[Federal Register Volume 73, Number 209 (Tuesday, October 28, 2008)]
[Proposed Rules]
[Pages 63934-63941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25707]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.0909251266-81274-01]
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; 2009 Research Set-Aside Projects

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

ACTION: Proposed specifications; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes specifications for the 2009 summer flounder, 
scup, and black sea bass fisheries and provides notice of three 
conditionally approved projects that will be requesting Exempted 
Fishing Permits (EFPs) as part of the Mid-Atlantic Fishery Management 
Council's (Council) Research Set-Aside (RSA) program. The implementing 
regulations for the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan (FMP) require NMFS to publish specifications for the 
upcoming fishing year for each of these species and to provide an 
opportunity for public comment. Furthermore, regulations under the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) require a notice to be published to provide interested 
parties the opportunity to comment on applications for EFPs. The intent 
of this action is to establish harvest levels that assure that the 
target fishing mortality rates (F) or exploitation rates specified for 
these species in the FMP are not exceeded and to allow for rebuilding 
of the stocks as well as to provide notice of EFP requests, all in 
accordance with the Magnuson-Stevens Act.

DATES: Comments must be received on or before November 12, 2008.

ADDRESSES: You may submit comments, identified by RIN 0648-XJ96, by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
     Mail and hand delivery: Patricia A. Kurkul, Regional 
Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, 
Gloucester, MA 01930. Mark the outside of the envelope:

[[Page 63935]]

``Comments on 2009 Summer Flounder, Scup, and Black Sea Bass 
Specifications.''
     Fax: (978) 281-9135.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Copies of the specifications document, including the Environmental 
Assessment, Regulatory Impact Review, and Initial Regulatory 
Flexibility Analysis (EA/RIR/IRFA) and other supporting documents for 
the specifications are available from Daniel Furlong, Executive 
Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal 
Building, 300 South Street, Dover, DE 19901-6790. These documents are 
also accessible via the Internet at http://www.nero.noaa.gov.

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 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 
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, North Carolina) 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 summer flounder, scup, and black sea bass regulations outline 
the process for specifying the annual commercial quotas and 
recreational harvest limits for the summer flounder, scup, and black 
sea bass fisheries, as well as other management measures (e.g., mesh 
requirements, minimum commercial 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 are removed by fishing during the year). Once the catch limits are 
established, they are divided into quotas based on formulas contained 
within the FMP.
    The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 (MSRA), signed into law by President Bush 
on January 12, 2007, added new requirements to involve the Council's 
Scientific and Statistical Committee (SSC) in the specification-setting 
process. Specifically, section 302(g)(1)(B) of the MSRA states that an 
SSC for each Regional Fishery Management Council ''shall provide its 
Council ongoing scientific advice for fishery management decisions, 
including recommendations for acceptable biological catch, preventing 
overfishing, maximum sustainable yield, and achieving rebuilding 
targets, and reports on stock status and health, bycatch, habitat 
status, social and economic impacts of management measures, and 
sustainability of fishing practices.'' The Acceptable Biological Catch 
(ABC) is a level of a stock catch that accounts for the scientific 
uncertainty in estimate of that stock's defined overfishing level. This 
new requirement implemented by the MSRA was put into practice by the 
Council for the first time in the 2009 specification setting process. 
The SSC met on July 31, 2008.
    The FMP's implementing regulations also require that a Monitoring 
Committee for each species review the best available scientific 
information and recommend catch limits and other management measures 
that will mitigate management uncertainty and/or implementation 
imprecision to ensure the target F or exploitation rate for each 
fishery is not exceeded. The Monitoring Committees met on August 1, 
2008.
    The Council and the Commission's Summer Flounder, Scup, and Black 
Sea Bass Management Board (Board) consider the SSC and Monitoring 
Committees' recommendations and any public comment and make their own 
recommendations. While the Board action is final, the Council's 
recommendations must be reviewed by NMFS to assure that they comply 
with FMP objectives and applicable law. The Council and Board made 
their recommendations at a joint meeting held August 5-7, 2008.

