAC and an
11.18-million-lb (4,170-mt) scup TAL. The TAC is divided into
commercial (78 percent) and recreational (22 percent) allocations, in
accordance with the FMP; the respective discard estimates are then
subtracted to yield the preliminary TAL. NMFS is not altering the RSA
amount contained in the proposed rule because projects utilizing that
amount have already been subject to NOAA Grants Office review and
preliminary approval. Therefore, after deducting 220,200 lb (100 mt) of
RSA for the three conditionally selected research projects, the initial
TAL is a commercial quota of 8,373,848 lb (3,123 mt) and a recreational
harvest limit of 2,585,952 lb (965 mt). If a proposed project is not
approved by the NOAA Grants Office, the research quota associated with
the disapproved proposal will be restored to the scup TAL through
publication in the Federal Register.
The commercial TAC, discards, and TAL (commercial quota) are
allocated on a percentage basis to three quota periods, as specified in
the FMP: Winter I (January-April)--45.11 percent; Summer (May-
October)--38.95 percent; and Winter II (November-December)--15.94
percent. The recreational harvest limit is allocated on a coastwide
basis. Consistent with the revised quota setting procedures established
for the FMP (67 FR 6877, February 14, 2002), scup overages are
determined based upon landings for the Winter I and Summer 2008
periods, plus any previously unaccounted for landings from the 2007
Winter II period (January-December 2007). Table 2 presents the final
2009 commercial scup quota for each period and the reported 2008
landings for the 2008 Winter I and Summer periods. There was no overage
of the Winter I quota; however, an overage of 328,795 lb (149 mt)
occurred during the Summer period. An additional 2,085 lb (946 kg) that
was previously unaccounted for in the 2008 specifications quota
adjustments for the scup Summer period will be added to the 2008
overage, resulting in a total 2009 Summer period quota deduction of
330,880 lb (150 mt).
On August 11, 2008 (73 FR 46554), NMFS announced a transfer of
unharvested quota from the Winter I to the Winter II 2008 quota period.
Per the quota accounting procedures, after June 30, 2009, NMFS will
compile all available landings data for the 2008 Winter II quota period
and compare the landings to the 2008 Winter II quota period allocation,
as adjusted by the aforementioned transfer. Any overages will be
determined, and deductions, if needed, will be made to the Winter II
2009 allocation and published in the Federal Register.
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Table 3 presents the commercial scup percent share, 2009 TAC,
projected discards, 2009 initial quota (with and without the RSA
deduction), overage deductions (as necessary), and initial possession
limits, by quota period.
This final rule continues the status quo Winter I period (January-
April) per-trip possession limit of 30,000 lb (13.6 mt), and a Winter
II period (November-December) initial per-trip possession limit of
2,000 lb (907 kg). The Winter I per-trip possession limit will be
reduced to 1,000 lb (454 kg) when 80 percent of the commercial quota
allocated to that period is projected to be harvested.
BILLING CODE 3510-22-P
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BILLING CODE 3510-22-C
Consistent with the unused Winter I commercial scup quota rollover
provisions at Sec. 648.120(a)(3), this final rule maintains the Winter
II possession limit-to-rollover amount ratios that were in place since
the 2007 fishing year, as shown in Table 4. The Winter II possession
limit will increase by 1,500 lb (680 kg) for each 500,000 lb (227 mt)
of unused Winter I period quota transferred, up to a maximum possession
limit of 8,000 lb (3,629 kg).
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Black Sea Bass
This final rule implements the specification contained in the
October 28, 2008, proposed rule: A 2.3-million-lb (1,043-mt) black sea
bass TAL. The FMP specifies that the annual TAL is allocated 49 percent
to the commercial sector and 51 percent to the recreational sector.
After deducting 69,000 lb (31 mt) of RSA for the three conditionally
selected research projects, the TAL is divided into a commercial quota
of 1,093,190 lb (456 mt) and a recreational harvest limit of 1,137,810
lb (516 mt).
If a proposed project is not approved by the NOAA Grants Office,
the research quota associated with the disapproved proposal will be
restored to the black sea bass TAL through publication in the Federal
Register. Consistent with the revised quota setting procedures for the
FMP, black sea bass overages are determined based upon landings for the
period January-September 2008, plus any previously unaccounted for
landings from January-December 2007. There were no overages for either
period; thus, no overage deduction adjustment to the 2009 commercial
quota is necessary.
