[Federal Register Volume 72, Number 105 (Friday, June 1, 2007)]
[Rules and Regulations]
[Pages 30492-30497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10614]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070518109-7109-01; I.D. 030107B]
RIN 0648-AU60


Fisheries of the Northeastern United States; Recreational 
Management Measures for the Summer Flounder, Scup, and Black Sea Bass 
Fisheries; Fishing Year 2007

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

ACTION:  Final rule.

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SUMMARY:  NMFS issues this final rule to implement recreational 
management measures for the 2007 summer flounder fishery and to notify 
the public that the recreational management measures for the scup and 
black sea bass fisheries remain the same as in 2006. The actions of 
this final rule are necessary to comply with regulations implementing 
the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan 
(FMP) as well as to ensure compliance with the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). The intent of 
these measures is to prevent overfishing of the summer flounder, scup, 
and black sea bass resources.

DATES:  Effective July 2, 2007, except for the amendment to Sec.  
648.107(a) introductory text, which is effective June 1, 2007.

ADDRESSES:  Copies of supporting documents used by the Summer Flounder, 
Scup, and Black Sea Bass Monitoring Committees and of the Environmental 
Assessment, Regulatory Impact Review, and Initial Regulatory 
Flexibility Analysis (EA/RIR/IRFA) are available from Daniel Furlong, 
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, 
Federal Building, 300 South Street, Dover, DE 19901-6790. The EA/RIR/
IRFA is also accessible via the Internet at 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:  Michael Ruccio, Fishery Policy 
Analyst, (978) 281-9104.

SUPPLEMENTARY INFORMATION:

Background

    The summer flounder, scup, and black sea bass fisheries are managed 
cooperatively by the Atlantic States Marine Fisheries Commission 
(Commission) and the Mid-Atlantic Fishery Management Council (Council), 
in consultation with the New England and South Atlantic Fishery 
Management Councils. The Summer Flounder, Scup, and Black Sea Bass 
Fishery Management Plan (FMP) and its implementing regulations, which 
are found at 50 CFR part 648, subparts A (general provisions), G 
(summer flounder), H (scup), and I (black sea bass), describe the 
process for specifying annual recreational management measures that 
apply in the Exclusive Economic Zone (EEZ). The states manage these 
fisheries within 3 nautical miles of their coasts, under the 
Commission's plan for summer flounder, scup, and black sea bass. The 
Federal regulations govern vessels fishing in the exclusive

[[Page 30493]]

economic zone (EEZ), as well as vessels possessing a Federal fisheries 
permit, regardless of where they fish.
    The 2007 coastwide recreational harvest limits, after deduction of 
research set-aside (RSA), are 6,689,004 lb (3,034 mt) for summer 
flounder, 2,744,200 lb (1,245 mt) for scup, and 2,473,500 lb (1,122 mt) 
for black sea bass. The 2007 quota specifications, inclusive of the 
recreational harvest limits, were determined to be consistent with the 
2007 target fishing mortality rate (F) for summer flounder and the 
target exploitation rates for scup and black sea bass.
    The proposed rule to implement annual Federal recreational measures 
for the 2007 summer flounder, scup, and black sea bass fisheries was 
published on March 15, 2007 (72 FR 12158), and contained management 
measures (minimum fish sizes, possession limits, and fishing seasons) 
intended to keep annual recreational landings from exceeding the 
specified harvest limits.

