[Federal Register Volume 71, Number 240 (Thursday, December 14, 2006)]
[Rules and Regulations]
[Pages 75134-75144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9677]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

RIN 0648-AT60
[Docket No. 061020273-6321-02; I.D. 101606A]


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; 2007 Summer Flounder, Scup, and 
Black Sea Bass Specifications

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 2007 summer flounder, 
scup, and black sea bass fisheries. This final rule specifies allowed 
harvest limits for both commercial and recreational fisheries, 
including commercial scup possession limits. This action prohibits 
federally permitted commercial vessels from

[[Page 75135]]

landing summer flounder in Delaware in 2007 due to continued quota 
repayment from previous year's overages.
    The actions of this final rule are necessary to comply with 
regulations of implementing the Summer Flounder, Scup, and Black Sea 
Bass Fishery Management Plan (FMP) as well as to ensure compliance with 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).
    The intent of this action is to establish harvest levels and other 
management measures to ensure that target fishing mortality rates (F) 
or exploitation rates, as specified for these species in the FMP, are 
not exceeded. In addition, this action implements measures that ensure 
continued rebuilding of the overfished scup stock and end overfishing 
in the summer flounder fishery.

DATES: Effective January 1, 2007, through December 31, 2007.

ADDRESSES: Copies of the specifications document, including the 
Environmental Assessment (EA), Regulatory Impact Review (RIR), the 
Initial Regulatory Flexibility Analysis (IRFA), and other supporting 
documents used by the Summer Flounder, Scup, and Black Sea Bass 
Monitoring Committees are available from Daniel Furlong, Executive 
Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal 
Building, 300 South Street, Dover, DE 19901-6790. The specifications 
document is also accessible via the Internet at http://www.nero.noaa.gov. The Final Regulatory Flexibility Analysis (FRFA) 
consists of the IRFA, public comments and responses contained in this 
final rule, and the summary of impacts and alternatives contained in 
this final rule. Copies of the small entity compliance guide and the 
Supplemental Regulatory Impact Review Analysis are available from 
Patricia A. Kurkul, Regional Administrator, Northeast Region, National 
Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-
2298.

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

SUPPLEMENTARY INFORMATION:

Background

    The summer flounder, scup, and black sea bass fisheries are managed 
cooperatively by the Atlantic States Marine Fisheries Commission 
(Commission) and the Mid-Atlantic Fishery Management Council (Council), 
in consultation with the New England and South Atlantic Fishery 
Management Councils.
    The management units specified in the FMP include summer flounder 
(Paralichthys dentatus) in U.S. waters of the Atlantic Ocean from the 
southern border of NC northward to the U.S./Canada border, and scup 
(Stenotomus chrysops) and black sea bass (Centropristis striata) in 
U.S. waters of the Atlantic Ocean from 35[deg]13.3' N. lat. (the 
latitude of Cape Hatteras Lighthouse, Buxton, NC) northward to the 
U.S./Canada border. Implementing regulations for these fisheries are 
found at 50 CFR part 648, subpart A (general provisions), subpart G 
(summer flounder), subpart H (scup), and subpart I (black sea bass).
     The regulations outline the process for specifying the annual 
catch limits for the summer flounder, scup, and black sea bass 
commercial and recreational fisheries, as well as other management 
measures (e.g., mesh requirements, minimum fish sizes, gear 
restrictions, possession restrictions, and area restrictions) for these 
fisheries. The measures are intended to achieve the annual targets set 
forth for each species in the FMP, specified either as an F or an 
exploitation rate (the proportion of fish available at the beginning of 
the year that may be removed by fishing during the year). Once the 
catch limits are established, they are divided into quotas based on 
formulas contained in the FMP. Detailed background information 
regarding the status of the summer flounder, scup, and black sea bass 
stocks and the development of the 2007 specifications for these 
fisheries was provided in the proposed specifications (71 FR 62972, 
October 27, 2006). That information is not repeated here.
    NMFS will establish the 2007 recreational management measures for 
summer flounder, scup, and black sea bass by publishing a proposed and 
final rule in the Federal Register at a later date, following receipt 
of the Council's recommendations as specified in the FMP.