Explanation of RSA

    Background: In 2001, regulations were implemented under Framework 
Adjustment 1 to the FMP to allow up to 3 percent of the Total Allowable 
Landings (TAL) for each species to be set aside each year for 
scientific research purposes. For the 2009 fishing year, a Request for 
Proposals was published to solicit research proposals based upon the 
research priorities that were identified by the Council (73 FR 7528, 
February 8, 2008).
    NMFS has conditionally approved three research projects for the 
harvest of the portion of the quota that has been recommended by the 
Council to be set aside for research purposes. In anticipation of 
receiving applications for EFPs to conduct this research, the Assistant 
Regional Administrator for Sustainable Fisheries, Northeast Region, 
NMFS (Assistant Regional Administrator), has made a preliminary 
determination that the activities authorized under the EFPs issued in 
response to the approved RSA projects would be consistent with the 
goals and objectives of the FMP. However, further review and 
consultation may be necessary before a final determination is made to 
issue any EFP.
    For informational purposes, these proposed specifications include a 
statement indicating the amount of quota that has been preliminarily 
set aside for research purposes (a percentage of the TAL for each 
fishery, not to exceed 3 percent, as recommended by the Council and 
Board), and a brief description of the RSA projects, including 
exemptions requested, and the amount of RSA requested for each project. 
The RSA amounts may be adjusted, following consultation with RSA 
applicants, in the final rule establishing the 2009 specifications for 
the summer flounder, scup, and black sea bass fisheries. If the total 
amount of RSA is not awarded, NMFS will publish a document in the 
Federal Register to restore the unused amount to the applicable TAL.
    For 2008, the conditionally approved projects may collectively be 
awarded the following amounts of RSA: 553,500 lb (251 mt) of summer 
flounder; 220,200 lb (100 mt) of scup; and 69,000 lb (31 mt) of black 
sea bass. The projects may also be collectively awarded up to 1.3 
million lb (590 mt) of Loligo squid;

[[Page 63936]]

844,680 (383 mt) of Atlantic bluefish; and 33,069 lb (15 mt) of 
butterfish.
    2009 RSA Proposal Summaries: Project number 1 would conduct a 
fishery-independent scup survey that would utilize unvented fish traps 
fished on hard bottom areas in southern New England waters to 
characterize the size composition of the scup population. Survey 
activities would be conducted June 15-October 15, 2009, at 10 rocky 
bottom study sites located offshore, where there is a minimal scup pot 
fishery and no active trawl fishery, and at two scup spawning ground 
sites. Up to two vessels would conduct the research survey. Sampling 
would occur off the coasts of Rhode Island and southern Massachusetts. 
Up to four vessels would harvest the RSA during the period January 1-
December 31, 2009. The principal investigators have requested 
exemptions from trip limits, gear requirements (excluding marine mammal 
avoidance and/or release devices), and closed seasons for harvest of 
RSA species. The preliminary RSA awarded for this project is 2,000 lb 
(0.9 mt) of summer flounder; 51,172 lb (23 mt) of scup; and 28,000 lb 
(13 mt) of black sea bass.
    Project number 2 would conduct a near-shore trawl survey in Mid-
Atlantic waters between Gay Head, Massachusetts, and Cape Hatteras, 
North Carolina, including both Block Island and Rhode Island Sounds. A 
stratified random sampling of approximately 200 stations will occur in 
depths between 18-60 feet (8-18 m). The function of the survey would be 
to provide stock assessment data for summer flounder, scup, black sea 
bass, Loligo squid, butterfish, Atlantic bluefish, several species 
managed by the Commission such as weakfish and Atlantic croaker, and 
unmanaged forage species. The research aspects of the trawl survey will 
be conducted by one scientific research vessel. This vessel will 
operate under a Letter of Authorization (LOA) as provided for by the 
specific exemption for scientific research activities found at 50 CFR 
600.745. Up to 35 vessels will harvest the RSA January 1-December 31, 
2009, during commercial fishing operations, except that these vessels 
have requested exemptions for closed seasons and trip limits to harvest 
the RSA allocated to the project. The preliminary RSA awarded to this 
project is 367,768 lb (167 mt) of summer flounder; 169,028 lb (77 mt) 
of scup; 41,000 lb (19 mt) of black sea bass; 97,750 lb (44 mt) of 
Atlantic bluefish; and 276,827 lb (126 mt) of Loligo squid.
    Project number 3 would conduct an evaluation of discard mortality 
for summer flounder in trawl fisheries. Combined sources of mortality 
and injury quantification that occur as part of trawling, tracking and 
tagging, and scuba diver observation will be utilized to provide an 
estimate of trawl-related mortality. Research sampling will be 
conducted adjacent to Little Egg Inlet off the New Jersey coast. 
Sampling would occur on the winter offshore fishing grounds south and 
east of Long Island, New York, between Veatch Canyon and Hudson Canyon 
during February-April 2009 and November-December 2009. Up to six 
vessels of opportunity will conduct the research activities and may 
simultaneously participate in harvesting RSA, if the season for summer 
flounder is closed or if more fish, above those needed for the research 
activities, are caught than are permitted by possession limits. The 
principal investigators have requested exemption from the commercial 
summer flounder minimum size so that fish smaller than 14 inches (35.5 
cm) may be temporarily retained to assess viability and to affix tags 
and data transmitters. Up to 35 vessels will harvest the RSA January 1-
December 31, 2009, during commercial fishing operations, except that 
these vessels have requested exemptions for closed seasons and trip 
limits to harvest the RSA allocated to the project. The preliminary RSA 
awarded to this project is 183,732 lb (83 mt) of summer flounder. 
Regulations under the Magnuson-Stevens Act require publication of this 
notification to provide interested parties the opportunity to comment 
on applications for proposed EFPs.