Changes From the Proposed Rule

    Subsequent to the publication of the proposed rule, NMFS concluded 
that the summer flounder precautionary default measures, as proposed by 
the Council and published in the March 15, 2007, proposed rule (72 FR 
12158)(a 1-fish possession limit, 18.5-inch (46.99-cm) minimum fish 
size, with no closed season) are inconsistent with the requirements for 
the precautionary default measures as outlined in Framework Adjustment 
2 (Framework 2) to the FMP and do not achieve the necessary level of 
reduction in landings set out in the proposed rule.
    Framework 2 indicates that the precautionary default measures are 
the set of measures that would achieve the greatest reduction in 
landings required for any state. Further analysis conducted by NMFS 
subsequent to the publication of the proposed rule has shown that the 
combination of minimum fish size, possession limit, and season proposed 
as the precautionary default measures in the proposed rule will not 
achieve the required reduction in landings to constrain harvest within 
the 2007 recreational harvest for New York. Based on its 2007 
recreational harvest limit, New York is required to reduce landings by 
48.6-percent from 2006 to 2007, as was indicated in the proposed rule. 
The proposed precautionary default measures would only have reduced 
landings by 41.8 percent.
    However, increasing the minimum fish size to 19.0 inches (48.26cm) 
with a 1-fish possession limit and no closed season will ensure that 
all states, including New York, would achieve the required reductions 
in landings necessary for 2007. These measures with the slightly larger 
minimum fish size would reduce landings in New York by 55.3-percent 
from 2006 levels, thereby achieving the necessary reduction in landings 
for 2007.
    Therefore, NMFS is increasing the minimum fish size of the 2007 
summer flounder precautionary default measures from 18.5 inches 
(46.99cm) to 19 inches (48.26 cm) to ensure the necessary reduction 
levels indicated in the proposed rule and to ensure consistency with 
the intent of Framework 2 that the precautionary default measures 
achieve the necessary level of reduction required for each individual 
state.
    States that do not submit conservation equivalency proposals or for 
which proposals were disapproved by the Commission or NMFS, are 
required to adopt the precautionary default measures. Though no states 
are required to adopt the precautionary default measures for 2007, NMFS 
is modifying the precautionary default measures in this final rule from 
what was proposed, as outlined above, to ensure the reduction levels as 
outlined in Framework 2 are attained. The appropriate regulatory text 
modification to implement this change can be found following the 
classification section of this rule.
     In addition, the coastwide measures for summer flounder contained 
in the proposed rule were analyzed by the Council for their 
effectiveness in constraining recreational landings to the coastwide 
recreational harvest limit as published in the Federal Register on 
December 14, 2006 (71 FR 75134). Following the Council's analysis, 
development of measures, and vote to implement conservation equivalency 
in 2007, the summer flounder recreational harvest limit for 2007 was 
increased by emergency rule (72 FR 2458, January 19, 2007). Additional 
analysis conducted by NMFS following the publication of the proposed 
rule has shown that the proposed coastwide measures would allow only 
55-percent of the increased recreational harvest limit to be landed, if 
implemented for 2007. Instead, as discussed below, this rule implements 
state-by-state conservation equivalency measures for the 2007 summer 
flounder fishery. As such, the summer flounder coastwide measures are 
superceded by the conservation equivalency measures for the 2007 
fishing year. However, these coastwide measures become the default 
regulatory provisions effective January 1, 2008, when conservation 
equivalent measures expire. As such, the coastwide measures remain in 
place in 2008 until such time that new measures, either conservation 
equivalency or coastwide measures, are developed by the Council and the 
Commission and implemented by NMFS for the 2008 fishery. NMFS has 
decided to conduct separate notice and comment rulemaking for summer 
flounder coastwide measures that would be less restrictive than the 
measures of the proposed rule while still constraining landings within 
the increased recreational harvest limit, as published in the emergency 
rule (72 FR 2458, January 19, 2007). A proposed rule containing these 
revised coastwide measures will be published in the Federal Register as 
soon as possible.

2007 Recreational Management Measures

    Additional discussion on the development of the recreational 
management measures appeared in the preamble of the proposed rule and 
is not repeated here. All minimum fish sizes discussed below are total 
length measurements of the fish, i.e., the straight-line distance from 
the tip of the snout to the end of the tail while the fish is lying on 
its side. For black sea bass, total length measurement does not include 
the caudal fin tendril. All possession limits discussed below are per 
person.
    Based on the recommendation of the Commission, the Regional 
Administrator finds that the recreational summer flounder fishing 
measures proposed to be implemented by the states of Massachusetts 
through North Carolina for 2007 are the conservation equivalent of the 
season, minimum size, and possession limit prescribed in Sec. Sec.  
648.102, 648.103, and 648.105(a), respectively. According to the 
regulation at Sec.  648.107(a)(1), vessels subject to the recreational 
fishing measures of this part and landing summer flounder in a state 
with an approved conservation equivalency program shall not be subject 
to the more restrictive Federal measures, and shall instead be subject 
to the recreational fishing measures implemented by the state in which 
they land. Section 648.107(a) has been amended accordingly. The 
management measures will vary according to the state of landing, as 
specified in the following table.

