[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81498-81505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32656]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 101029427-0609-02]
RIN 0648-XY82


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; 2011 Summer Flounder, Scup, and 
Black Sea Bass Specifications; Preliminary 2011 Quota Adjustments; 2011 
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 2011 summer flounder, 
scup, and black sea bass fisheries. This final rule specifies allowed 
harvest limits for both commercial and recreational fisheries, 
including commercial scup possession limits. This action prohibits 
Federally permitted commercial fishing vessels

[[Page 81499]]

from landing summer flounder in Delaware in 2011 due to continued quota 
repayment from previous years' overages.
    The actions of this final rule are necessary to comply with 
regulations implementing the Summer Flounder, Scup, and Black Sea Bass 
Fishery Management Plan (FMP), as well as to ensure compliance with the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).
    The intent of this action is to establish harvest levels and other 
management measures to ensure that these species are not overfished or 
subject to overfishing in 2011. In addition, this action implements 
measures to ensure continued rebuilding of the summer flounder stock, 
which remains under a Magnuson-Stevens Act rebuilding program.

DATES: Effective January 1, 2011, through December 31, 2011.

ADDRESSES: Copies of the specifications document, consisting of 
Environmental Assessment (EA), Initial Regulatory Flexibility Analysis 
(IRFA), and other supporting documents used by the Summer Flounder, 
Scup, and Black Sea Bass Monitoring Committees and Scientific and 
Statistical Committee (SSC) are available from Dr. Christopher Moore, 
Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 
800 North State Street, Dover, DE 19901. The specifications document is 
also accessible via the Internet at http://www.nero.noaa.gov. The Final 
Regulatory Flexibility Analysis (FRFA) consists of the IRFA, public 
comments and responses contained in this final rule, and the summary of 
impacts and alternatives contained in this final rule. Copies of the 
small entity compliance guide are available from Patricia A. Kurkul, 
Regional Administrator, Northeast Region, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930-2298.

FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy 
Analyst, (978) 281-9104.

SUPPLEMENTARY INFORMATION: 

Background

    The summer flounder, scup, and black sea bass fisheries are managed 
cooperatively under the provisions of the FMP developed by the Mid-
Atlantic Fishery Management Council (Council) and the Atlantic States 
Marine Fisheries Commission (Commission), in consultation with the New 
England and South Atlantic Fishery Management Councils. The management 
units specified in the FMP include summer flounder (Paralichthys 
dentatus) in U.S. waters of the Atlantic Ocean from the southern border 
of North Carolina (NC) northward to the U.S./Canada border, and scup 
(Stenotomus chrysops) and black sea bass (Centropristis striata) in 
U.S. waters of the Atlantic Ocean from 35[deg]13.3' N. lat. (the 
latitude of Cape Hatteras Lighthouse, Buxton, NC) northward to the 
U.S./Canada border. The Council prepared the FMP under the authority of 
the Magnuson-Stevenson Act, 16 U.S.C. 1801 et seq. Regulations 
implementing the FMP appear at 50 CFR part 648, subparts A (general 
provisions), G (summer flounder), H (scup), and I (black sea bass). 
General regulations governing U.S. fisheries also appear at 50 CFR part 
600. States manage summer flounder within 3 nautical miles of their 
coasts, under the Commission's plan for summer flounder, scup, and 
black sea bass. The Federal regulations govern vessels fishing in the 
exclusive economic zone (EEZ), as well as vessels possessing a Federal 
fisheries permit, regardless of where they fish.
    The regulations implementing the FMP 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. 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 2011 specifications 
for these fisheries was provided in the proposed specifications (75 FR 
70192; November 17, 2010). That information is not repeated here.
    NMFS will establish the 2011 recreational management measures 
(i.e., minimum fish size, possession limits, and fishing seasons) for 
summer flounder, scup, and black sea bass by publishing proposed and 
final rules in the Federal Register at a later date, after the Council 
concludes its deliberations and submits its recommendations as 
specified in the FMP.