Explanation of Quota Adjustments Due to Quota Overages

    This action proposes commercial quotas based on the proposed TALs 
and Total Allowable Catches (TACs) and the formulas for allocation 
contained in the FMP. In 2002, NMFS published final regulations to 
implement a regulatory amendment (67 FR 6877, February 14, 2002) that 
revised the way in which the commercial quotas for summer flounder, 
scup, and black sea bass are adjusted if landings in any fishing year 
exceed the quota allocated (thus resulting in a quota overage). If NMFS 
approves a different TAL or TAC at the final specifications stage 
(i.e., in the final rule), the commercial quotas will be recalculated 
based on the formulas in the FMP. Likewise, if new information 
indicates that overages have occurred and deductions are necessary, 
NMFS will publish notice of the adjusted quotas in the Federal 
Register. NMFS anticipates that the information necessary to determine 
whether overage deductions are necessary will be available by the time 
the final specifications are published. The commercial quotas contained 
in these proposed specifications for summer flounder, scup, and black 
sea bass are not adjusted for any overages that have occurred. The 
final specifications will contain quotas that have been fully adjusted 
consistent with the procedures described above.

Summer Flounder

    The timeline for completion of the summer flounder rebuilding 
program was extended from January 1, 2010, to no later than January 1, 
2013, by section 120(a) of the MSRA. The Southern Demersal Working 
Group (SDWG), a technical stock assessment group composed of personnel 
from the Northeast Fisheries Science Center (NEFSC), NMFS Northeast 
Regional Office, Council, Commission, state marine fisheries agencies, 
academia, and independently-hired scientists, conducted a benchmark 
stock assessment of summer flounder in 2008. The recommendations of the 
SDWG were externally peer reviewed by scientists provided by the Center 
for Independent Experts (CIE) through the NEFSC Stock Assessment 
Workshop (SAW)/Stock Assessment Review Committee (SARC) process. The 
47th SARC, which peer reviewed the benchmark assessment conducted by 
the SDWG, upheld the recommendations of the SDWG described in the stock 
assessment, resulting in changes to the modeling approach used, 
adoption of revised F threshold and F management target values, and a 
change in assumed natural mortality. These changes resulted in 
modifications to the stock status determination criteria. Information 
regarding the results of the benchmark assessment, including summary 
information, reports provided by individual peer reviewers, and the 
detailed final assessment document can be found on the NEFSC SAW/SARC 
web page at: http://www.nefsc.noaa.gov/nefsc/saw/.
    The 2008 SDWG benchmark assessment shows that summer flounder were 
not overfished and that overfishing did not occur in 2007, the year for 
which the most recent, complete fishery-dependent data are available. 
The fishing mortality rate in 2007 was estimated to be 0.288, below the 
benchmark assessment's overfishing threshold 
(FMSY=FTHRESHOLD=F35!percent\A\

[[Page 63937]]

=0.310) but above the assessment-recommended management target 
(FTARGET=F40!percent=0.255). FMSY is 
the fishing mortality rate that, if applied constantly, would result in 
maximum sustainable yield (MSY) from the summer flounder stock. When 
F>FTHRESHOLD, overfishing is considered to be occurring. 
Fishing year 2007 is the first year of the rebuilding program in which 
overfishing did not occur on summer flounder. Spawning stock biomass 
(SSB) was estimated to be 95.6 million lbs (43,363 mt) in 2007, about 
72 percent of the SSB35!percent (SSBMSY target 
proxy reference point) = 132.4 million lbs (60,056 mt). The benchmark 
assessment shows that the summer flounder stock has not been overfished 
since 2001. The average recruitment from 1982 to 2007 is 41.6 million 
fish. The 2007 year class is considered slightly below average at 
approximately 40.0 million fish.
---------------------------------------------------------------------------

    \A\ The fishing mortality rate which reduces the spawning stock 
biomass per recruit (SSB/R) to 35 percent of the amount present in 
the absence of fishing. More generally, FX percent is the fishing 
mortality rate that reduces the SSB/R to x percent of the level that 
would exist in the absence of fishing.
---------------------------------------------------------------------------