Comments and Responses
NMFS received three comments during the comment period for the
October 28, 2008, proposed rule. One commenter supported the proposed
summer flounder TAL and two commenters supported the RSA projects
preliminarily approved for 2009.
Comment 1: An association that advocates for recreational fisheries
objected to the RSA project approval process. This commenter stated
support for the intent of the RSA program and stated no specific
objection to the 2009 preliminarily approved projects.
Response: The RSA approval process is not part of the specification
rulemaking process. NMFS and the Council work cooperatively each year
to identify research priorities and to determine which submitted
proposals should be selected for eventual RSA funding through the NOAA
Grants award process. The commenter's letter has been forwarded to both
the Northeast Fisheries Science Center (NEFSC) and the Council's
Research Steering Committee, as these groups are involved in the annual
RSA project selection process and are better suited to address the
concerns raised.
Comment 2: One commenter stated that a benchmark assessment is
needed for black sea bass and that the current trawl index utilized is
inadequate for determining exploitable biomass.
Response: The most recent black sea bass stock assessment was
conducted in 2006 as part of the 43rd Northeast Regional Stock
Assessment Workshop (SAW); this assessment was rejected by the
independent peer review body because it did not provide an adequate
basis to evaluate stock status against the biological reference points.
The peer reviewers did not recommend any other reference points; thus,
NMFS has continued use of the biological reference points contained in
the FMP as the best available scientific information. This includes the
index-based assessment approach utilized to evaluate the status of the
stock for management purposes.
NMFS agrees that black sea bass is a data-poor stock and that the
biology of the fish makes assessments challenging. Currently, staff
from the NEFSC, NMFS Northeast Regional Office, Council, Commission,
and academia are conducting a series of working group meetings for
data-poor stocks, including black sea bass, that may yield revised
biological reference points. Peer-review of the working group
recommendations will occur in December 2008 and final results are
expected in late January or early February 2009.
Comment 3: One commenter supported the scup TAC, but disagreed with
the commercial discard estimate utilized to derive the scup TAL.
Response: The discard estimates provided by the NEFSC, derived from
at-sea observer data, are the only data available to assess the
magnitude of scup discards in commercial fisheries. As such, the
estimates constitute the best available scientific information,
consistent with National Standard 2.
The Council and the NEFSC work cooperatively to prioritize observer
coverage through the annual Standard Bycatch Reporting Methodology
(SBRM) consultation process; however, observer resources are limited at
this time. In addition, a working group has been formed that is
composed of personnel from both Northeast regional fishery management
councils and NMFS to explore additional observer funding options,
including, but not limited to, cost recovery, industry funding, and
alternative coverages such as video monitoring, to increase the level
of observer coverage in some Northeast Region fisheries.
Comment 4: One commenter requested that the summer flounder
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recreational fishery be managed separately from the commercial fishery
with each having separate Annual Catch Limits (ACLs) and Accountability
Measures (AMs). Specifically, the commenter requested that any
recreational fishery overage be taken from the following year's
recreational harvest limit as a pound-for-pound overage repayment.
Response: Under the current FMP structure, the commercial fishery
has an annual quota that is 60 percent of the overall TAL. The
recreational fishery receives 40 percent of the TAL as a recreational
harvest limit. An amendment to the FMP would be required to enact the
commenter's request. The Council is currently beginning development of
an amendment to address ACLs and AMs for the FMP. The Council may
consider having separate measures for commercial and recreational
fishing modes and may also consider mode-specific AMs, such as overage
repayment.
Comment 5: One commenter stated that overages in the summer
flounder recreational fishery, wherein the annual recreational harvest
limit is exceeded, compromises NMFS's ability to estimate probabilities
for a given TAL's success. The commenter further suggests that this
makes the probabilities provided inconsistent with the best available
scientific information.
Response: NMFS agrees that when the basic assumptions involving the
probability calculations are violated, the probability for achieving
the annual management target (i.e., success) can be compromised. It is
for this reason that NMFS has been implementing only annual TALs with a
higher than 50-percent probability of success when stock rebuilding
stalled in the mid-2000s.
