[Federal Register Volume 70, Number 249 (Thursday, December 29, 2005)]
[Rules and Regulations]
[Pages 77060-77067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24583]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 051104293-5344-02; I.D. 102705B]
RIN 0648-AT27


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; 2006 Summer Flounder, Scup, and 
Black Sea Bass Specifications; Preliminary 2006 Quota Adjustments; 2006 
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 2006 summer flounder, 
scup, and black sea bass fisheries, and makes preliminary adjustments 
to the 2006 commercial quotas for these fisheries. This final rule 
specifies allowed harvest limits for both commercial and recreational 
fisheries, including scup possession limits. This action prohibits 
federally permitted commercial vessels from landing summer flounder in 
Delaware in 2006. Regulations governing the summer flounder fishery 
require publication of this notification to advise the State of 
Delaware, Federal vessel permit holders, and Federal dealer permit 
holders that no commercial quota is available for landing summer 
flounder in Delaware in 2006. This action also defines the total length 
measurement for black sea bass and makes changes to the regulations 
regarding the commercial black sea bass pot/trap fishery. The intent of 
this action is to establish harvest levels and other measures to attain 
the target fishing mortality (F) or exploitation rates, as specified 
for these species in the Summer Flounder, Scup, and Black Sea Bass 
Fishery Management Plan (FMP), to reduce bycatch, and to improve the 
efficiency of the commercial black sea bass fishery.

DATES: The 2006 final specifications are effective from January 1, 
2006, through December 31, 2006. The amendment to the definition of 
``Total Length'' in Sec.  648.2 is effective January 1, 2006. The 
amendment to the definition of ``Total Length'' in Sec.  648.2 is 
effective January 1, 2006. The amendments to the black sea bass gear 
restrictions at Sec.  648.144(b)(2) are effective January 1, 2007.

ADDRESSES: Copies of the specifications document, including the 
Environmental Assessment (EA), Regulatory Impact Review (RIR), the 
Initial Regulatory Flexibility Analysis (IRFA), and other supporting 
documents used by the Summer Flounder, Scup, and Black Sea Bass 
Monitoring Committees are available from Daniel Furlong, Executive 
Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal 
Building, 300 South 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, One Blackburn Drive, 
Gloucester, MA 01930-2298.

FOR FURTHER INFORMATION CONTACT: Sarah McLaughlin, Fishery Policy 
Analyst, (978) 281-9279.

SUPPLEMENTARY INFORMATION:

Background

    The summer flounder, scup, and black sea bass fisheries are managed 
cooperatively by the Atlantic States Marine Fisheries Commission 
(Commission) and the Mid-Atlantic Fishery Management Council (Council), 
in consultation with the New England and South Atlantic Fishery 
Management Councils. The management units specified in the FMP include 
summer

[[Page 77061]]

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. Implementing regulations for 
these fisheries are found at 50 CFR part 648, subpart A (general 
provisions), subpart G (summer flounder), subpart H (scup), and subpart 
I (black sea bass).
    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 (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 2006 specifications for these fisheries was provided in the 
proposed specifications (70 FR 69722, November 17, 2005). That 
information is not repeated here.
    NMFS will establish the 2006 recreational management measures for 
summer flounder, scup, and black sea bass by publishing a proposed and 
final rule in the Federal Register at a later date, following receipt 
of the Council's recommendations as specified in the FMP.

Summer Flounder

    The FMP specifies a target F of Fmax, that is, the level 
of fishing that produces maximum yield per recruit. The best available 
scientific information indicates that, for 2006, Fmax for 
summer flounder is 0.276 (equal to an exploitation rate of about 22 
percent from fishing). The Total Allowable Landings (TAL) associated 
with the target F is allocated 60 percent to the commercial sector and 
40 percent to the recreational sector. The commercial quota is 
allocated to the coastal states based upon percentage shares specified 
in the FMP. The recreational harvest limit is specified on a coastwide 
basis. Recreational measures will be the subject of a separate 
rulemaking early in 2006.
    This final rule implements the specifications contained in the 
November 17, 2005, proposed rule--a summer flounder TAL of 23.59 
million lb (10,700 mt) for 2006. The TAL for 2006 is allocated 
14,154,000 lb (6,420 mt) to the commercial sector and 9,436,000 lb 
(4,280 mt) to the recreational sector. This TAL has at least a 50-
percent probability of achieving the target F of 0.276 in 2006, if the 
2005 TAL and assumed discard levels are not exceeded. Three research 
projects that would utilize the full summer flounder research set-aside 
(RSA) of 355,762 lb (161 mt) have been conditionally approved by NMFS 
and are currently awaiting notice of award. After deducting this RSA, 
the TAL is divided into a commercial quota of 13,940,543 lb (6,303 mt) 
and a recreational harvest limit of 9,293,695 lb (4,216 mt). If a 
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.
    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 2005, 
plus any previously unaccounted for landings from January-December 
2004. Table 1 summarizes, for each state, the commercial summer 
flounder percent share, the 2006 commercial quota (both initial and 
less the RSA), the 2005 quota overages as described above, and the 
resulting final adjusted 2006 commercial quota less the RSA.