Changes From the Proposed to Final Specifications Rule

    The FMP provides that up to 3 percent of landing levels may be set 
aside for research. The proposed rule proposed the maximum amounts (3 
percent) of the Total Allowable Landings (TALs) be set aside for summer 
flounder (884,400 lb (401 mt)), scup (600,000 lb (272 mt)) and black 
sea bass (108,000 lb (49 mt)); however, the full 3 percent was not 
awarded for either summer flounder or scup in the final grant awards 
for the 2011 RSA program. Only 521,441 lb (237 mt) of summer flounder 
and 396,500 lb (180 mt) of scup were awarded as 2011 RSA. Thus, this 
rule increases slightly the commercial quotas and recreational harvest 
limits for both summer flounder and scup to account for the final RSA 
amounts. No changes occurred to the black sea bass specifications as 
the 3 percent was fully utilized by the 2011 grant awards process. No 
other changes occurred from the proposed to final specifications rule.

2011 Specifications

    This final rule implements the following specifications:
    Summer Flounder: A TAL of 29.48 million lb (13,372 mt), including 
RSA of 521,441 lb (237 mt); a commercial quota of 17,375,135 lb (7,881 
mt); and a recreational harvest limit of 11,583,424 lb (5,254 mt).
    Scup: A Total Allowable Catch (TAC) of 24.1 million lb (10,932 mt); 
a 20.0 million lb TAL (9,072 mt), including RSA of 396,500 lb (180 mt); 
a commercial quota of 15,600,000 lb (7,076 mt); and a recreational 
harvest limit of 4,312,770 lb (1,956 mt). NMFS acknowledges that the 
Council, at its December 15, 2010, meeting, voted to recommend an 
increase to the 2011 scup TAC, TAL, commercial quota, and recreational 
harvest limit. This recommendation is still under development and 
consideration and will be addressed through separate rulemaking, if 
needed.
    Black Sea Bass: A TAL of 3,600,000 lb (1,633 mt), including RSA of 
108,000 lb (49 mt); a commercial quota of 1,711,080 lb (776 mt); and a 
recreational harvest limit of 1,780,920 lb (808 mt).
    Additional detail for each species' specifications is provided, as 
follows.

Summer Flounder

    Summer flounder remain under a stock rebuilding program and must 
achieve the rebuilding biomass target (i.e., 
B<INF>MSY (Maximum Sustainable Yield)</INF>) by January 1, 2013. 
Analysis conducted by the Southern Demersal Working Group (SDWG) 
indicates that the 2011 summer flounder TAL implemented by this rule is 
projected to provide the necessary stock growth to achieve the 
rebuilding objective within the specified time frame. This TAL also 
satisfies a 2000 Federal Court Order (Natural Resources Defense Council 
v. Daley, Civil No. 1:99 CV 00221 (JLG)) which requires the annual 
summer flounder TAL to have at least a 50-percent probability of 
success.

[[Page 81500]]

This TAL has a 50-percent probability of constraining fishing mortality 
below the management target of F<INF>40 percent</INF> = 0.255 and a 98-
percent probability of constraining fishing mortality below the 
overfishing threshold of F<INF>MSY proxy</INF> = 0.310.
    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 2010, 
plus any previously unaccounted for overages from January-December 
2009. Table 1 summarizes, for each State, the commercial summer 
flounder percent shares as outlined in Sec.  600.100(d)(1)(I), the 
resultant 2011 commercial quota (both initial and less the RSA), the 
quota overages as described above, and the final adjusted 2011 
commercial quota, less the RSA.