The 2008 summer flounder benchmark assessment conducted by the
Southern Demersal Working Group (SDWG) recommended a management target
(F40 percent) and threshold (F35 percent)
approach. The rationale for this approach is that setting an ACL on a
target allows for some amount of imprecision wherein the catch may
result in an F above or below the target roughly 50 percent of the
time. However, the catch should still remain below the threshold level
at which the stock experiences overfishing. The Council agreed with
this recommendation from the peer-reviewed stock assessment and set the
2009 TAL using the F target, creating a buffer between the 2009
projected F and the overfishing level F of the F threshold.
In addition, the Council acknowledged that there is some degree of
imprecision in managing the summer flounder fishery and elected to
recommend to NMFS a TAL that is lower than the SSC's recommendation for
Acceptable Biological Catch (ABC). The reduction from the recommended
ABC of 19.5 million lb (8,845 mt) to 18.45 million lb (8,369 mt) was
deliberate, and designed to provide a buffer for uncertainties such as
exceeding the recreational harvest limit. NMFS agrees that utilization
of an F target approach in TAL setting, paired with the additional
risk-averse approach of reducing TAL from ABC, should provide a very
high likelihood that overfishing will not occur in 2009.
Specific management measures designed to constrain recreational
harvest to the 2009 recreational harvest limit will be developed by the
Council and Commission in December. NMFS agrees that it is of paramount
importance that such measures be sufficient to ensure that the
recreational harvest limit is not exceeded.
Classification
The Administrator, Northeast Region, NMFS, determined that this
final rule is necessary for the conservation and management of the
summer flounder, scup, and black sea bass fisheries and that it is
consistent with the Magnuson-Stevens Act and other applicable laws.
The Assistant Administrator for Fisheries, NOAA, finds good cause
under 5 U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness
period for this rule, to ensure that the final specifications are in
place on January 1, 2009. This action establishes specifications (i.e.,
annual quotas) for the summer flounder, scup, and black sea bass
fisheries and possession limits for the commercial scup fishery.
Preparation of the proposed rule was dependent on the submission of
the EA/RIR/IRFA in support of the specifications which is developed by
the Council. This document was received by NMFS in the last days of
September 2008. Documentation in support of the Council's recommended
specifications is required for NMFS to provide the public with
information from the environmental and economic analyses as required in
rulemaking. The proposed rule published on October 28, 2008, with a 15-
day comment period ending November 12, 2008. Publication of the
adjusted summer flounder quota at the start of the fishing year that
begins January 1, 2009, is required by the order of Judge Robert Doumar
in North Carolina Fisheries Association v. Daley.
If the 30-day delay in effectiveness were to be required, the lack
of effective quota specifications on January 1, 2009, would present
significant difficulties to both NMFS and individual states who manage
these species cooperatively through the Commission. The summer
flounder, scup, and black sea bass fisheries are all expected, based on
historic participation and harvest patterns, to be very active at the
start of the fishing season in 2009. Individual states would be unable
to set commercial possession and/or trip limits which apportion the
catch over the entirety of the calendar year. NMFS would be unable to
control harvest in any way as there would be no quotas in place for any
of the three species until the regulations are effective. NMFS would be
unable to control harvest or close the fishery should landings exceed
the quotas. In addition, the Delaware summer flounder fishery would be
open for fishing but in a negative quota situation. All of these
factors would result in a race for fish wherein uncontrolled landings
would occur. Disproportionately large harvest occurring within the
first weeks of 2009 would have distributional effects on other quota
periods and would disadvantage some gear sectors or owners and
operators of smaller vessels that typically fish later in the fishing
season. There is no historic precedent by which to gauge the magnitude
of harvest that might occur should quotas for these three species not
be in place during the first weeks of 2009. It is reasonable to
conclude that the commercial fishing fleet possesses sufficient
capacity to exceed the established quotas for these three species
before the regulations would become effective, should quotas not be in
place on January 1, 2009. Should this occur, the stock rebuilding
objectives for all three species rebuilding plans would be compromised.
This final rule has been determined to be not significant for
purposes of Executive Order 12866 because this action contains no
implementing regulations.
This final rule does not duplicate, conflict, or overlap with any
existing Federal rules.