Summer Flounder

    The FMP specifies a target F of F<INF>max</INF>, that is, the level 
of fishing that produces maximum yield per recruit. The best available 
scientific information indicates that, for 2007, the Total Allowable 
Landings (TAL) must be set equal to F<INF>rebuild</INF> or the level of 
fishing mortality that will help ensure that the summer flounder stock 
is rebuilt by 2010. Therefore, for 2007, F<INF>target</INF>= 
F<INF>rebuild</INF> at 0.15. This complies with the requirement at 50 
CFR 648.100 that the agency implement measures (e.g., a TAL) necessary 
to ensure, with at least a 50-percent probability, that F<INF>max</INF> 
will not be exceeded. This provision gives NMFS the ability to meet the 
statutory obligation under section 304 of the Magnuson-Stevens Act to 
rebuild the summer flounder stock to its target biomass within the 
statutory 10-year period.
    The TAL associated with the target F is allocated 60 percent to the 
commercial sector and 40 percent to the recreational sector. The 
commercial quota is allocated to the coastal states based upon 
percentage shares specified in the FMP. The recreational harvest limit 
is specified on a coastwide basis. Recreational measures will be the 
subject of a separate rulemaking early in 2007.
    This final rule implements the specifications contained in the 
October 27, 2006, proposed rule: A summer flounder TAL of 12.983 
million lb (5,889 mt) for 2007. The TAL for 2007 is allocated 7,789,800 
lb (3,533 mt) to the commercial sector and 5,193,200 lb (2,356 mt) to 
the recreational sector. This TAL is expected to have at least a 75-
percent probability of achieving the target F of 0.15 in 2007, if the 
2006 TAL and assumed discard levels are not exceeded, and is also 
expected to allow for rebuilding of the stock to the target biomass by 
2010.
    Four research projects that would utilize the full summer flounder 
research set-aside (RSA) of 389,490 lb (177 mt) have been conditionally 
approved by NMFS and are currently awaiting notice of award. If a 
project is not approved by the NOAA Grants Office, the research quota 
associated with the disapproved proposal will be restored to the summer 
flounder TAL through publication in the Federal Register.
    Consistent with the revised quota setting procedures for the FMP 
found at 50 CFR 648.100(a)(1)(ii), summer flounder overages are 
determined based upon landings for the 2005 calendar year that were not 
accounted for in the 2006 final rule (70 FR 77060, December 29, 2005) 
and any current fishing year overages through October 31, 2006. Table 1 
summarizes, for each state, the commercial summer flounder percent 
share, the 2007 commercial quota (both initial and less the RSA), the 
quota reductions from overages as described above, and the resulting 
final adjusted 2007 commercial quota.

[[Page 75136]]



                                      TABLE 1. FINAL STATE-BY-STATE COMMERCIAL SUMMER FLOUNDER ALLOCATIONS FOR 2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Percent           Initial Quota         Initial Quota, Less RSA   Quota Overages (through     Adjusted Quota less
---------------------------------     Share    ------------------------------------------------------       10/31/06)\1\                 RSA\2\
                                 --------------                                                      ---------------------------------------------------
              State                                  lb            kg            lb           kg           lb           kg           lb           kg
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME                                0.04756       3,705         1,681         3,594        1,630        0            0            3,594        1,630
--------------------------------------------------------------------------------------------------------------------------------------------------------
NH                                0.00046       36            16            35           16           0            0            35           16
--------------------------------------------------------------------------------------------------------------------------------------------------------
MA                                6.82046       531,300       240,998       515,361      233,768      30,046       13,629       485,315      220,139
--------------------------------------------------------------------------------------------------------------------------------------------------------
RI                                15.68298      1,221,673     554,151       1,185,023    537,526      0            0            1,185,023    537,526
--------------------------------------------------------------------------------------------------------------------------------------------------------
CT                                2.25708       175,822       79,753        170,547      77,360       16,470       7,471        154,077      69,889
--------------------------------------------------------------------------------------------------------------------------------------------------------
NY                                7.64599       595,685       270,203       577,815      262,097      156,038      70,779       421,777      191,318
--------------------------------------------------------------------------------------------------------------------------------------------------------
NJ                                16.72499      1,302,843     590,970       1,263,758    573,241      0            0            1,263,758    573,241
--------------------------------------------------------------------------------------------------------------------------------------------------------
DE                                0.01779       1,386         629           1,344        610          50,528       22,920       -49,184      -22,310
--------------------------------------------------------------------------------------------------------------------------------------------------------
MD                                2.03910       158,842       72,051        154,077      69,889       0            0            154,077      69,889
--------------------------------------------------------------------------------------------------------------------------------------------------------
VA                                21.31676      1,660,533     753,218       1,610,717    730,621      0            0            1,610,717    730,621
--------------------------------------------------------------------------------------------------------------------------------------------------------
NC                                27.44584      2,137,976     969,786       2,073,837    940,692      0            0            2,073,837    940,692
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total \3\                         100.00        7,789,801     3,533,454     7,556,108    3,427,451    253,082      114,798      7,303,026    3,312,653
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 2006 quota overage is determined through comparison of landings for January through October 2006 plus any landings in 2005 in excess of the 2005
  quota that were not previously addressed in the 2006 quota specifications, with the final 2006 quota for each state (70 FR 77060, December 29, 2006).
\2\ Negative numbers indicate a state allocation in quota repayment status from previous year's overages.
\3\ Total quota is the sum of all states having allocation. A state with a negative number has an allocation of zero (0). Kilograms are as converted
  from pounds and may not necessarily add due to rounding.