                                                          Table 1--Final State-by-State Commercial Summer Flounder Allocations for 2011
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                                                                                      Initial quota (TAL)       Initial quota, less RSA       2010 Quota overages      Adjusted quota, less RSA
                                                                    FMP percent  --------------------------------------------------------     (through 10/31/10)     ---------------------------
                              State                                    share                                                             ----------------------------
                                                                                       lb            kg            lb            kg            lb            kg            lb            kg
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ME...............................................................        0.04756         8,412         3,816         8,264         3,748             0             0         8,264         3,749
NH...............................................................        0.00046            81            37            80            36             0             0            80            36
MA...............................................................        6.82046     1,206,403       547,224     1,185,064       537,545        28,112        12,752     1,156,952       524,793
RI...............................................................       15.68298     2,774,006     1,258,289     2,724,939     1,236,032             0             0     2,724,939     1,236,032
CT...............................................................        2.25708       399,232       181,092       392,171       177,889             0             0       392,171       177,889
NY...............................................................        7.64699     1,352,600       613,539     1,328,675       602,687             0             0     1,328,675       602,687
NJ...............................................................       16.72499     2,958,316     1,341,892     2,905,990     1,318,157             0             0     2,905,990     1,318,157
DE...............................................................        0.01779         3,147         1,427         3,091         1,402        56,259        25,519       -53,168       -24,117
MD...............................................................        2.03910       360,676       163,603       354,296       160,709        55,966        25,386       298,330       135,322
VA...............................................................       21.31676     3,770,509     1,710,303     3,703,816     1,680,051             0             0     3,703,816     1,680,051
NC...............................................................       27.44584     4,854,620     2,202,056     4,768,752     2,163,106             0             0     4,768,752     2,163,106
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    Total........................................................      100.00       17,688,000     8,023,278    17,375,135     7,881,362       140,337        63,657    17,287,969     7,841,823
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Notes: 2010 quota overage is determined through comparison of landings for January through October 2010, plus any landings in 2009 in excess of the 2009 quota (that were not previously
  addressed in the 2010 specifications) for each State. For Delaware, this includes continued repayment of overharvest from previous years. Total quota is the sum for all States with an
  allocation. A State with a negative number has a 2011 allocation of zero (0). Kilograms are as converted from pounds and may not necessarily add due to rounding.

Delaware Summer Flounder Closure

    Table 1 indicates that, for Delaware, the amount of overharvest 
from previous years is greater than the amount of commercial quota 
allocated to Delaware for 2011. As a result, there is no quota 
available for 2011 in Delaware. The regulations at Sec.  648.4(b) 
provide that Federal permit holders, as a condition of their permit, 
must not land summer flounder in any State that the Administrator, 
Northeast Region, NMFS, has determined no longer has commercial quota 
available for harvest. Therefore, effective January 1, 2011, landings 
of summer flounder in Delaware by vessels holding commercial Federal 
summer flounder permits are prohibited for the 2011 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 2011 calendar year, 
unless additional quota becomes available through a transfer, as 
mentioned above.

Scup

    As previously noted in the preamble of this rule, the Council voted 
to recommend an increase to the 2011 scup TAC, TAL, commercial quota, 
and recreational harvest limit during their December 15, 2010, meeting. 
This recommendation is still under development and consideration and 
will be addressed through subsequent rulemaking, as needed. The 24.1 
million lb (10,932 mt) 2011 TAC is divided into commercial (78 percent) 
and recreational (22 percent) allocations, in accordance with the FMP; 
the respective discard estimates are then subtracted to yield the 
preliminary TAL of 20.0 million lb (9,072 mt). After deducting 396,500 
lb (180 mt) from the preliminary TAL for 2011 RSA, the commercial quota 
is reduced to 15.6 million lb (7,076 mt), with a recreational harvest 
limit of 4.3 million lb (1,956 mt).
    The commercial TAC, discards, and TAL (commercial quota) are 
allocated on a percentage basis to three quota periods, as specified in 
the FMP: Winter I (January-April)--45.11 percent; Summer (May-
October)--38.95 percent; and Winter II (November-December)--15.94 
percent. The recreational harvest limit is allocated on a coastwide 
basis. Consistent with the revised quota setting procedures established 
for the FMP (67 FR 6877, February 14, 2002), scup overages are 
determined based upon landings for the Winter I and Summer 2010 
periods, plus any previously unaccounted for landings from the 2009 
Winter II period. There were no preliminary overages of the 2010 Winter 
I or Summer Period quotas or previously unaccounted for overages of any 
2009 quota periods; therefore, no adjustment to the 2011 scup 
specifications is required in this final rule. Any overage of the 2010 
Winter II period will be addressed in July 2011, prior to the start of 
the 2011 Winter II fishery.
    Per the quota accounting procedures in the FMP, after June 30, 
2011, NMFS will compile all available landings data for the 2010 Winter 
II quota period and compare the landings to the 2010 Winter II quota 
period allocation, inclusive of any transfer from the 2010 Winter I 
quota period. Any overages will be determined, and deductions, if 
needed, will be made to the Winter II 2011 allocation and published in 
the Federal Register. Table 2 contains the quota period allocations for 
the 2011 commercial scup fishery.