                                     Table 1.--Final State-by-State Commercial Summer Flounder Allocations for 2006
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Initial quota       Initial quota,  less RSA     2005 Quota overages      Adjusted quota,  less
                                       Percent   ----------------------------------------------------  (through 10/31/05) \1\            RSA \2\
               State                    share                                                        ---------------------------------------------------
                                                       lb           kg           lb           kg           lb           kg           lb           kg
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME................................       0.04756        6,732        3,053        6,630        3,007            0            0        6,630        3,007
NH................................       0.00046           65           30           64           29            0            0           64           29
MA................................       6.82046      965,368      437,891      950,809      431,287       19,059        8,645      931,750      422,635
RI................................      15.68298    2,219,769    1,006,887    2,186,293      991,702            0            0    2,186,293      991,702
CT................................       2.25708      319,467      144,910      314,649      142,725            0            0      314,649      142,725
NY................................       7.64699    1,082,355      490,956    1,066,032      483,552      130,089       59,007      935,943      424,537
NJ................................      16.72499    2,367,255    1,073,787    2,331,554    1,057,593            0            0    2,331,554    1,057,593
DE................................       0.01779        2,518        1,142        2,480        1,125       49,033       22,241     (46,553)     (21,116)
MD................................       2.03910      288,614      130,915      284,262      128,941            0            0      284,262      128,941
VA................................      21.31676    3,017,174    1,368,590    2,971,672    1,347,950            0            0    2,971,672    1,347,950
NC................................      27.44584    3,884,684    1,762,093    3,826,099    1,735,519            0            0    3,826,099    1,735,519
                                   ---------------
    Total \3\.....................     100.00      14,154,000    6,420,254   13,940,543    6,323,430      198,181       89,893   13,788,916   6,254,547
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\1\ 2005 quota overage is determined through comparison of landings for January through October 2005, plus any landings in 2004 in excess of the 2004
  quota (that were not previously addressed in the 2005 specifications), with the final 2005 quota for each state (70 FR 303, January 4, 2005). For
  Delaware, includes continued repayment of overharvest from 2004.
\2\ Parentheses indicate a negative number.
\3\ Total quota is the sum of all states having allocation. A state with a negative number has an 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 2006 final summer flounder specifications 
because NMFS does not have authority to establish such subcategories.

Delaware Summer Flounder Closure

    Table 1 (above) indicates that, for Delaware, the amount of the 
2005

[[Page 77062]]

summer flounder quota overage (inclusive of overharvest from 2004) is 
greater than the amount of commercial quota allocated to Delaware for 
2006. As a result, there is no quota available for 2006 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 Regional Administrator has determined no longer has 
commercial quota available for harvest. Therefore, effective January 1, 
2006, landings of summer flounder in Delaware by vessels holding 
commercial Federal summer flounder fisheries permits are prohibited for 
the 2006 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 2006 calendar year, unless additional quota becomes available 
through a transfer, as mentioned above.