[[Page 30494]]



                    Table 1 - 2006 State Recreational Management Measures for Summer Flounder
----------------------------------------------------------------------------------------------------------------
                State                      Minimum Fish Size        Possession Limit         Fishing Season
----------------------------------------------------------------------------------------------------------------
MA                                     17.5 inches (44.45 cm)    5 fish                 June 10 through August
                                                                                         15
----------------------------------------------------------------------------------------------------------------
RI                                     19.0 inches (48.26 cm)    7 fish                 May 18 through September
                                                                                         16
----------------------------------------------------------------------------------------------------------------
CT                                     18.0 inches (45.72 cm)    5 fish                 April 30 through
                                                                                         September 5
----------------------------------------------------------------------------------------------------------------
NY                                     19.5 inches (49.53 cm)    4 fish                 January 1 through
                                                                                         December 31
----------------------------------------------------------------------------------------------------------------
NJ                                     17.0 inches (43.18 cm)    8 fish                 May 26 through September
                                                                                         10
----------------------------------------------------------------------------------------------------------------
DE                                     18.0 inches (45.72 cm)    4 fish                 January 1 through
                                                                                         December 31
----------------------------------------------------------------------------------------------------------------
MD\1\                                  15.5 inches (39.37 cm)    4 fish                 January 1 through
                                                                                         December 31
----------------------------------------------------------------------------------------------------------------
VA                                     18.5 inches (46.99 cm)    5 fish                 April 1through July 22
                                                                                         and July 29 through
                                                                                         December 31
----------------------------------------------------------------------------------------------------------------
NC\2\                                  14.5 inches (36.83 cm)    8 fish                 January 1 through
                                                                                         December 31
----------------------------------------------------------------------------------------------------------------
\1\ Measures for the ocean waters off MD in the Atlantic Ocean and coastal bays; for the Chesapeake Bay, a 15.0-
  inch (38.1-cm) minimum fish size, a 2-fish possession limit, and a fishing season of January 1 through
  December 31 applies.
\2\ Measures for the ocean waters off NC in the Atlantic Ocean; for internal waters, a 14.0-inch (35.56-cm)
  minimum fish size, a 8-fish possession limit, and a fishing season of January 1 through December 31 applies.

    Table 2 contains the coastwide Federal measures for scup and black 
sea bass in effect for 2007 and codified. These measures are unchanged 
from those at 50 CFR Part 648 subparts H and I.

                     Table 2 - 2007 Scup and Black Sea Bass Recreational Management Measures
----------------------------------------------------------------------------------------------------------------
                                            Minimum Fish Size
             Fishery              -------------------------------------   Possession Limit      Fishing Season
                                         inches              cm
----------------------------------------------------------------------------------------------------------------
Scup                               10                 25.4              50 fish              January 1 through
                                                                                              February 28, and
                                                                                              September 18
                                                                                              through November
                                                                                              30
----------------------------------------------------------------------------------------------------------------
Black Sea Bass                     12                 30.5              25 fish              January 1 through
                                                                                              December 31
----------------------------------------------------------------------------------------------------------------

    As has occurred in the past 5 years, the scup fishery in state 
waters will be managed under a regional conservation equivalency system 
developed through the Commission. Because the Federal FMP does not 
contain provisions for conservation equivalency, and states may adopt 
their own unique measures, the Federal and state recreational scup 
management measures will differ for 2007.