[[Page 81501]]



                                                           Table 2--Initial Commercial Scup Quota Allocations for 2011 by Quota Period
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                                                   Total allowable catch      Estimated discards         Initial quota        Initial quota less     Adjusted quota less     Federal possession
                                                 --------------------------------------------------------------------------- overages (through 10/     overages and RSA       limits (per trip)
            Quota period                Percent                                                                                    31/2009)       ----------------------------------------------
                                         share         lb           mt          lb           mt          lb           mt    ----------------------
                                                                                                                                 lb         mt          lb           mt         lb         kg
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Winter I............................       45.11     8,479,778      3,846     1,442,618        645     7,037,160      3,192        N/A        N/A     6,897,648      3,129     30,000     13,608
Summer..............................       38.95     7,321,821      3,321     1,245,621        565     6,076,200      2,756        N/A        N/A     5,955,738      2,701        N/A        N/A
Winter II...........................       15.94     2,996,401      1,359       509,761        231     2,486,640      1,128        N/A        N/A     2,437,342      1,106      2,000        907
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    Total...........................      100.0     18,798,000      8,527     3,198,000      1,451    15,600,000      7,076        N/A        N/A    15,290,730      6,936        N/A        N/A
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Notes: 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.
Metric tons are as converted from pounds and may not necessarily add due to rounding.
N/A = Not applicable.


[[Page 81502]]

    Consistent with the unused Winter I commercial scup quota rollover 
provisions at Sec.  648.120(a)(3), this final rule maintains the Winter 
II possession limit-to-rollover amount ratios that have been in place 
since the 2007 fishing year, as shown in Table 3. The Winter II 
possession limit will increase by 1,500 lb (680 kg) for each 500,000 lb 
(227 mt) of unused Winter I period quota transferred, up to a maximum 
possession limit of 8,000 lb (3,629 kg).

          Table 3--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
                                                                                                                      limit          after rollover from
                                                                                                             ----------------------  Winter I to Winter
                             lb                                  kg                lb                 mt                                     II
                                                                                                                  lb         kg    ---------------------
                                                                                                                                        lb         kg
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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
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Black Sea Bass

    The FMP specifies that the annual TAL is allocated 49 percent to 
the commercial sector and 51 percent to the recreational sector. After 
deducting 108,000 lb (49 mt) of RSA for the three selected research 
projects, the TAL is allocated to the commercial sector as a 1.76 
million lb (798 mt) commercial quota and to the recreational sector as 
a 1.84 million lb (835 mt) recreational harvest limit.
    Consistent with the revised quota setting procedures for the FMP, 
black sea bass overages are determined based upon landings for the 
period January-September 2010, plus any previously unaccounted for 
landings from January-December 2009. Landings exceeded the quota by 
33,434 lb (1.5 mt) during the 2009 black sea bass commercial fishery. 
However, because 2010 black sea bass commercial landings to date remain 
substantially below the published 2010 quota, no adjustment to the 2011 
commercial quota appears necessary at this time to account for the 
overage in 2009. If 2010 landings remain below the difference between 
the 2010 quota and the 2009 overage, no adjustment to the 2012 black 
sea bass quota would be necessary. If landings exceed the 2010 quota 
when the complete 2010 fishing year landings are examined next year, 
NMFS will adjust the 2012 commercial quota, accordingly.