Scup

    The target exploitation rate for scup for 2006 is 21 percent. The 
FMP specifies that the Total Allowable Catch (TAC) associated with a 
given exploitation rate be allocated 78 percent to the commercial 
sector and 22 percent to the recreational sector. Scup discard 
estimates are deducted from both sectors' TACs to establish TALs for 
each sector, i.e., TAC minus discards equals TAL. The commercial TAC, 
discards, and TAL (commercial quota) are then 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. Recreational measures 
will be the subject of a separate rulemaking early in 2006.
    This final rule implements the specifications contained in the 
November 17, 2005, proposed rule, i.e., a 19.79-million-lb (8,977-mt) 
scup TAC and a 16.27-million-lb (7,380-mt) scup TAL. After deducting 
184,690 (84 mt) of RSA for the three approved research projects, the 
TAL is divided into a commercial quota of 11,932,142 lb (5,412 mt) and 
a recreational harvest limit of 4,153,168 lb (1,884 mt). If a 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.
    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 2005 
periods, plus any previously unaccounted for landings from January-
December 2004. Table 2 presents the final 2005 commercial scup quota 
for each period and the reported 2005 landings for the 2005 Winter I 
and Summer periods; there was no overage of the Winter I or Summer 
quota. On August 2, 2005 (70 FR 44291), and as corrected on October 4, 
2005 (70 FR 57802), NMFS announced a transfer of quota from Winter I to 
Winter II 2005. Per the quota counting procedures, after June 30, 2006, 
NMFS will compile all available landings data for Winter II 2005 and 
compare the landings to the Winter II 2005 allocation, as adjusted. Any 
overages will be determined and required deductions will be made to the 
Winter II 2006 allocation.

                                           Table 2.--Scup Preliminary 2005 Commercial Landings by Quota Period
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          2005 quota            Reported 2005 landings through   Preliminary overages as
                                                               --------------------------------            10/31/05                    of 10/31/05
                         Quota period                                                          ---------------------------------------------------------
                                                                      lb              kg              lb              kg             lb           kg
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Winter I......................................................       5,518,367       2,503,089       3,709,863       1,682,766            0            0
Summer........................................................       4,764,806       2,161,280       4,062,810       1,842,860            0            0
Winter II.....................................................       1,949,962         884,488             N/A             N/A          N/A          N/A
                                                               -----------------
    Total.....................................................      12,233,135       5,548,857       7,772,673       3,525,626          N/A         N/A
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N/A= Not applicable.

    Table 3 presents the commercial scup percent share, 2006 TAC, 
projected discards, 2006 initial quota (with and without the RSA 
deduction), and initial possession limits, by quota period. To achieve 
the commercial quotas, this final rule implements a 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 2006 by Quota Period
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Total allowable catch         Discards              Initial quota      Initial quota less RSA     Possession limits
                                                                Percent  ------------------------------------------------------------------------------------------------     (per trip) \1\
                        Quota period                             share                                                                                                   -----------------------
                                                                              lb          mt          lb          mt          lb          mt          lb          mt          lb          kg
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Winter I....................................................       45.11   6,963,270       3,159   1,515,696         688   5,447,574       2,471   5,382,589       2,442      30,000      13,608
Summer......................................................       38.95   6,012,400       2,727   1,308,720         594   4,703,680       2,134   4,647,569       2,108         N/A         N/A
Winter II...................................................       15.94   2,460,530       1,116     535,584         243   1,924,946         873   1,901,983         863       2,000         907
                                                             -------------
    Total \2\...............................................      100.00  15,436,200       7,002   3,360,000       1,524  12,076,200       5,478  11,932,142       5,412         N/A         N/A
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\1\ 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.
\2\ Metric tons and kilograms are as converted from pounds and may not necessarily add due to rounding.
N/A = Not applicable.


[[Page 77063]]

    As described in the November 17, 2005, proposed rule, the Council 
and the Commission's Summer Flounder, Scup, and Black Sea Bass 
Management Board (Board) recommended an increase in the Winter II 
possession limit-to-rollover amount ratios, i.e., an increase from 500 
lb (227 kg) to 1,500 lb (680 kg) per 500,000 lb (227 mt) of unused 
Winter I period quota transferred to the Winter II period. NMFS is 
implementing this recommendation, as presented in Table 4, because it 
would increase the likelihood of achieving the Scup Winter II quota.