    The SSC, using the updated assessment information, recommended to 
the Council that the 2009 TAL be set no higher than 19.02 million lb 
(8,627 mt). Their recommendation was based on utilizing the benchmark 
assessment-recommended FTARGET and related assessment 
information and methodology to derive an ABC that accounts for 
scientific uncertainty within the assessment. The Monitoring Committee 
considered the SSC's ABC recommendation, the assessment results, and 
management uncertainty. The Monitoring Committee recommended that the 
TAL could be set within a range of 19.02-17.87 million lb (8,627-8,105 
mt) to account for imprecision associated with implementation of the 
management program.
    The Council and Board considered the SSC and Monitoring Committee 
recommendations before adopting a 2009 TAL of 18.45 million lb (8,368 
mt) to recommend to NMFS. This TAL is the mid-point in the range 
recommended by the Monitoring Committee and is lower than the SSC's 
recommendation for ABC. This TAL has a 63-percent probability of not 
exceeding the F target in 2009 and a 97-percent probability of 
constraining fishing mortality below the overfishing threshold 
(FMSY = F35!percent), and is thus expected to 
achieve the required stock rebuilding for summer flounder to exceed the 
BMSY target by the January 1, 2013, deadline. This would be 
a 17-percent increase from the 2008 TAL of 15.77 million lb (7,153 mt). 
All other management measures were recommended to remain status quo.
    The regulations state that the Council shall recommend, and NMFS 
shall implement, measures (including the TAL) necessary to achieve, 
with at least a 50-percent probability of success, a fishing mortality 
rate that produces the maximum yield per recruit (FMAX). 
However, Framework Adjustment 7 to the FMP (Framework 7) was 
implemented October 1, 2007 (72 FR 55704), to ensure that the best 
available scientific information could be adopted without delay by the 
Council for use in managing summer flounder. As such, the SDWG 
benchmark assessment recommended FMSY=F35!percent 
is now the best available fishing mortality rate that produces the 
optimum yield per recruit and is the threshold value for assessing 
whether overfishing is occurring on summer flounder, replacing 
FMAX. A 2000 Federal Court Order (Natural Resources Defense 
Council v. Daley, Civil No. 1:99 CV 00221 (JLG)) also requires the 
annual summer flounder TAL to have at least a 50-percent probability of 
success. As previously stated, the Council and Board's recommended TAL 
of 18.45 million lb (8,368 mt) has a 97-percent probability of 
constraining fishing mortality below the overfishing threshold of 
FMSY=F35!percent and a 63-percent probability of 
constraining fishing mortality below the assessment-recommended 
management target of F40!percent. This TAL also has a 83-
percent probability of constraining fishing mortality below the fishing 
mortality level (FREBUILD=0.274) that is expected to achieve 
the exact biomass target (BMSY) required under the rebuilding plan by 
January 1, 2013. In the past two years, TALs with a 75-percent 
probability of achieving FREBUILD have been implemented for 
the summer flounder fishery. NMFS is proposing to implement a TAL of 
18.45 million lb (8,368 mt) for 2009, consistent with the Council's and 
Board's recommendation.
    The FMP specifies that the TAL is to be allocated 60 percent to the 
commercial sector and 40 percent to the recreational sector; therefore, 
the initial TAL would be allocated 11.07 million lb (5,021 mt) to the 
commercial sector and 7.38 million lb (3,348 mt) to the recreational 
sector. The Council and Board also agreed to set aside up to 3 percent 
(553,500 lb (251 mt)) of the summer flounder TAL for research 
activities. After deducting the RSA, the TAL would be 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).
    Table 1 presents the proposed allocations by state with and without 
the commercial portion of the RSA deduction. These state quota 
allocations are preliminary and are subject to reductions if there are 
overages of states quotas carried over from a previous fishing year 
(using the landings information and procedures described earlier). Any 
commercial quota adjustments to account for overages will be included 
in the final rule implementing these specifications.

                                         Table 1--2009 Proposed Initial Summer Flounder State Commercial Quotas
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Commercial Quota                          Commercial Quota less RSA\1\
              State                    Percent Share     -----------------------------------------------------------------------------------------------
                                                                    lb                     kg\2\                    lb                     kg\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME                                0.04756                 5,265                   2,388                   5,107                   2,317
--------------------------------------------------------------------------------------------------------------------------------------------------------
NH                                0.00046                 51                      23                      49                      22
--------------------------------------------------------------------------------------------------------------------------------------------------------
MA                                6.82046                 755,025                 342,479                 732,374                 332,205
--------------------------------------------------------------------------------------------------------------------------------------------------------
RI                                15.68298                1,736,106               787,498                 1,684,023               763,873
--------------------------------------------------------------------------------------------------------------------------------------------------------
CT                                2.25708                 249,859                 113,336                 242,363                 109,936
--------------------------------------------------------------------------------------------------------------------------------------------------------
NY                                7.64699                 846,522                 383,982                 821,126                 372,463
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 63938]]

 
NJ                                16.72499                1,851,456               839,821                 1,795,913               814,626
--------------------------------------------------------------------------------------------------------------------------------------------------------
DE                                0.01779                 1,969                   893                     1,910                   866
--------------------------------------------------------------------------------------------------------------------------------------------------------
MD                                2.03910                 225,728                 102,390                 218,957                 99,319
--------------------------------------------------------------------------------------------------------------------------------------------------------
VA                                21.31676                2,359,765               1,070,390               2,288,972               1,038,278
--------------------------------------------------------------------------------------------------------------------------------------------------------
NC                                27.44584                3,038,254               1,378,152               2,947,107               1,336,808
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total\3\                          100.00001               11,070,001              5,021,353               10,737,901              4,870,712
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Preliminary Research Set-Aside amount is 553,500 lb (251 mt).
\2\ Kilograms are as converted from pounds and do not sum to the converted total due to rounding.
\3\ Rounding of quotas results in totals exceeding 100 percent.