Comments and Responses

    NMFS received four comments during the 15-day comment period for 
the November 17, 2010, proposed rule. One comment from the State of 
Connecticut supported all of the proposed specification measures. Two 
comments from recreational fishing groups supported the summer flounder 
and scup proposed measures but opposed the black sea bass 
specifications. Some of the issues raised by the commenters cannot be 
addressed through the Council's specification process and this final 
rule. Specifically, some commenters raised issues regarding 
recreational fishery issues that will be addressed through the annual 
recreational management measures rulemaking process that began with the 
Council's December 15, 2010, meeting. In the spring of 2011, NMFS will 
conduct notice-and-comment rulemaking to implement recreational 
management measures for these three species. In addition, some comments 
focused on the FMP allocation of scup between the recreational and 
commercial sectors and between scup commercial quota periods. The 
allocations are specified in the FMP and cannot be modified through the 
specification process; such a change would require either a Council-
initiated FMP framework adjustment or amendment. The remaining comments 
applicable to the 2011 specifications and RSA projects raised the same 
or similar issues; therefore, the significant issues and concerns are 
summarized and responded to here.
    Comment 1: Two comments stated that the proposed 2011 catch levels 
for scup would represent a considerable departure from optimum yield 
(OY) for the stock. The comments recognize that the scup stock is fully 
rebuilt and assert that the 2011 catch levels are overly precautionary.
    Response: As was stated in response to a similar comment submitted 
for the 2010 specifications, NMFS continues to interpret the 
requirement to achieve OY on a continual basis as producing the long-
term series of catches such that the average catch is equal to OY, 
overfishing is prevented, and long-term average biomass is near or 
above B<INF>MSY</INF>. As such, National Standard 1, which directs 
fisheries to be managed for OY, does not contemplate that the OY will 
necessarily be achieved in a single year given the natural fluctuation 
of fish stocks in response to environmental conditions.
    NMFS acknowledges that the 2011 catch level recommendation for 
scup, as implemented in this final rule, is conservative relative to 
the B<INF>MSY</INF> values for the stocks. Indications from the stock 
assessment do indicate that the biomass is well above B<INF>MSY</INF> 
and the stock was declared rebuilt in 2009; however, the SSC provided a 
clear rationale for its 2011 ABC recommendation to the Council, 
identifying several specific sources of uncertainty associated with the 
stock assessment and citing concerns about increasing catch levels 
rapidly to the MSY level before the recently new stock assessment first 
used for the 2010 fishing year has been further evaluated relative to 
fishery performance. The approach taken by the SSC and Council in 
recommending the 2011 scup specifications to NMFS for implementation 
through this final rule is wholly consistent with the National Standard 
1 guidelines (74 FR 3178; January 16, 2009), which contemplate reducing 
catch levels from OY in situations where the uncertainties pertaining 
to the fishery necessitate so doing. As the level of uncertainty 
associated with the scup stock assessment decreases, either through 
improvement in the data, assessment methods, or through validating 
assessment-related output and estimates through the fishery dependent 
data and fishery performance, the SSC should be able to utilize a less 
conservative approach in recommending ABC if the stock status remains 
robust, thereby moving landing levels to near or at MSY.

[[Page 81503]]