          Table 4.--Potential Increase in Winter II Possession Limits Based on the Amount of Scup Rolled Over From Winter I to Winter II Period
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          Initial Winter II possession limit                 Rollover from Winter I to Winter II         Increase in initial         Final Winter II
-----------------------------------------------------------------------------------------------------   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
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

    For 2006, the target exploitation rate for black sea bass is 25 
percent. The FMP specifies that the TAL associated with a given 
exploitation rate be allocated 49 percent to the commercial sector and 
51 percent to the recreational sector. The recreational harvest limit 
is allocated on a coastwide basis. Recreational measures will be the 
subject of a separate rulemaking early in 2006.
    This final rule implements the specifications contained in the 
November 17, 2005, proposed rule, i.e., an 8-million-lb (3,629-mt) 
black sea bass TAL. After deducting 178,956 lb (81 mt) of RSA for the 
four approved research projects, the TAL is divided into a commercial 
quota of 3,832,312 lb (1,738 mt) and a recreational harvest limit of 
3,988,732 lb (1,809 mt). If a 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 2005, plus any 
previously unaccounted for landings from January-December 2004. No 
adjustment to the 2006 commercial quota is necessary.

Other Black Sea Bass Management Measures

    This final rule makes two changes to the regulations regarding the 
commercial black sea bass pot/trap fishery. First, NMFS increases the 
number of required vents in the parlor portion of the pot or trap from 
one to two. Black sea bass traps constructed of wooden laths may have, 
instead, escape vents constructed by leaving spaces of at least 1.375 
inches (3.49 cm) between two sets of laths in the parlor portion of the 
trap. Second, NMFS increases the minimum circle vent size for pots and 
traps from 2.375 inches (6.03 cm) to 2.5 inches (6.4 cm) in diameter. 
The purpose of these modifications is to allow for greater escapement 
of sublegal fish and other non-target species from black sea bass pots 
and traps. To allow fishery participants time to comply with the 
changes to the black sea bass pot and trap gear restrictions, the 
effective date of this change in regulations is January 1, 2007.
    In addition, NMFS clarifies that, for black sea bass, total length 
measurement should not include the caudal fin tendril. NMFS amends the 
total length definition to exclude explicitly any caudal filament in 
the measurement of black sea bass.

Comments and Responses

    NMFS received 58 written comments during the comment period for the 
November 17, 2005, proposed rule. Significant issues and concerns are 
summarized below and responded to as follows.
    Comment 1: Several recreational fishery participants wrote in 
opposition of the proposed summer flounder TAL. Most of the commenters 
expressed concern about the potential effect of a TAL reduction on the 
recreational industry. These comments focused on the NJ recreational 
summer flounder fishery in particular. One commenter indicated that the 
commercial sector will maintain a portion of profits through higher 
fish prices, while the recreational sector and shore communities will 
be disproportionately affected. Some commenters stated that the 
commercial/recreational summer flounder TAL allocation scheme is unfair 
and contrary to historical landings. Several commenters were concerned 
about commercial bycatch and opposed the 14-inch (35.6 cm) commercial 
minimum fish size for summer flounder.
    Response: As of the December 7, 2005, Council meeting, projected 
recreational landings for 2005 indicate that, coastwide, summer 
flounder recreational landings must be reduced by 3.6 percent to 
achieve the 2006 recreational harvest limit. However, under 
conservation equivalency, which was recommended by the Council and 
Board, if approved by NMFS for the 2006 fishing year, MA, CT, and NY 
would be required to reduce summer flounder landings (in number of 
fish) in 2006 by 15 percent, 34 percent, and 30 percent, respectively. 
See Response 2 for more information regarding conservation equivalency. 
The Council plans to address summer flounder TAL allocation and bycatch 
issues, among others, in Amendment 15 to the FMP, and plans to begin 
public scoping on these issues in the spring of 2006.
    Comment 2: Several commenters expressed concern about summer 
flounder recreational management measures, particularly for NJ.
    Response: In the last several years, the Council and Board have 
recommended, and NMFS has approved, conservation equivalency for summer 
flounder, allowing each state to determine and implement the possession 
limit, minimum fish size, and fishing season appropriate to achieve the 
necessary state landings reduction. NMFS may waive Federal requirements 
regarding recreational management measures for federally permitted 
vessels landing summer flounder in a state with an approved 
conservation equivalency program; those vessels then are subject to the 
management measures in the state