    The Commission is expected to maintain the voluntary measures 
currently in place to reduce regulatory discards that occur as a result 
of landing limits established by the states. The Commission established 
a system whereby 15 percent of each state's quota would be voluntarily 
set aside each year to enable vessels to land an incidental catch 
allowance after the directed fishery 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 also ensuring that the state's overall quota is not 
exceeded. These Commission set-asides are not included in these 
proposed specifications because these measures are not authorized by 
the FMP and NMFS does not have authority to implement them.

Scup

    The scup stock is considered overfished when the 3-year average of 
scup SSB is less than the biomass threshold (2.77 kg/tow; the maximum 
NEFSC spring survey 3-year average of SSB). In 2005, the NEFSC 3-year 
SSB index value decreased to 0.69 kg/tow, indicating that the stock was 
again below the minimum biomass threshold and considered overfished. 
Fishing year 2009 is the second year of the scup rebuilding program 
implemented in Amendment 14 to the FMP (72 FR 40077, July 23, 2007). 
The Amendment 14 rebuilding plan applies a constant F of 0.10 in each 
year of the 7-year rebuilding period.
    The 2007 NEFSC Spring SSB 3-year average (2006-2008) index value of 
1.16 kg/tow remains below the minimum biomass threshold of 2.77 kg/tow. 
While this is a 52-percent increase from the 2006 value of 0.76 kg/tow, 
the scup stock is considered overfished. The SSC, Monitoring Committee, 
Council, and Board recommended a status quo initial TAL of 7.34 million 
lb (3,329 mt). Using the F=0.10 target exploitation rate specified in 
the Amendment 14 scup rebuilding plan would result in an initial TAL of 
11.18 million lb (5,384 mt), a 52-percent increase from the 2008 TAL/
status quo. The updated 3-year index value of 1.16 kg/tow is below the 
rebuilding plan projected value for 2006-2008 of 2.08 kg/tow, 
indicating rebuilding progress is currently behind the schedule 
established in Amendment 14. The SSC, Monitoring Committee, Council, 
and Board cited the need to ensure that rebuilding objectives are met 
in the early years of the program to avoid possible significant impacts 
in later years, as has occurred with a number of rebuilding efforts for 
other species that have fallen behind schedule. These groups also 
raised the issue of uncertainty surrounding the scup stock status, 
discard estimates, and survey inter-annual variation as a rationale for 
recommending status quo for 2009.
    Scup discard estimates are deducted from both sectors' TACs to 
establish TALs for each sector, i.e., TAC minus discards equals TAL. 
The FMP specifies that the TAC associated with a given exploitation 
rate be allocated 78 percent to the commercial sector and 22 percent to 
the recreational sector. 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 discard estimates used in the 2009 TAC calculations were based 
on the average discards of 2006 and 2007 for the commercial and 
recreational fisheries. This discard estimate is 4.36 million lb (1,978 
mt), resulting in a TAC of 11.70 million lb (5,339 mt). NMFS is 
proposing to implement the Council and Board recommendation for an 
initial TAL of 7.34 million lb (3,329 mt) and an 11.70 million-lb 
(5,339 mt) TAC.
    The commercial TAC would be 9,126,000 lb (4,140 mt) and the 
recreational TAC would be 2,574,000 lb (1,168 mt). After deducting 
estimated discards (3.58 million lb (1,624 mt) for the commercial 
sector and 0.78 million lb (353 mt) for the recreational sector), the 
initial commercial quota would be 5.546 million lb (2,516 mt) and the 
recreational harvest limit would be 1.79 million lb (813 mt). The 
Council and Board agreed to set aside the maximum 3 percent (220,200 lb 
(100 mt)) of the TAL for research activities. Deducting this RSA would 
result in a commercial quota of 5,378,648 lb (2,006 mt) and a 
recreational harvest limit of 1,741,152 million lb (649 mt).
    The TAC and TAL (commercial quota and recreational harvest limit) 
calculation methodology is the same as utilized in 2008 and previous 
years. However, it should be noted that because the discard estimates 
used for 2009 are different than those utilized in 2008, the final 
commercial quota and recreational harvest limits are not status quo; 
only the initial TAL of 7.354 million lb (3,329 mt) is the same as 
2008.
    The proposed 2009 specifications would maintain the status quo base 
scup possession limits, i.e., 30,000 lb (13,608 kg) for Winter I, to be 
reduced to 1,000 lb (454 kg) when 80 percent of the quota is projected 
to be reached, and 2,000 lb (907 kg) for Winter II.
    Table 2 presents the 2009 commercial allocation recommended by the 
Council, with and without the preliminary RSA deduction. These 2009 
allocations are preliminary and may be subject to downward adjustment 
in the final rule

[[Page 63939]]

implementing these specifications due to 2008 or other previously 
unaccounted for overages, based on the procedures for calculating 
overages described earlier.