Comments and Responses

    Eight comments were received regarding the proposed recreational 
management measures (72 FR 12158, March 15, 2007). One individual 
submitted a single question as a comment, whose relevance to the 
recreational management measures could not be ascertained and 
therefore, is not responded to in this section.
    Comment 1: The commenter expressed concern about the impact of 
commercial fishing on the summer flounder, scup, and black sea bass 
total stocks and supports reduction of the total allowable landings for 
these species by 50 percent in 2007, and by an additional 10 percent 
each subsequent year. This commenter also stated that the recreational 
harvest limit reductions for 2007 were not sufficient.
    Response: This final rule implements management measures (minimum 
fish sizes, possession limits, and fishing seasons) intended to keep 
annual recreational landings from exceeding the specified harvest 
limits. These limits have been set for 2007 at levels that will 
effectively constrain harvest within the specified F for each species 
under the FMP. As described in the proposed rule, the FMP established 
Monitoring Committees (Committees) for the summer flounder, scup, and 
black sea bass fisheries, consisting of representatives from the 
Commission, the Mid-Atlantic, New England, and South Atlantic Councils, 
and NMFS. The FMP and its implementing regulations require the 
Committees to review scientific and other relevant information annually 
and to recommend management measures (i.e., minimum fish size, 
possession limit, and fishing season) necessary to achieve the 
recreational harvest limits established for each of the three fisheries 
for the upcoming fishing year. While NMFS acknowledges that 
consideration of total allowable landings and quota allocation are 
important, this final rule is not the proper mechanism to address these 
general issues.
    Comment 2: The commenter stated that the models used to create 
catch limits are not accurate and are not an accurate reflection of 
future targets.
    Response: It is assumed that this comment is in reference to the 
models used in the derivation of the summer flounder TAL and for the 
rebuilding target for the summer flounder stock, as the comment is 
similar to many that were received on the proposed rule for the 2007 
initial specifications (71 FR 62972, October 27, 2006).
     The information used to set the summer flounder TAL is the best 
scientific information available,

[[Page 30495]]