[[Page 77064]]

in which they land. It is important to note that, in many cases, the 
relaxation of a minimum size would require a stricter possession limit 
or shorter fishing season.
    As described above, the best available information indicates that 
no reduction in landings from the 2005 level will be necessary for NJ 
to achieve its landing target. Therefore, NMFS does not anticipate that 
NJ would implement more restrictive recreational management measures 
than those implemented for 2005. The recreational management measures 
for 2006 will be addressed in a separate rulemaking in early 2006, 
following receipt and review of the Council's recommendations.
    Comment 3: Several commenters stated that the proposed summer 
flounder TAL reduction is unreasonable and unnecessary, that the stock 
assessment information is not strong enough to make such a decision, 
and that the status quo TAL (or the 33-million-lb (14,969-mt) TAL 
previously specified for 2006) should be maintained. Some supported the 
Council-recommended TAL of 26-million-lb (11,793 mt) for 2006-2008. 
Many of the commenters stated that they believe that the stock is 
healthy and noted the abundance of sublegal summer flounder (for NJ, 
less than 16.5 inches (41.9 cm)) as evidence. Some commenters cautioned 
that more restrictive recreational management measures may result in 
civil disobedience, especially regarding the minimum fish size.
    Response: At the 41st Northeast Regional Stock Assessment Workshop, 
the Stock Assessment Review Committee (SARC) found that the 2005 stock 
assessment provided sound scientific advice for management. The SARC 
indicated that the overfishing of the summer flounder stock is 
occurring relative to the biological reference points established in 
Amendment 12 to the FMP, and as updated by the Northeast Fisheries 
Science Center's Southern Demersal Species Working Group. Under the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), NMFS is required to prevent overfishing. Further, a 2000 
Federal Court Order requires that NMFS set a TAL that has at least a 
50-percent probability of achieving the F target. Because the F target 
is set for a calendar year, NMFS maintains that setting a TAL greater 
than 23.59-million-lb ((10,700 mt) would be contrary to the objectives 
of the FMP and the Federal Court Order.
    Comment 4: Attorneys for two recreational fishing associations (NY 
and NJ) suggested that the 2000 Federal Court Order is not controlling 
under the present set of facts and circumstances, i.e., it does not 
require NMFS to set the summer flounder TAL at 23.59-million-lb (10,700 
mt), and urged NMFS to follow the Council's recommendation for a 26-
million-lb (11,793-mt) summer flounder TAL for 2006-2008 in order to 
rebuild to the biomass target by 2010, while reducing major social and 
economic costs of cutting the TAL from 33-million-lb (14,969 mt) to 
23.59-million-lb (10,700 mt). One of the commenters expressed concern 
about NMFS basing its TAL decision on the stock assessment, and NMFS 
not taking into greater consideration the potential economic impacts on 
fishing communities. The commenter contends that the stock assessment 
is based partially on unreliable Marine Recreational Fishery Statistics 
Survey and trawl survey data. One recreational fishery participant made 
similar comments regarding the Court decision.
    Response: F targets are set on an annual basis and are based on the 
F that would result in the maximum yield per recruit (Fmax). 
Analysis indicates that a constant TAL of 26-million-lb (11,793 mt) for 
2006 through 2008 has only a 25-30 percent probability of achieving the 
2006 F target. After careful consideration of the 2000 Federal Court 
Order in Natural Resources Defense Council, Inc., et al., v. Daley, 
NMFS finds that it is necessary to set a summer flounder TAL that has 
at least a 50-percent probability of achieving the 2006 F target, for 
the 2006 fishing year. In that case, the Court held that ``at the very 
least this means that ``to assure'' the achievement of the target F, to 
``prevent overfishing'' and to ``be consistent with'' the fishery 
management plan, the TAL must have had at least a 50-percent chance of 
attaining an F of 0.24'', which was the Fmax value at the 
time. Although Framework Adjustment 5 to the FMP allows for the setting 
of multi-year TALs, the framework did not contemplate setting TALs that 
are projected not to achieve the F target in each year. NMFS finds that 
implementing multi-year TALs that would not achieve the F target in any 
year fails to meet the probability standard contemplated in the Federal 
Court Order.
    Comment 5: One commenter, representing a commercial seafood 
association, wrote in support of the proposed scup and black sea bass 
TALs, the RSA amounts, and commercial scup measures, and of a 26-
million-lb (11,793-mt) summer flounder TAL for 2006-2008.
    Response: This final rule implements the scup and black sea bass 
specifications and management measures as proposed. An explanation 
regarding NMFS'' decision to implement the 23.59-million-lb (10,700-mt) 
TAL is provided above.
    Comment 6: Representatives of three environmental organizations 
submitted a joint letter expressing concern about NMFS'' reliance on a 
50-percent probability standard in setting a TAL, given that F has 
historically been underestimated. The commenters noted that, in prior 
years, a 75-percent probability has been used. They also asked that the 
final rule elucidate how the 23.59-million-lb (10,700-mt) TAL is 
consistent with the rebuilding requirements of the Magnuson-Stevens 
Act. Lastly, the commenters asked that NMFS be prepared to consider 
alternative management approaches in the event that the Board approves 
a 26-million-lb (11,793-mt) TAL.
    Response: Although NMFS did set TALs for 2005 and, preliminarily, 
for 2006, that were estimated to have a 75-percent probability of 
achieving the 2005 F target of 0.26, setting a TAL that is projected to 
have less than a 75-percent probability of achieving the target F is 
consistent with the 2000 Federal Court Order. The target F is derived 
according to the provisions in the FMP and is based on Fmax, 
the proxy for the threshold F that would produce the maximum 
sustainable yield (Fmsy). The stock assessment completed in 
2005 concluded that the summer flounder stock continues to rebuild, 
albeit at a slower rate than previously projected. The 2006 TAL of 
23.59-million-lb (10,700 mt) represents a 22-percent decrease from the 
2005 TAL of 30.3-million-lb (13,744 mt), and is intended to ensure that 
the stock continues to rebuild. This level of TAL will reduce removals 
and allow for greater growth of the biomass. This approach will allow 
for TAL specification that is expected to achieve the B target of 204-
million-lb (92,532 mt) by the end of 2009.
    On December 6, 2005, the Board approved a 2006 TAL of 23.59-
million-lb (10,700 mt). Therefore, it is not necessary for NMFS to 
consider alternative measures to constrain the states to their 
commercial quotas.
    Comment 7: Another commenter requested more restrictive measures 
(increased minimum fish sizes, lower TALs) for all three species.
    Response: NMFS did not consider minimum fish sizes as part of this 
rulemaking. NMFS has reviewed the best available scientific information 
and the recommendations of the Council and selected management measures