                                Table 2--2009 Proposed Initial TAC, Initial Commercial Scup Quota, and Possession Limits
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                   Commercial Quota
            Period                   Percent           TAC in lb (mt)    Discards in lb (mt)   Commercial Quota     less RSA in lb     Possession Limits
                                                                                                  in lb (mt)             (mt)             in lb (kg)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter I                       45.11                4,116,739 (1,867)    1,614,938 (732)      2,501,801 (1,134)   2,426,308 (1,100)   30,000\1\ (13,608)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summer                         38.95                3,554,577 (1,612)    1,394,410 (632)      2,160,167 (980)     2,094,983 (950)     n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter II                      15.94                1,454,684 (660)      570,652 (259)        884,032 (401)       857,356 (389)       2,000 (907)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total\2\                       100.00               9,126,000 (3,139)    3,580,000 (1,623)    5,546,000 (2,516)   5,378,648 (2,440)   ..................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\The Winter I landing limit would drop to 1,000 lb (454 kg) upon attainment of 80 percent of the seasonal allocation.
\2\Totals subject to rounding error.
n/a-Not applicable

    The final rule to implement Framework 3 to the FMP (68 FR 62250, 
November 3, 2003) implemented a process, for years in which the full 
Winter I commercial scup quota is not harvested, to allow unused quota 
from the Winter I period to be rolled over to the quota for the Winter 
II period. As shown in Table 3, the proposed specifications would 
maintain the status quo Winter II possession limit-to-rollover amount 
ratios (i.e., 1,500 lb (0.68 mt) per 500,000 lb (227 mt) of unused 
Winter I period quota).

Table 3--Potential Increase in Winter II Possession Limits Based on the Amount of Scup Rolled Over from Winter I
                                               to Winter II Period
----------------------------------------------------------------------------------------------------------------
     Initial Winter II Possession Limit       Rollover from Winter I   Increase in Initial     Final Winter II
---------------------------------------------      to Winter II       Winter II Possession    Possession Limit
                                             ------------------------         Limit          after Rollover from
                                                                     ----------------------  Winter I to Winter
               lb                     kg                                                             II
                                                  lb          mt          lb         kg    ---------------------
                                                                                                lb         kg
----------------------------------------------------------------------------------------------------------------
2,000                             907         0-499,999   0-227       0          0          2,000      907
----------------------------------------------------------------------------------------------------------------
2,000                             907         500,000-    227-454     1,500      680        3,500      1,588
                                               999,999
----------------------------------------------------------------------------------------------------------------
2,000                             907         1,000,000-  454-680     3,000      1,361      5,000      2,268
                                               1,499,999
----------------------------------------------------------------------------------------------------------------
2,000                             907         1,500,000-  680-907     4,500      2,041      6,500      2,948
                                               1,999,999
----------------------------------------------------------------------------------------------------------------
2,000                             907         2,000,000-  907-1,134   6,000      2,722      8,000      3,629
                                               2,500,000
----------------------------------------------------------------------------------------------------------------

Black Sea Bass

    Amendment 12 to the FMP indicated that the black sea bass stock, 
which was determined by SARC 27 to be overfished in 1998, could be 
rebuilt to the target biomass within a 10-year period, i.e., by 2010. 
The current target exploitation rate is based on the current estimate 
of FMAX=FMSY=FREBUILD, or 0.33 (25.6 
percent). The northern stock of black sea bass was last assessed at the 
43rd SAW in June 2006. The SARC 43 Panel did not consider the stock 
assessment to provide an adequate basis to evaluate stock status 
against the biological reference points, but did not recommend any 
other reference points to replace them.
    The most recent NEFSC spring survey results indicate that the 
exploitable biomass of black sea bass decreased in 2007. The 2007 
biomass index, i.e., the 3-year average exploitable biomass for 2005 
through 2007, is estimated to be 0.29 kg/tow, below the threshold 
biomass value of 0.976 kg/tow. Based on these results, if the 
biological reference points in the FMP are applied, black sea bass once 
again would be considered to be overfished.
    The SSC, Monitoring Committee, Council, and Board recommended a 
2009 TAL of 2.30 million lb (1,043 mt) for 2009, as calculated using 
the methodology in the rebuilding plan. This would be a 45-percent 
decrease from the 2008 TAL of 4.22 million lb (1,914 mt).
    NMFS proposes to implement a 2009 black sea bass TAL of 2.3 million 
lb (1,043 mt), consistent with the Council and Board recommendations. 
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; therefore, the initial TAL would be allocated 
1.127 million lb (511 mt) to the commercial sector and 1.173 million lb 
(532 mt) to the recreational sector. The Council and Board also agreed 
to set aside up to 3 percent (69,000 lb (31 mt)) of the black sea bass 
TAL for research activities. After deducting the RSA, the TAL would be 
divided into a commercial quota of 1,093,190 lb (456 mt) and a 
recreational harvest limit of 1,137,810 lb (516 mt), as specified in 
the FMP.