consistent with National Standard 2 of the Magnuson-Stevens Act. The 
information used in TAL setting, including the model and methods 
applied to it, have undergone substantial peer review in recent years. 
While recommendations have been made to develop additional modeling 
approaches, peer reviews have confirmed the current model and modeling 
approaches to be statistically valid for the annual stock assessment 
updates that provide the foundation for establishing the TAL. None of 
the peer-reviewed science utilized in setting summer flounder catch 
limits indicates that the rebuilding target cannot be attained within 
the rebuilding period or that the biomass target is incorrect.
    Comment 3: This commenter wrote in opposition to the non-preferred 
coastwide alternative, stating that implementation of the coastwide 
measures would have significant economic impacts on her small bait and 
tackle shop in New Jersey.
    Response: NMFS is implementing, though this final rule, 
conservation equivalency measures as developed by the individual 
states. Under this approach, each state, including New Jersey, 
developed and will implement unique management measures appropriate to 
that state that provide equivalent conservation as the Federal 
coastwide measures developed to achieve the overall recreational 
harvest limit. For 2007, New Jersey will implement a 17.0-inch (43.18-
cm) minimum fish size, an 8-fish possession limit, and a May 26 through 
September 10 fishing season, as compared to the proposed coastwide 
measures of a 1-fish possession limit, 19.0-inch (48.26-cm) minimum 
fish size, and no closed season. It is expected that the measures 
developed by and implemented in New Jersey will assist in mitigating 
the economic impacts that would occur under the coastwide alternative, 
as outlined in the Initial Regulatory Flexibility Analysis (IRFA) 
contained in the proposed rule (71 FR 12158, March 15, 2007).
    Comments 4 through 7: Several commenters urged NMFS to reject 
state-by-state conservation equivalency in favor of coastwide measures; 
advocated for the implementation of coastwide measures as developed by 
the Commission's Technical Committee following the emergency rule to 
increase the 2007 TAL (72 FR 2458, January 19, 2007), not those adopted 
by the Council and the Board that were based on the initial 2007 TAL 
published on December 14, 2006 (71 FR 75134); and questioned if the 
best available science was used in development of the 2007 recreational 
management measures. Specifically, one such commenterquestioned the use 
of applying data from the Marine Recreational Fishery Statistics Survey 
(MRFSS) and For-Hire Survey (FHS) on a state-by-state rather than a 
coastwide (regional) basis. Another commenter indicated that the 
coastwide measures adopted by the Council and the Board were not based 
on the January 19, 2007, emergency rule (72 FR 2458) and therefore, 
were not the best available science.
    Response: NMFS is implementing, though this final rule, the Council 
and Board's preferred alternative of conservation equivalency, for the 
reasons previously outlined in the preamble to this final rule. 
Further, NMFS will be conducting a separate rulemaking, as previously 
discussed, to address potential changes to the coastwide measures in 
light of the increased TAL. That rulemaking will not replace 
conservation equivalency with coastwide measures.
    NMFS acknowledges that the timing of the Magnuson-Stevens Act 
reauthorization that was passed by the 109\th\ Congress on December 9, 
2006, and the joint December 11, 2006, meeting at which the Council and 
Board voted for conservation equivalency, did not permit for detailed 
analysis of coastwide measures to constrain recreational harvest to 
what would eventually be the increased TAL as published on January 19, 
2007 (72 FR 2458). However, a discussion was held at the joint Council 
and Board meeting wherein the assembled group discussed what impacts 
increasing the TAL might have on coastwide measures. Consequently both 
the Council and Board did consider this in their decision making. The 
Council and Board voted to adopt conservation equivalency for 2007, in 
light of these discussions, and forwarded that recommendation to NMFS. 
Further, NMFS acknowledges that the Council's analysis of the coastwide 
measures was crafted on the TAL as published on December 14, 2006 (71 
FR 75134), and as such, would be highly conservative (i.e., would 
constrain landings to 55 percent of the recreational harvest limit as 
increased by the January 19, 2007, emergency rule (72 FR 2458)). NMFS 
is aware that subsequent analyses have been conducted by the Board's 
Technical Committee to craft more liberal coastwide measures that would 
still constrain recreational landings within the recreational harvest 
limit as increased by the January 19, 2007 (72 FR 2458), emergency 
rule. These alternative coastwide measures have not been forwarded, 
through a majority vote from their memberships, from the Council and 
Board as a recommendation to replace conservation equivalency for 2007. 
Consequently, NMFS does not have a reasonable basis upon which to 
disapprove the Council and Board's preferred alternative in favor of 
the coastwide measures analyzed by the Board's Technical Committee in 
this final rule. The Council and the Board have elected to utilize 
conservation equivalency as the means to manage the recreational summer 
flounder fishery each year since the implementation of Framework 2.
    MRFSS and FHS-supplied data have been utilized each year since the 
2001 implementation of Framework 2 to craft state-by-state conservation 
equivalent measures. NMFS acknowledges that a recent review of MRFSS by 
the National Academies of Science has made substantial recommendations 
for the overhaul and redesign of the survey so that the data provided 
will better inform the agency's management and policy decisions. 
However, in the interim period while these changes are being undertaken 
by NMFS, the MRFSS and FHS supplied data constitute the only available 
information to formulate recreational fisheries management advice and, 
as such, its use is consistent with National Standard 2. These data may 
be improved by using larger regional or coastwide aggregations, but 
their use on a state-by-state basis, as has been done for the past 6 
years, is not inappropriate for creating the 2007 conservation 
equivalent measures.

Classification

    NMFS has determined that the final rule is necessary for the 
conservation and management of the summer founder, scup, and black sea 
bass fishery and that it is consistent with the Magnuson-Stevens 
Fishery Conservation and Management Act and other applicable laws.
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effective date for the summer flounder recreational management 
measures contained in this rule (Sec.  648.107(a)). The linchpin of 
NMFS's decision whether to proceed with the coastwide measures or to 
give effect to the conservation equivalent measures is advice from the 
Commission as to the results of its review of the plans of the 
individual states. This advice has only recently been received via a 
letter dated May 1, 2007. The recreational summer flounder fishery has 
commenced in all states and participation and landings are expected to 
increase through late spring and early summer. The party and charter 
vessels