    The Commission has established a system whereby 15 percent of each 
state's quota may be voluntarily set aside each year to enable vessels 
to land an incidental catch allowance after the directed fishery in a 
state has been closed. The intent of the incidental catch set-aside is 
to reduce discards by allowing fishermen to land summer flounder caught 
incidentally in other fisheries during the year, while ensuring that 
the state's overall quota is not exceeded. These Commission set-asides 
are not included in these 2007 final summer flounder specifications 
because NMFS does not have authority to establish such subcategories.
    The Commission's Summer Flounder, Scup, and Black Sea Bass 
Management Board (Board) did not adopt a 2007 summer flounder TAL 
recommendation at their joint meeting with the Council in October 2006, 
leaving the TAL for state waters undecided. The Board is scheduled to 
take action on recommending a 2007 TAL on December 10, 2006. There is 
insufficient time for NMFS to wait until after the Board's decision to 
submit documents to the Federal Register and still publish 
specifications no later than the Court-mandated January 1 deadline. 
While it is possible that the Board will adopt the TAL implemented by 
this rule, it is also possible that the Board will adopt a higher TAL, 
resulting in to inconsistent 2007 summer flounder TALs for state and 
Federal waters.
    Should the Board adopt a TAL higher than 12.983 million lb (5,889 
mt) for 2007, NMFS would be required to take immediate action and 
suspend the specifications contained in this final rule by utilizing an 
interim or emergency action in the Federal Register to implement 
alternative measures that ensure that overfishing does not occur in 
2007, and that the rebuilding schedule is not compromised by the dual-
TAL situation in 2007. These measures may consist of, but are not 
limited to, the following:
    <bullet> A complete closure of the commercial and recreational 
summer flounder fisheries in Federal waters (i.e., the Exclusive 
Economic Zone (EEZ)) in 2007. Possession of summer flounder by 
federally permitted vessels in the commercial or recreational for-hire 
fisheries would not be permitted.
    <bullet> No summer flounder RSA would be authorized for 2007.
    <bullet> Commercial landings in states that exceed their percentage 
allocation of the 7.79-million lb (3,534-mt) quota, which is 60 percent 
of the 12.983-million-lb (5,889-mt) TAL, from state water commercial 
landings constitute and overage; these states would be in quota 
repayment status for 2008 and subsequent years, as needed.
    <bullet> Conservation equivalency in the recreational fishery would 
not be approved for 2007 and possibly for subsequent years.
    If the Board adopts the 12.983-million-lb (5,889-mt) TAL, then no 
additional action by NMFS will be necessary to ensure that the 2007 F-
target is attained for the 2007 summer flounder fishery.

Delaware Summer Flounder Closure

    Table 1 indicates that, for Delaware, the amount of the 2006 summer 
flounder quota overage (inclusive of overharvest from previous years) 
is greater than the amount of commercial quota allocated to Delaware 
for 2007. As a result, there is no quota available for 2007 in 
Delaware. The regulations at Sec.  648.4(b) provide that Federal permit 
holders, as a condition of their permit, must not land summer flounder 
in any state that the Regional Administrator has determined no longer 
has commercial quota available for harvest. Therefore, effective 
January 1, 2007, landings of summer flounder in Delaware by vessels 
holding commercial Federal summer flounder fisheries permits are 
prohibited for the 2007 calendar year, unless additional quota becomes 
available through a quota

[[Page 75137]]

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 2007 calendar 
year, unless additional quota becomes available through a transfer.