[[Page 63940]]

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, 
other provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.
    These proposed specifications are exempt from review under 
Executive Order 12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact these 
proposed specifications, if adopted, would have on small entities. A 
description of the action, why it is being considered, and the legal 
basis for this action are contained in the preamble to this proposed 
rule. A copy of this analysis is available from NMFS (see ADDRESSES). A 
summary of the analysis follows.
    The total gross revenue for the individual vessels that would be 
directly regulated by this action is less than $4.0 million for 
commercial fishing and $6.5 million for recreational fishing 
activities. All vessels that would be impacted by this proposed 
rulemaking are therefore considered to be small entities and, thus, 
there would be no disproportionate impacts between large and small 
entities as a result of the proposed rule. 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 proposed 2009 specifications could affect 2,263 vessels that 
held a Federal summer flounder, scup, and/or black sea bass permit in 
2007 (the most recent year of complete permit data). However, the more 
immediate impact of this rule will likely be felt by the 891 vessels 
that actively participated in these fisheries (i.e., landed these 
species) in 2007.
    There are no new reporting or recordkeeping requirements contained 
in any of the alternatives considered for this action. In addition, 
NMFS is not aware of any relevant Federal rules that may duplicate, 
overlap, or conflict with this proposed rule.
    If the Council took no action regarding the 2009 specifications the 
following would occur: (1) No specifications for the 2009 summer 
flounder, scup, and black sea bass fisheries; (2) the indefinite 
management measures (minimum mesh sizes, minimum sizes, possession 
limits, permit and reporting requirements, etc.) would remain 
unchanged; (3) there would be no quota set-aside allocated to research 
in 2009; and (4) 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. Under the no action alternative, the 
fisheries would operate without an identified cap on allowable landings 
because the quotas implemented for 2008 expire on December 31, 2008, 
and there are no provisions to roll-over those quota provisions into 
2009 if specifications are not published for the year. Therefore, the 
no action alternative is not considered to be a reasonable alternative 
to the preferred action.The Council analyzed three TAL alternatives for 
2009. Of these, one alternative, labeled Alternative 2, contained the 
most restrictive TAL options (i.e., lowest catch levels). While this 
alternative would achieve the objectives of the proposed action for all 
three species, it has the highest potential economic impact on small 
entities in the form of potential foregone fishing opportunities. 
Alternative 2 was not preferred by the Council because other 
alternatives considered have lower impacts on small entities while 
achieving the stated objectives of this proposed rule.
    The Council analyzed two TAL alternatives that would accomplish the 
stated objectives of the proposed action, consistent with applicable 
statutes, and that would minimize significant economic impact of the 
proposed rule on small entities. Alternative 1 (Council's preferred) 
would implement the following TALs in 2009: Summer flounder, 18.45 
million lb (8,369 mt); scup, 7.34 million lb (3,329 mt); and black sea 
bass, 2.30 million lb (1,043 mt). Alternative 3 (least restrictive/
highest quota levels) would implement the following TALs in 2009: 
Summer flounder, 19.02 million lb (8,627 mt); scup, 11.18 million lb 
(5,071 mt); and black sea bass, 4.22 million lb (1,914 mt).
    Council staff conducted preliminary analysis on the potential 
economic impact of changes in recreational harvest limits associated 
with the alternatives. For the purposes of the RFA, the only entities 
affected by the proposed changes to the recreational harvest limit are 
owners and operators of recreational party/charter (for hire) vessels. 
These analyses indicate that it is possible that adverse economic 
impacts could occur under Alternative 1 but would not be likely under 
Alternative 3. The methods utilized in the analysis compare 2007 
recreational landings to the respective alternative's recreational 
harvest limit and make inferences on possible negative impacts to the 
demand for party/charter vessel trips and angler participation. While 
useful for a general statement on potential impacts, demand for party/
charter trips has remained relatively stable for many years regardless 
of increases or decreases in the recreational harvest limit and 
ascertaining angler satisfaction relative to a total recreational 
harvest limit is subjective. More thorough analysis of recreational 
fisheries impacts will be conducted following the Council's 
recommendations for recreational management measures in December 2008. 
Once actual 2009 recreational management measures recommendations are 
known, more detailed analysis, including an IRFA, will be prepared by 
the Council.
    To assess the impact of the alternatives on commercial fisheries, 
the Council conducted both threshold analysis and analysis of potential 
changes in ex-vessel gross revenue that would result from Alternatives 
1 and 3. Some degree of caution should be utilized when interpreting 
the economic impact data as a host of variations could influence the 
outcomes of the analyses. Vessels have permits for multiple fisheries 
and may supplement income by landing other species; economic dependence 
on a particular species may be masked by vessels landing multiple 
species; ex-vessel value of the three species may change from the 
estimated values utilized in the analysis; revenues may increase or 
decrease as a result of changes to possession limits or seasons set by 
individual states; and reduction in commercial quota to account for 
previous years' overages may still occur in the specifications final 
rule.
    Under Alternative 1 (Council's preferred), analysis indicates that 
224 vessels out of the 891 (25 percent) that participated in 2007 
summer flounder, scup, and black sea bass fisheries would be expected 
to incur revenue reductions of 5 percent or more. The reductions are 
attributable to the reduction in black sea bass TAL and affect vessels 
that landed solely black sea bass or black sea bass in combination with 
the other two species. The Alternative 1 IRFA analysis indicated that 
647 of the 891 vessels (75 percent) that landed summer flounder and 
scup or some combination of both in 2007 would be expected to 
experience revenue increases in 2009 as