[[Page 30496]]

from the various states are by far the largest component of the 
recreational fishery that fish in the EEZ. The Federal coastwide 
regulatory measures for the three species that were codified last year 
remain in effect. The Federal coastwide measures for the summer 
flounder fishery do not achieve the necessary reduction in recreational 
landings to constrain the fishery to the 2007 recreational harvest 
limit. It is, therefore, imperative that NMFS implement measures, as 
quickly as possible, for the 2007 recreational summer flounder fishery 
to ensure that the mortality objectives of the 2007 recreational 
harvest limit are not compromised. The conservation equivalent measures 
approved by the Commission and implemented by this rule are such 
measures. The state-by-state conservation equivalent measures will, 
upon their implementation, restrict the recreational summer flounder 
coastwide landings within the 2007 recreational harvest limit.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Included in this final rule is the FRFA prepared pursuant to 5 
U.S.C. 604(a). The FRFA incorporates the economic impacts described in 
the IRFA, a summary of the significant issues raised by the public 
comments in response to the IRFA, and 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).

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

    Two commenters raised the issue, supported by two additional 
commenters, that the non-preferred coastwide measures alternative, as 
analyzed and proposed by the Council and subsequently published in the 
proposed rule by NMFS, had been designed to constrain harvest to the 
recreational harvest level contained in the December 14, 2006 (71 FR 
75134), specification final rule, not to the recreational harvest level 
of the January 19, 2007 (72 FR 2458), emergency rule that increased the 
2007 specifications. NMFS finds these comments compelling and is, as 
previously indicated, planning on conducting notice and comment rule 
making to re-propose coastwide measures designed to constrain landings 
within the increased recreational harvest limit, as published in the 
January 19, 2007 (72 FR 2458), emergency rule. However, as these 
coastwide measures serve as the backstop in 2008 once conservation 
equivalent measures expire on December 31, 2007, addressing these 
comments in a later rulemaking does not affect actions taken herein. 
Additional information on this change is outlined in the preamble under 
the ``Changes from the Proposed Rule'' section. No additional changes 
to the proposed rule were required to be made as a result of the public 
comments. A summary of the comments received, and the responses 
thereto, are contained in the ``Comments and Responses'' section of 
this preamble.

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

    The Council estimated that the proposed measures could affect any 
of the 920 vessels possessing a Federal charter/party permit for summer 
flounder, scup, and/or black sea bass in 2005, the most recent year for 
which complete permit data are available. However, only 331 of these 
vessels reported active participation in the recreational summer 
flounder, scup, and/or black sea bass fisheries in 2005.

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

    Under the conservation equivalency approach, each state may 
implement unique management measures appropriate to that state to 
achieve state-specific harvest limits, as long as the combined effect 
of all of the states' management measures achieves the same level of 
conservation as would Federal coastwide measures developed to achieve 
the annual recreational harvest limit. The conservation equivalency 
approach allows states flexibility in the specification of management 
measures, unlike the application of one set of uniform coastwide 
measures. It is not possible to further mitigate economic impacts on 
small entities because the specification of the recreational management 
measures (minimum fish size, possession limits, and fishing seasons) 
contained in this final rule is constrained by the conservation 
objectives of the FMP.
    The economic analysis conducted in support of this action assessed 
the impacts of the various management alternatives. In the EA, the no 
action alternative for each species is defined as the continuation of 
the management measures as codified for the 2006 fishing season. For 
summer flounder, state-specific implications of the no-action 
(coastwide) alternative of a 17-inch (43.18-cm) minimum fish size, a 4-
fish possession limit, and no closed season would not achieve the 
mortality objectives required, and, therefore, cannot be continued for 
the 2007 fishing season.
    The implications of the no-action alternative are not substantial 
for scup and black sea bass. Landings of these species in 2006 were 
less than their respective target for black sea bass and within the 
percent standard error for scup, and the status quo measures are 
expected to constrain landings to the 2007 targets. The no-action 
measures were analyzed in Summer Flounder Alternative 2, Scup 
Alternative 1, and Black Sea Bass Alternative 1.
    At this time, it is not possible to determine the economic impact 
of summer flounder conservation equivalency on each state. The specific 
measures adopted for each state were only made available to NMFS on May 
1, 2007, and were unavailable for analysis during this rulemaking. 
However, economic impact is likely to be proportional to the level of 
landings reductions required for each individual state. If the 
conservation equivalency alternative is effective at achieving the 
recreational harvest limit, then it is likely to be the only 
alternative that minimizes economic impacts, to the extent practicable, 
yet achieves the biological objectives of the FMP.
    Further, NMFS has no authority to dictate, prescribe, or otherwise 
modify the measures adopted by each state under conservation 
equivalency. NMFS discretion in this regard is limited to a decision on 
whether to allow conservation equivalency as a replacement for uniform 
coastwide measures, and the basis for this decision is limited to a 
determination of whether the measures adopted under conservation 
equivalency achieve the biological objectives of the FMP.
    Under Sec.  648.107, vessels landing summer flounder in any state 
that does not implement conservation equivalent measures are subject to 
the