[[Page 77065]]

designed to achieve the target F or exploitation rate for each fishery 
while minimizing the impact on fishery participants.
    NMFS received several comments on issues not specifically related 
to this rulemaking, including: Some supporting more lenient minimum 
fish sizes for summer flounder recreational fishermen; some concerned 
about the impacts of release mortality on the summer flounder stock; a 
few expressing concern about composition of the Council; one suggesting 
that NMFS place observers on party boats rather than using random 
recreational surveys; one suggesting that no summer flounder size 
limits be implemented but that anglers be required to keep all fish up 
to the possession limit amount; one suggesting split minimum fish sizes 
for summer flounder; one suggesting required use of circle hooks for 
recreational summer flounder fishing; and one supporting designation of 
marine protected areas to allow the stocks to rebuild. While NMFS 
acknowledges that consideration of these concerns is important, this 
rule is not the proper mechanism to address these issues.

Classification

    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. This action establishes 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 by the Council of the final EA/
RIR/IRFA, which occurred in October 2005, in order for the agency to 
provide the public with information from the environmental and economic 
analyses, as required in rulemaking. The Council provided a supplement 
to the document in November 2005. NMFS published the proposed rule on 
November 17, 2005, with an abbreviated, 15-day comment period, in order 
to allow for finalization of the proposed regulatory changes by January 
1, 2006. NMFS was unable to obtain the necessary data from the Council 
before October 2005 to finalize the specifications. Therefore, in order 
to implement the 2006 specifications before the beginning of the 
fishing season beginning January 1, 2006, NMFS must waive the 30-day 
delay in effectiveness.
    If implementation of the specifications is delayed, NMFS will be 
prevented from carrying out its legal obligation to prevent overfishing 
of these three species. The fisheries covered by this action will begin 
making landings on January 1, 2006. If a delay in effectiveness were to 
be required, and a quota were to be harvested during a delayed 
effectiveness period, the lack of effective quota specifications would 
prevent NMFS from closing the fishery. The scup and black sea bass 
fisheries are expected to be active at the start of the fishing season 
in 2006. In addition, this rule is necessary to keep summer flounder 
from being landed in Delaware, which is in a negative quota situation.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Included in this final rule is the FRFA prepared pursuant to 5 
U.S.C. 604(a). The FRFA incorporates the IRFA, a summary of the 
significant issues raised by the public comments in response to the 
IRFA, and NMFS' 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).
    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 explained in 
the preambles to the proposed rule and this final rule and are not 
repeated here.