    Comment 2: Two comments opposed the black sea bass TAC of 4.5 
million lb (2,041 mt) and TAL of 3.6 million lb (1,633 mt). The 
comments state that the black sea bass stock is rebuilt, not 
overfished, and not experiencing overfishing and that the SSC's 
selection of a constant catch strategy utilizes inappropriate years of 
very low harvest as the foundation of the constant catch starting 
point. The commenters request that NMFS implement a TAC of 5.86 million 
lb (2,658 mt) and a corresponding TAL of 4.96 million lb (2,250 mt), 
based on the mean TAL from the years 2002-2009.
    Response: NMFS is implementing, through this final rule, the SSC 
and Council recommended TAC of 4.5 million lb (2,041 mt) and TAL of 3.6 
million lb (1,633 mt) for the 2011 black sea bass fishery. The SSC has 
indicated that black sea bass biomass remained stable or increased with 
a TAC in the 4-4.5 million lb range (1,814-2,041 mt). Furthermore, the 
SSC identified several sources of uncertainty associated with 
determining the overfishing limit (OFL) and ABC for the black sea bass 
stock, and deems the 2011 ABC recommendation provided and implemented 
through this rule as the basis for deriving the 2011 TAC and TAL as 
consistent with the best available scientific information. 
Specifically, the ABC and associated TAC/TAL implemented through this 
rule has been recommended by the SSC as the level necessary to ensure 
scientific uncertainty is mitigated in 2011 so that the black sea bass 
stock will have a low likelihood of being subject to overfishing. The 
request submitted a comment on the proposed rule lacks any sufficient 
explanation of how or why the SSC-recommended ABC is inconsistent with 
the best available scientific information. It offers only an 
alternative range of years upon which to base an ABC without any 
technical explanation of how this value affects the stock or prevents 
overfishing. Instead, the commenters cite, without any specific 
justification data, a potential negative socio-economic impact of the 
4.5 million lb (2,041 mt) ABC/TAC on recreational fishermen. While a 
higher catch level could potentially reduce socio-economic impacts as 
indicated in the Council's economic impact analyses, such levels were 
considered and rejected by both the Council and NMFS as they would be 
inconsistent with the goals and objectives of the FMP, the Magnuson-
Stevens Act, and National Standard 2 as a higher ABC/TAC would exceed 
the recommendation of the SSC (see FRFA for additional impacts 
discussion). Based on these points, NMFS cannot disapprove the Council 
and SSC-recommended ABC and implement a higher catch level, as 
requested by the two commenters.
    Comment 3: Individuals representing various recreational fishing 
interest jointly submitted a comment letter opposing the proposal to 
set aside summer flounder, scup, and black sea bass TAL in support of 
the RSA program. This comment stemmed from their belief that the RSA 
program is funding research that should be funded by NMFS. They were 
particularly concerned by the funding of a nearshore trawl survey by 
the RSA program. In addition, expressed concern that the project 
selection process is not transparent and does not allow for public 
input.
    Response: For the 2011 fishing year, the Council chose to reserve 
up to 3 percent of the summer flounder, scup, and black sea bass TAL 
for the 2011 Mid-Atlantic RSA Program. Although projects are ultimately 
selected by the Science and Research Director of the Northeast 
Fisheries Science Center, projects must address research priorities 
that are identified by the Council. The Council receives public input 
on the RSA research priorities through RSA Committee and Council 
meetings. The Council's RSA research priorities for 2011 include 
resource assessment and monitoring work, including fishery independent 
surveys for all Mid-Atlantic species, especially in the near shore zone 
(as provided by the NEAMAP survey). As such, funding work as described 
under the proposed rule is consistent with the Council's intent for the 
Mid-Atlantic RSA program.
    In response to the comment that the selection process lacks 
transparency, the proposal solicitation announcement (Federal Funding 
Opportunity NOAA-NMFS-NEFSC-2011-2002247) outlines the process that 
NMFS must follow prior to making any award. This process ensures 
successful proposals have high technical merit and management 
relevance. As such, at least three technical reviewers evaluate each 
proposal from a scientific perspective, and NMFS convenes a meeting 
with the RSA Committee to review all of the proposals. This process 
ensures that qualified and relevant projects are selected in a timely 
manner and in compliance with the confidentiality rules and regulations 
established by NOAA Grants.
    Therefore, under the 2011 Mid-Atlantic RSA Program, NMFS will 
implement the Council's decision to set-aside summer flounder, scup and 
black sea bass TAL to support projects that address the Council's RSA 
research priorities.

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
final rule is necessary for the conservation and management of the 
summer flounder, scup, and black sea bass fisheries and that it is 
consistent with the Magnuson-Stevens Act and other applicable laws.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under 5 U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness 
period for this rule, to ensure that the final specifications are in 
place on January 1, 2011. This action establishes specifications (i.e., 
annual quotas) for the summer flounder, scup, and black sea bass 
fisheries, and possession limits for the commercial scup fishery.
    Preparation of the proposed rule was dependent on the submission of 
the EA/RIR/IRFA in support of the specifications that is developed by 
the Council. This document was received by NMFS in mid-September 2010. 
Documentation in support of the Council's recommended specifications is 
required for NMFS to provide the public with information from the 
environmental and economic analyses as required in rulemaking. The 
proposed rule published on November 17, 2010, with a comment period 
ending December 2, 2010. Publication of the adjusted summer flounder 
quota at the start of the fishing year that begins January 1, 2011, is 
required by the order of Judge Robert Doumar in North Carolina 
Fisheries Association v. Daley.
    If the 30-day delay in effectiveness were not waived, the lack of 
effective quota specifications on January 1, 2011, would present 
significant confusion to the complex cooperative management regime 
governing these fisheries. The summer flounder, scup, and black sea 
bass fisheries are all expected, based on historic participation and 
harvest patterns, to be very active at the start of the fishing season 
in 2011. Individual States would be unable to set commercial possession 
and/or trip limits, which apportion the catch over the entirety of the 
calendar year. NMFS would be unable to control harvest in any way, as 
there would be no quotas in place for any of the three species until 
the regulations are effective. NMFS would be unable to control harvest 
or close the fishery should landings exceed the quotas. In addition, 
the Delaware summer flounder fishery would be open for fishing, but in 
a negative quota situation. All of these factors would result in a race 
for fish wherein