Scup

    This final rule implements the specifications contained in the 
November 27, 2006, proposed rule: A 13.97-million-lb (6,337-mt) scup 
TAC and a 12.0-million-lb (5,443-mt) scup TAL. The FMP specifies that 
the Total Allowable Catch (TAC) associated with a given exploitation 
rate be allocated 78 percent to the commercial sector and 22 percent to 
the recreational sector. Scup discard estimates are deducted from both 
sectors' TACs to establish TALs for each sector, i.e., TAC minus 
discards equals TAL. The commercial TAC, discards, and TAL (commercial 
quota) are then allocated on a percentage basis to three quota periods, 
as specified in the FMP: Winter I (January-April)--45.11 percent; 
Summer (May-October)--38.95 percent; and Winter II (November-December)-
-15.94 percent. The recreational harvest limit is allocated on a 
coastwide basis. Recreational measures will be the subject of a 
separate rulemaking early in 2007.
    After deducting 360,000 lb (163 mt) of RSA for the approved 
research projects, the TAL is divided into a commercial quota of 
8,895,800 lb (4,035 mt) and a recreational harvest limit of 2,744,200 
lb (1,245 mt). If a project is not approved by the NOAA Grants Office, 
the research quota associated with the disapproved proposal will be 
restored to the scup TAL through publication in the Federal Register.
    Consistent with the revised quota setting procedures established 
for the FMP at 50 CFR 648.120(d)(4)(i), scup overages are determined 
based upon landings for the Winter I and Summer 2006 periods plus any 
previously unaccounted for landings from the 2005 calendar year. Table 
2 presents the final 2006 commercial scup quota for each period and the 
reported landings for the 2006 Winter I and Summer periods; there was 
no overage of the Winter I or Summer quota. In addition, there were no 
outstanding overages from the 2005 calendar year that were not included 
in the 2006 final rule (70 FR 77060, December 29, 2005). Therefore, no 
overage deduction adjustments are required to be made to the 2007 quota 
as part of this action. After June 30, 2007, NMFS will determine any 
overages that occur during the Winter II 2006 period. Any quota 
adjustments to the 2007 Winter II allocation determined to be necessary 
will be announced in the Federal Register in July 2007.

                             TABLE 2. SCUP PRELIMINARY 2006 LANDINGS BY QUOTA PERIOD
----------------------------------------------------------------------------------------------------------------
                                          2006 Quota           Reported 2006 landings   Quota Overages as of 10/
-------------------------------------------------------------    through 10/31/2006              31/2006
                                                             ---------------------------------------------------
          Quota Period                 lb            kg            lb           kg           lb           kg
----------------------------------------------------------------------------------------------------------------
Winter I                          5,382,589     2,441,542     3,557,859    1,613,845    0            0
----------------------------------------------------------------------------------------------------------------
Summer                            4,647,569     2,108,137     3,050,422    1,383,671    0            0
----------------------------------------------------------------------------------------------------------------
Winter II                         1,901,983     862,739       N/A          N/A          N/A          N/A
----------------------------------------------------------------------------------------------------------------
Total                             11,932,141    5,412,419     6,608,281    2,997,516    N/A          N/A
----------------------------------------------------------------------------------------------------------------
N/A = Not Applicable.

    Table 3 presents the commercial scup percent share, 2007 
TAC,projected discards, 2007 initial quota (with and without the 
RSAdeduction), and initial possession limits, by quota period. 
Toachieve the commercial quotas, this final rule implements aWinter I 
period (January-April) per-trip possession limit of30,000 lb (13.6 mt), 
and a Winter II period (November-December)initial per-trip possession 
limit of 2,000 lb (907 kg). TheWinter I per-trip possession limit will 
be reduced to 1,000 lb(454 kg) when 80 percent of the commercial quota 
allocated tothat period is projected to be harvested.