Summary of Significant Issues Raised in Public Comments

    Several of the comment letters received on the proposed rule 
specifically addressed the potential economic impact of reduction of 
the summer flounder TAL on the recreational fishing industry, 
particularly in NJ. No changes to the proposed rule were required to be 
made as a result of public comments. 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 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 2006 quotas could affect 2,162 
vessels that held a Federal summer flounder, scup, and/or black sea 
bass permit in 2004. However, the more immediate impact of this final 
rule will likely be felt by the 906 vessels that actively participated 
(i.e., landed these species) in these fisheries in 2004.

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

    Economic impacts are being minimized to the extent practicable with 
the quota specifications being implemented in this final rule, while 
remaining consistent with the target fishing mortality rates or target 
exploitation rates specified in the FMP. Specification of commercial 
quotas and possession limits is constrained by the conservation 
objectives of the FMP, and implemented at 50 CFR part 648 under the 
authority of the Magnuson-Stevens Act.
    The economic analysis assessed the impacts of the various 
management alternatives. In the EA, the no action alternative is 
defined as follows: (1) No proposed specifications for the 2006 summer 
flounder, scup, and black sea bass fisheries would be published; (2) 
the indefinite management measures (minimum mesh sizes, minimum fish 
sizes, possession limits, permit and reporting requirements, etc.) 
would remain unchanged; (3) there would be no quota set-aside allocated 
to research in 2006; (4) the existing black sea bass pot and trap gear 
restrictions would remain in place; and (5) there would be no specific 
cap on the allowable annual landings in these fisheries (i.e., there 
would be no quotas). Implementation of the no action alternative would 
be inconsistent with the goals and objectives of the FMP, its 
implementing regulations, and the Magnuson-Stevens Act. In addition, 
the no action alternative would substantially complicate the approved 
management program for these fisheries, and would very likely result in 
overfishing of the resources. Therefore, the no action alternative is 
not considered to be a reasonable alternative to the preferred action 
and is not analyzed in the EA/RIR/IRFA/FRFA.
    Alternative 1 consists of the harvest limits proposed by the 
Council for

[[Page 77066]]

summer flounder, and the Council and Board for scup and black sea bass. 
Alternative 2 consists of the most restrictive quotas (i.e., lowest 
landings) considered by the Council and the Board for all of the 
species. Alternative 3 consists of the status quo quotas, which were 
the least restrictive quotas (i.e., highest landings) considered by the 
Council and Board for all three species. Although Alternative 3 would 
result in higher landings for 2006, it would also likely exceed the 
biological targets specified in the FMP.
    Table 5 presents the 2006 initial TALs, RSA, commercial quotas 
adjusted for RSA, and preliminary recreational harvests for the 
fisheries under these three quota alternatives.

                                  Table 5.--Comparison, in LB (MT), of the Alternatives of Quota Combinations Reviewed
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         2005
                                                Initial TAL               RSA         commercial       Preliminary adjusted     Preliminary recreational
                                                                                     quota overage       commercial quota            harvest limit
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Quota Alternative 1 (Preferred)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summer Flounder.......................  26.0 million..............         355,762         191,181  15.2 million.............  10.26 million.
                                        (11,793)..................           (161)            (87)  (6,893)..................  (4,653)
Scup..................................  16.27 million.............         184,690           0.000  11.93 million............  4.15 million.
                                        (7,380)...................            (84)                  (5,412)..................  (1,884)
Black Sea Bass........................  8.0 million...............         178,956            0.00  3.83 million.............  3.99 million.
                                        (3,629)...................            (81)                  (1,738)..................  (1,809)
---------------------------------------
                                                         Quota Alternative 2 (Most Restrictive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summer Flounder.......................  23.59 million.............         355,762         191,181  13.75 million............  9.29 million.
                                        (10,700)..................           (161)            (87)  (6,237)..................  (4,217)
Scup..................................  10.77 million.............         184,690            0.00  7.65 million.............  2.94 million.
                                        (4,885)...................            (84)                  (3,468)..................  (1,333)
Black Sea Bass........................  7.5 million...............         178,956            0.00  3.59 million.............  3.73 million.
                                        (3,402)...................            (81)                  (1,627)..................  (1,694)
---------------------------------------
                                                   Quota Alternative 3 (Status Quo--Least Restrictive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summer Flounder.......................  30.3 million..............         355,762         191,181  17.78 million............  11.98 million.
                                        (13,744)..................           (161)            (87)  (8,063)..................  (5,433)
Scup..................................  16.5 million..............         184,690            0.00  12.12 million............  4.2 million.
                                        (7,484)...................            (84)                  (5,496)..................  (1,905)
Black Sea Bass........................  8.2 million...............         178,956            0.00  3.93 million.............  4.09 million.
                                        (3,719)...................            (81)                  (1,782)..................  (1,856)
--------------------------------------------------------------------------------------------------------------------------------------------------------