[[Page 81504]]

uncontrolled landings could occur. Disproportionately large harvest 
occurring within the first weeks of 2011 could have distributional 
effects on other quota periods, and would disadvantage some gear 
sectors or owners and operators of smaller vessels that typically fish 
later in the fishing season. There is no historic precedent by which to 
gauge the magnitude of harvest that might occur should quotas for these 
three species not be in place during the first weeks of 2011. It is 
reasonable to conclude that the commercial fishing fleet possesses 
sufficient capacity to exceed the established quotas for these three 
species before the regulations would become effective, should quotas 
not be in place on January 1, 2011. Should this occur, the fishing 
mortality objectives for all three species and the summer flounder 
rebuilding plan could be compromised.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866 because this action contains no 
implementing regulations.
    This final rule does not duplicate, conflict, or overlap with any 
existing Federal rules.
    A FRFA was prepared pursuant to 5 U.S.C. 604(a), and incorporates 
the IRFA, a summary of the significant issues raised by the public 
comments in response to the IRFA, NMFS's responses to those comments, 
and a summary of the analyses completed to support the action. A copy 
of the EA/RIR/IRFA is available from the Council (see ADDRESSES).
    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, is contained in 
the preambles to the proposed rule and this final rule and is not 
repeated here.

Summary of Significant Issues Raised in Public Comments

    No changes to the proposed rule were required to be made as a 
result of public comments. None of the comments received raised 
specific issues regarding the economic analyses summarized in the IRFA 
or the economic impacts of the rule more generally. For a summary of 
the comments received, and the responses thereto, refer to the 
``Comments and Responses'' section of this preamble.

Description and Estimate of Number of Small Entities To Which the Rule 
Will Apply

    The categories of small entities likely to be affected by this 
action include commercial and charter/party vessel owners holding an 
active Federal commercial or charter/party permit for summer flounder, 
scup, or black sea bass, as well as owners of vessels that fish for any 
of these species in State waters. The Council estimates that the 
proposed 2011 specifications could affect 2,206 vessels that held a 
Federal summer flounder, scup, and/or black sea bass permit in 2009 
(the most recent year of complete permit data). However, the more 
immediate impact of this rule will likely be realized by the 810 
vessels that actively participated in these fisheries (i.e., landed 
these species) in 2009.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance 
requirements are included in this final rule.