This FRFA was prepared pursuant to 5 U.S.C. 604(a), and
incorporates the IRFA, a summary of the significant issues raised by
the public comments in response to the IRFA, NMFS's responses to those
comments, and a summary of the analyses completed to support the
action. A copy of the EA/RIR/IRFA is available from the Council (see
ADDRESSES).
[[Page 37]]
The preamble to the proposed rule included a detailed summary of
the analyses contained in the IRFA, and that discussion is not repeated
here.
Final Regulatory Flexibility Analysis
Statement of Objective and Need
A description of the reasons why this action is being taken, and
the objectives of and legal basis for this final rule are contained in
the preambles to the proposed rule and this final rule and are not
repeated here.
Summary of Significant Issues Raised in Public Comments
No changes to the proposed rule were required to be made as a
result of public comments as most of the comments did not address
specific issues in this rulemaking or the economic analyses summarized
in the IRFA. For a summary of the comments received, and the responses
thereto, refer to the ``Comments and Responses'' section of this
preamble.
Description and Estimate of Number of Small Entities to Which the Rule
Will Apply
The categories of small entities likely to be affected by this
action include commercial and charter/party vessel owners holding an
active Federal commercial or charter/party permit for summer flounder,
scup, or black sea bass, as well as owners of vessels that fish for any
of these species in state waters. The Council estimates that the 2009
quotas could affect 2,263 vessels that held a Federal summer flounder,
scup, and/or black sea bass permit in 2007, the most recent year for
which complete permit data exists. The more immediate impact of this
final rule will likely be felt by the 891 vessels that actively
participated (i.e., landed these species) in these fisheries in 2007.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
No additional reporting, recordkeeping, or other compliance
requirements are included in this final rule.
Description of the Steps Taken to Minimize Economic Impact on Small
Entities
Specification of commercial quotas and possession limits is
constrained by the conservation objectives set forth in the FMP and
implemented at 50 CFR part 648 under the authority of the Magnuson-
Stevens Act. Economic impacts of reduced quota specifications, which
reduce the number of fish that may be taken by participants of both
commercial and recreational fisheries, may be offset by adjustments to
such measures as commercial fish sizes, changes to mesh sizes, gear
restrictions, or possession and trip limits that may increase
efficiency or value of the fishery. For 2009, no such adjustments were
recommended by the Council; therefore, this final rule contains no such
measures. Therefore, the economic impact analysis of the action is
evaluated solely on the different levels of quota specified in the
alternatives. The ability of NMFS to minimize economic impacts for this
action is constrained to approving quota levels that provide the
maximum availability of fish while still ensuring that the required
objectives and directives of the FMP, its implementing regulations, and
the Magnuson-Stevens Act, particularly the stock rebuilding
requirements of all three species rebuilding plans, are met.
The economic analysis for the 2009 specification assessed the
impacts for quota alternatives that achieve the aforementioned
objectives. The no action alternative, wherein no quotas are
established for 2009, was excluded from analysis because it is not
consistent with the goals and objectives of the FMP and the Magnuson-
Stevens Act. Implementation of the no action alternative in 2009 would
substantially complicate the approved management programs for these
three species. NMFS is required under the FMP's implementing
regulations to specify and implement a TAL (and TAC for scup) for these
fisheries on an annual basis. The no action alternative would result in
no TAL (and no scup TAC) for 2009, and would likely result in
overfishing of the resources and substantially compromise the stock
rebuilding and/or mortality objectives for each species.
Furthermore, Alternative 2 from the Council's analysis contains the
most restrictive TAL options (i.e., the lowest catch levels). While
this alternative would achieve the required objectives for all three
species, it carries the highest potential negative impact on small
entities in the form of foregone fishing opportunity. Alternative 2 was
not preferred by the Council or NMFS because other alternatives
considered have lower impacts on small entities while achieving the
stated objectives of the 2009 specification process.