[[Page 63941]]

a result of the 16-percent increase in summer flounder and the 15-
percent increase in scup allowable commercial landings in 2009.
    Utilizing ex-vessel information from 2007, the Council estimated 
that Alternative 1 would increase cumulative summer flounder and scup 
vessel revenues by $3.32 and $0.57 million, respectively. Black sea 
bass vessel revenues are projected to decrease by $2.85 million 
compared to 2008. If these increases and decreases are distributed 
equally among the vessels that landed summer flounder, scup, and black 
sea bass in 2007, the resulting increase in revenue per vessel would be 
$4,770 for summer flounder and $1,360 for scup. Individual vessel 
revenue would decrease by $5,053 for vessels landing black sea bass.
    Under Alternative 3 (least restrictive TALs), analysis indicates 
that 121 vessels out of the 891 (14 percent) that participated in 2007 
summer flounder, scup, and black sea bass fisheries would be expected 
to incur revenue reductions of 5 percent or more. The reductions are 
again attributable to the reduction in black sea bass TAL. The 
Alternative 3 threshold analysis indicated that 770 of the 891 vessels 
(86 percent) of vessels would be expected to experience revenue 
increases in 2009 as a result of the 19-percent increase in summer 
flounder and the 77-percent increase in scup allowable commercial 
landings under the alternative.
    The Council estimated that Alternative 3 would increase cumulative 
summer flounder and scup vessel revenues by $4.08 and $2.98 million, 
respectively. Black sea bass vessel revenues are projected to decrease 
by $0.06 million compared to 2008. If these increases and decreases are 
distributed equally among the vessels that landed summer flounder, 
scup, and black sea bass in 2007, the resulting increase in revenue per 
vessel would be $5,268 for summer flounder and $7,112 for scup. 
Individual vessel revenue would decrease by $153 for vessels landing 
black sea bass.
    The Council selected Alternative 1 (preferred) over Alternative 3 
(least restrictive) because, for summer flounder, Alterative 1 provides 
a higher probability of achieving the FTARGET in 2009 (63 
percent) and a higher likelihood of achieving the rebuilding target by 
January 1, 2013, than does Alternative 3, which provides a 50-percent 
probability of achieving the FTARGET. For scup, Alternative 
1 was preferred by the Council because it employs a more conservative 
TAL for 2009 as the rebuilding plan is slightly behind schedule in the 
first year of the 7-year rebuilding plan. The Council's previous 
experience with other species' rebuilding plans indicates that failing 
to set harvest levels below the maximum amount possible (i.e., the TAL 
in Alternative 3) in early years of rebuilding plans when progress is 
slow or behind schedule has resulted in the need for more restrictive 
measures in late years of rebuilding efforts. The Council recommended 
the Alternative 1 TAL for black sea bass to be consistent with the 
FREBUILD value prescribed by the rebuilding plan. The black 
sea bass TAL in Alternative 3 is status quo from 2008 and would be 
inconsistent with the goals and objectives of the black sea bass 
rebuilding plans as it would produce an F rate higher than 
FREBUILD. As such, the IRFA provided by the Council 
indicates that the TALs of Alternative 1 satisfy the objectives of the 
applicable statutes and rebuilding programs and minimize the adverse 
impacts of the proposed rule on directly regulated small entities. NMFS 
agrees with the Council's IRFA analysis and rationale for recommending 
TAL Alternative 1. As such, NMFS is proposing to implement the TALs 
contained in Alternative 1 (Summer flounder, 18.45 million lb (8,369 
mt); scup, 7.34 million lb (3,329 mt); and black sea bass, 2.30 million 
lb (1,043 mt)) for 2009.

    Dated: October 22, 2008
Samuel D. Rauch III,
Deputy Assistant Administrator For RegulatoryPrograms, National Marine 
Fisheries Service.
[FR Doc. E8-25707 Filed 10-27-08; 8:45 am]
BILLING CODE 3510-22-S