For clarity, note that this final rule implements quotas contained in 
Alternative 1 for scup and black sea bass (the Council and Board's 
preferred alternatives for these fisheries) and in Alternative 2 for 
summer flounder. Relative to 2005, the 2006 commercial quotas and 
recreational harvest limits contained in this action would result in a 
22-percent decrease for each sector, respectively, a 2-percent decrease 
and 5-percent increase in scup landings for the commercial and 
recreational sectors, respectively, and a 3-percent decrease in black 
sea bass landings for both sectors; percentage changes associated with 
each alternative are discussed in the proposed rule. The measures 
contained in this action were chosen because they provide for the 
maximum level of landings that still achieve the fishing mortality and 
exploitation targets specified in the FMP.
    The commercial scup possession limits and the amount of increase to 
the Winter II possession limit-to-rollover amount ratio were chosen as 
an appropriate balance between the economic concerns of the industry 
(i.e., landing enough scup to make the trip economically viable) and 
the need to ensure the equitable distribution of the quota over each 
period. Further, these actions are intended to help convert scup 
discards to landings, thereby improving the efficiency of the 
commercial scup fishery, and increasing the likelihood of achieving the 
Winter II quota.
    The decision to require a second vent in the parlor portion of 
black sea bass traps and to increase the minimum size for circular 
vents to 2.5 inches (6.4 cm) in diameter was made based on 
recommendations from a 2005 black sea bass commercial industry workshop 
and is expected to reduce the mortality of sublegal fish, thereby 
improving the efficiency of the commercial black sea bass fishery (via 
increasing yields and amount of mature fish in the stock).
    Finally, the revenue decreases associated with the RSA program are 
expected to be minimal, and are expected to yield important long-term 
benefits associated with improved fisheries data. It should also be 
noted that fish harvested under the RSAs would be sold, and the profits 
would be used to offset the costs of research. As such, total gross 
revenue to the industry would not decrease substantially if the RSAs 
are utilized.

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.

[[Page 77067]]

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: December 22, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

0
For the reasons stated in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.2, add a second sentence to the definition of ``Total 
Length'' to read as follows:


Sec.  648.2  Definitions.

* * * * *
    Total Length (TL) * * * For black sea bass, Total Length (TL) means 
the straight-line distance from the tip of the snout to the end of the 
tail (caudal fin), excluding any caudal filament, while the fish is 
lying on its side.
* * * * *
0
3. In Sec.  648.144, revise paragraph (b)(2) to read as follows:


Sec.  648.144  Gear restrictions.

* * * * *
    (b) * * *
    (2) All black sea bass traps or pots must have two escape vents 
placed in lower corners of the parlor portion of the pot or trap that 
each comply with one of the following minimum size requirements: 1.375 
inches by 5.75 inches (3.49 cm by 14.61 cm); a circular vent of 2.5 
inches (6.4 cm) in diameter; or a square vent with sides of 2 inches 
(5.1 cm), inside measure; however, black sea bass traps constructed of 
wooden laths may have instead escape vents constructed by leaving 
spaces of at least 1.375 inches (3.49 cm) between two sets of laths in 
the parlor portion of the trap. These dimensions for escape vents and 
lath spacing may be adjusted pursuant to the procedures in Sec.  
648.140.
* * * * *

[FR Doc. 05-24583 Filed 12-23-05; 11:56 am]
BILLING CODE 3510-22-P