Alternative 3 (least restrictive quotas; highest catch levels)
would produce the smallest impact on small entities. For summer
flounder, the Alternative 3 TAL was consistent with the Council's SSC
recommendation for ABC. The Council expressed concerns that setting the
TAL equal to ABC would not provide any leeway for implementation
imprecision, and that the summer flounder stock has only 4 years
remaining to achieve the rebuilding biomass objective. NMFS agrees that
setting TAL equal to ABC while the stock is under a rebuilding plan and
not yet rebuilt is not the most prudent course of action. For black sea
bass, the Alternative 3 measures would retain the status quo. The black
sea bass TAL under this alternative would be inconsistent with the
rebuilding plan because the resulting landings level would be higher
than permitted under the rebuilding plan's fishing mortality
calculation. Therefore, while the summer flounder and black sea bass
TALs of Alternative 3 may mitigate economic impacts on small entities
by providing greater harvest opportunities, both the Council and NMFS
find the resulting harvest levels to be inconsistent with the goals and
objectives of the annual specifications and stock rebuilding programs.
Through this final rule, NMFS implements the summer flounder and
black sea bass TALs contained in Alternative 1, the Council's preferred
alternatives, which consist of the quota alternatives with an
intermediate level economic impacts to small entities when compared to
Alternatives 2 and 3 for those two species. NMFS also implements scup
TAL Alternative 3, the least restrictive alternative analyzed by the
Council, for the reasons outlined in the preamble to this rule (i.e.,
change in stock status resulting from the DPWG findings in the interim
months between the Council's recommendation and this final rule). Scup
TAL Alternative 3 has the lowest economic impact to small entities when
compared to Alternatives 1 and 2. Relative to 2008, the 2009 commercial
quotas and recreational harvest measures in this action would result in
the following TAL changes for the commercial and recreational sectors:
(1) A 17.0-percent increase for summer flounder;
(2) a 52.3-percent increase for scup; and
(3) a 52.0-percent decrease for black sea bass.
TAL Alternatives 1 for summer flounder and black sea bass were
selected because they satisfy NMFS's obligation to implement
specifications that are consistent with the goals, objectives, and
requirements of the FMP, its implementing regulations, and the
Magnuson-Stevens Act. TAL Alternative 3 for scup was selected because
it allows for an increase of the 2009 specifications above the level
contained in the Council's recommended scup Alternative 1 and endorsed
by NMFS in the proposed rule in reaction to the most recent peer-
[[Page 38]]
reviewed information regarding stock status. This stock status
information was not available when the Council deliberated 2009 TAL
options in August, nor was the information available when NMFS
published the proposed rule in October. The DPWG concluded its work in
early December. As previously stated in the preamble, when final DPWG
reports regarding stock are available in early 2009, NMFS may take
additional action to modify the 2009 scup specifications implemented by
this final rule. The Alternative 1 TAL for summer flounder is
sufficiently risk-averse, providing a high probability that the
rebuilding F rate and an even higher probability that the overfishing
threshold (F35 percent ) will not be exceeded in 2009. Given
the regulatory and statutory requirements, Alternative 1 minimizes, to
the extent practicable, the economic impacts on small entities that
participate in the summer flounder fishery. The black sea bass quota in
Alternative 1 was selected because it is consistent with the TAL
calculation methodology of the rebuilding plan and results in a measure
that will adequately constrain harvest in 2009, and provide continued
rebuilding of the overfished stock. The scup TAL contained in
Alternative 3 provides the maximum harvest level analyzed by the
Council and is consistent with the revised stock status information
verbally endorsed for management advice by the DPWG peer review panel.
In addition, the scup Alternative 3 TAL remains consistent with F rate
contained in the Amendment 14 scup rebuilding plan, which remains
effective until formal advice is conveyed in the final DPWG reports.
The revenue decreases associated with the RSA program are expected
to be minimal, and are expected to yield important benefits associated
with improved fisheries data. It should also be noted that fish
harvested under the RSA program would be sold, and the profits would be
used to offset the costs of research. As such, total gross revenues to
the industry will not decrease substantially, if at all, as a result of
this final rule authorizing RSA for 2009.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a small entity compliance guide will be sent
to all holders of Federal permits issued for the summer flounder, scup,
and black sea bass fisheries. In addition, copies of this final rule
and guide (i.e., permit holder letter) are available from NMFS (see
ADDRESSES) and at the following Web site: http://www.nero.noaa.gov.
Authority: 16 U.S.C. 1801 et seq.
Dated: December 24, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
[FR Doc. E8-31236 Filed 12-31-08; 8:45 am]
BILLING CODE 3510-22-P