Description of the Steps Taken To Minimize Economic Impact on Small 
Entities

    Specification of commercial quotas and possession limits is 
constrained by the conservation objectives set forth in the FMP and 
implemented at 50 CFR part 648 under the authority of the Magnuson-
Stevens Act. Economic impacts of changes in year-to-year quota 
specifications may be offset by adjustments to such measures as 
commercial fish sizes, changes to mesh sizes, gear restrictions, or 
possession and trip limits that may increase efficiency or value of the 
fishery. For 2011, no such adjustments were recommended by the Council; 
therefore, this final rule contains no such measures. Therefore, the 
economic impact analysis of the action is evaluated solely on the 
different levels of quota specified in the alternatives. The ability of 
NMFS to minimize economic impacts for this action is constrained to 
approving quota levels that provide the maximum availability of fish 
while still ensuring that the required objectives and directives of the 
FMP, its implementing regulations, and the Magnuson-Stevens Act are 
met. In particular, the Council's SSC has made recommendations for the 
2011 ABC level for all three stocks. NMFS considers this recommendation 
to be consistent with National Standard 2. Establishment of catch 
levels higher than the SSC ABC recommendations would require 
substantial, compelling argument and documentation that the 
recommendations were not, in fact, based on the best available 
scientific information. NMFS-approved measures for the summer flounder 
fishery must also ensure that the statutory requirements of the stock 
rebuilding program are met by the January 1, 2013, rebuilding deadline.
    The economic analysis for the 2011 specification assessed the 
impacts for quota alternatives that achieve the aforementioned 
objectives. The no action alternative, wherein no quotas are 
established for 2011, was excluded from analysis because it is not 
consistent with the goals and objectives of the FMP and the Magnuson-
Stevens Act. Implementation of the no action alternative in 2011 would 
substantially complicate the approved management programs for these 
three species. NMFS is required under the FMP's implementing 
regulations to specify and implement a TAL (and TAC for scup) for these 
fisheries on an annual basis. The no action alternative would result in 
no fishing limits for 2011, and could result in overfishing of the 
resources and substantially compromise the mortality and/or stock 
rebuilding objectives for each species.
    Furthermore, Alternative 2 from the Council's analysis contains the 
most restrictive TAL options (i.e., the lowest catch levels--summer 
flounder, 22.13 million lb (10,038 mt); scup, 14.11 million lb (6,400 
mt); black sea bass, 2.30 million lb (1,043 mt)). While this 
alternative would achieve the required objectives for all three 
species, it carries the highest potential negative impact on small 
entities in the form of foregone fishing opportunity. Alternative 2 was 
not preferred by the Council or NMFS because other alternatives 
considered have lower impacts on small entities while achieving the 
stated objectives of the 2011 specification process.
    Alternative 3 (least restrictive quotas; highest catch levels--
summer flounder, 35.05 million lb (15,898 mt); scup, 28.96 million lb 
(13,136 mt); and black sea bass, 4.35 million lb (1,973 mt)) would 
produce the smallest impact on small entities. For all three species, 
the respective quotas under Alternative 3 are inconsistent with the 
SSC's catch level recommendations. Because the respective Alternative 3 
measures would establish annual fishing limits that exceed the fishing 
level recommendations of the Council's SSC, they are inconsistent with 
the Magnuson-Stevens Act requirements and cannot be implemented for 
2011,

[[Page 81505]]

despite having the lowest associated impact on small entities.
    Through this final rule, NMFS implements the summer flounder, scup, 
and black sea bass TALs contained in Alternative 1 (summer flounder, 
29.48 million lb (13,372 mt); scup, 20.0 million lb (9,072 mt); and 
black sea bass, 3.6 million lb (1,633 mt)), the Council's preferred 
alternatives, which consist of the quota alternatives that pair the 
lowest economic impacts to small entities and meet the required 
objectives of the FMP and the Magnuson-Stevens Act. Relative to 2010, 
the 2011 commercial quotas and recreational harvest measures in this 
action would result in the following TAL changes for the commercial and 
recreational sectors:
    (1) A 33.2-percent increase for summer flounder;
    (2) A 41.7-percent increase for scup; and
    (3) A 2.7-percent reduction for black sea bass.
    The respective TALs contained in Alternative 1 for all three 
species were selected because they satisfy NMFS's obligation to 
implement specifications that are consistent with the goals, 
objectives, and requirements of the FMP, its implementing regulations, 
and the Magnuson-Stevens Act. The F rates associated with the TALs for 
all three species all have very low likelihoods of causing overfishing 
to occur in 2011. TAL Alternative 1 for summer flounder is also 
projected to provide the necessary continued stock rebuilding to 
achieve the SSB<INF>MSY</INF> by the rebuilding period ending date of 
January 1, 2013.
    The revenue decreases associated with allocating a portion of 
available catch to the RSA program are expected to be minimal, and are 
expected to yield important benefits associated with improved fisheries 
data. It should also be noted that fish harvested under the RSA program 
can be sold, and the profits used to offset the costs of research. As 
such, total gross revenues to the industry are not expected to decrease 
substantially, if at all, as a result of this final rule authorizing 
RSA for 2011.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide will be sent 
to all holders of Federal permits issued for the summer flounder, scup, 
and black sea bass fisheries. In addition, copies of this final rule 
and guide (i.e., permit holder letter) are available from NMFS (see 
ADDRESSES) and at the following Web site: http://www.nero.noaa.gov.

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

    Dated: December 21, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2010-32656 Filed 12-27-10; 8:45 am]
BILLING CODE 3510-22-P