[[Page 30497]]

precautionary default measures, consisting of an 19-inch (48.26-cm) 
minimum fish size, a possession limit of one fish, and no closed 
season. The suites of conservation equivalent measures proposed by each 
state are less restrictive than the precautionary default measures. 
Therefore, because states have a choice as to the specific measures to 
apply to landings in each state, it is more rational for the states to 
adopt the conservation equivalent measures that they have proposed and 
that result in fewer adverse economic impacts than to adopt the more 
restrictive measures that contained in the precautionary default 
alternative.
    For the proposed rule, average party/charter losses for each of the 
18 potential combinations of alternatives were estimated for federally 
permitted vessels. Predicted average losses for New York were presented 
as an example, and ranged from $4,834 per vessel under the combined 
effects of Summer Flounder Alternative 1, Scup Alternative 1, and Black 
Sea Bass Alternative 2, to $6,122 per vessel under the combined effects 
of the Summer Flounder Alternative 2, Scup Alternative 2, and Black Sea 
Bass Alternative 3 (assuming a 25-percent reduction in effort for 
affected trips).

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 letter to permit holders that also serves as 
the small entity compliance guide was prepared and will be sent to all 
holders of Federal party/charter permits issued for the summer 
flounder, scup, and black sea bass fisheries. In addition, copies of 
this final rule and the small entity compliance guide are available 
from NMFS (see ADDRESSES) and at the following website: http://www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 25, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 648 to 
read 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.  648.107, paragraph introductory text (a) and paragraph (b) 
are revised to read as follows:


Sec.  648.107  Conservation equivalent measures for the summer flounder 
fishery.

    (a) The Regional Administrator has determined that the recreational 
fishing measures proposed to be implemented by Massachusetts through 
North Carolina for 2007 are the conservation equivalent of the season, 
minimum fish size, and possession limit prescribed in Sec. Sec.  
648.102, 648.103, and 648.105(a), respectively. This determination is 
based on a recommendation from the Summer Flounder Board of the 
Atlantic States Marine Fisheries Commission.
* * * * *
    (b) Federally permitted vessels subject to the recreational fishing 
measures of this part, and other recreational fishing vessels subject 
to the recreational fishing measures of this part and registered in 
states whose fishery management measures are not determined by the 
Regional Administrator to be the conservation equivalent of the season, 
minimum size, and possession limit prescribed in Sec. Sec.  648.102, 
648.103(b) and 648.105(a), respectively, due to the lack of, or the 
reversal of, a conservation equivalent recommendation from the Summer 
Flounder Board of the Atlantic States Marine Fisheries Commission, 
shall be subject to the following precautionary default measures: 
Season - January 1 through December 31; minimum size - 19.0 inches 
(48.26 cm); and possession limit - one fish.
[FR Doc. E7-10614 Filed 5-31-07; 8:45 am]
BILLING CODE 3510-22-S