                                                           TABLE 3. INITIAL COMMERCIAL SCUP QUOTA ALLOCATIONS FOR 2007 BY QUOTA PERIOD
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                 Percent Share       Total Allowable Catch                  Discards                    Initial Quota            Initial Quota less RSA       Possession Limits
---------------------------------------------------------------------------------------------------------------------------------------------------------------------------    (Per Trip) \1\
                                                                                                                                                                           ---------------------
         Quota Period                                  lb              mt              lb              mt             lb             mt             lb             mt           lb         mt
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Winter I                        45.11            4,915,456       2,230           775,892         352            4,139,564      1,878          4,012,895      1,820          30,000     13,608
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Summer                          38.95           4,244,226        1,925           669,940         304            3,574,286      1,621          3,464,914      1,572          N/A        N/A
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Winter II                       15.94           1,736,918        788             274,168         124            1,462,750      664            1,417,991      643            2,000      907
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total                           100.00          10,896,600       4,943           1,720,000       780            9,176,600      4,163          8,895,800      4,035          N/A        N/A
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The Winter I possession limit will drop to 1,000 lb (454 kg) upon attainment of 80 percent of that period's allocation. The Winter II possession limit may be adjusted (in association with
  a transfer of unused Winter I quota to the Winter II period) via notification in the Federal Register.
\2\ Metric tons are as converted from pound and may not necessarily add due to rounding.
N/A = Not applicable.

    Consistent with the unused Winter I commercial scup quota rollover 
provisions at 50 CFR 648.120(a)(3), this final rule will maintain the 
Winter II possession limit-to-rollover amount ratios that had been in 
place for the

[[Page 75138]]

2006 fishing year, as shown in Table 4. The Winter II possession limit 
will increase by 1,500 lb (680 kg) for each 500,000 lb (227 mt) of 
unused Winter I period quota transferred, up to maximum of a 8,000 lb 
(3,629 kg).

TABLE 4. 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 to    Increase in Initial    Final Winter II
-----------------------------------------          Winter II           Winter II Possession    Possession Limit
                                         -----------------------------         Limit         after Rollover from
                                                                      ----------------------  Winter I to Winter
              lb                   kg                                                                 II
                                                 lb             kg         lb         kg    --------------------
                                                                                                 lb        kg
----------------------------------------------------------------------------------------------------------------
2,000                          907        0-499,999         0-227      0          0          2,000      907
----------------------------------------------------------------------------------------------------------------
2,000                          907        500,000-999,999   227-454    1,500      680        3,500      1,588
----------------------------------------------------------------------------------------------------------------
2,000                          907        1,000,000-        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

    The FMP specifies that the TAL is allocated 49 percent to the 
commercial sector and 51 percent to the recreational sector. The 
recreational harvest limit is allocated on a coastwide basis. 
Recreational measures will be the subject of a separate rulemaking 
early in 2007.
    This final rule implements the specifications contained in the 
October 27, 2006, proposed rule: A 5.0-million lb (2,270-mt) black sea 
bass TAL. After deducting 150,000 lb (68 mt) of RSA for the approved 
research projects, the TAL is divided into a commercial quota of 
2,376,500 lb (1,078 mt) and a recreational harvest limit of 2,473,500 
lb (1,122 mt). If a project is not approved by the NOAA Grants Office, 
the research quota associated with the disapproved proposal will be 
restored to the black sea bass TAL through publication in the Federal 
Register.
    Consistent with the revised quota setting procedures for the FMP, 
black sea bass overages are determined based upon landings for the 2005 
calendar year that were not accounted for in the 2006 final rule (70 FR 
77060, December 29, 2005) and any current fishing year overages through 
September 30, 2006. As there were no overages from either period, no 
overage deduction adjustment to the 2007 commercial quota is necessary.

Comments and Responses

    NMFS received 83 written comments during the 21-day comment period 
for the October 27, 2006, proposed rule. Comments were received from 
the following groups or individuals: Two U.S. Senators from New Jersey; 
four U.S. Representatives to Congress from New Jersey, two from New 
York, and one from Pennsylvania; the director of a New Jersey 
commercial fishing association; the Commission's Summer Flounder, Scup, 
and Black Sea Bass Management Board Chairman; the Council chairman; 
four conservation group representatives; the director and 56 individual 
members of a recreational fishing association; 12 members of a coastal 
New Jersey town chamber of commerce; a Rhode Island recreational angler 
association; the manager of a wholesale fish company; and six members 
of the public. Some parties submitted different comments on more than 
one occasion. Only comments that were applicable to the proposed 2007 
specifications, including the analyses used to support these 
specifications, are addressed in this preamble. Significant issues and 
concerns raised by commenters are summarized below and responded to as 
follows.

Summer Flounder Comments

Total Allowable Landings for 2007
    Comment 1: The majority of comments received urged NMFS to adopt 
the Council's preferred alternative TAL of 19.9 million lb (9,026 mt). 
Specifically, some commenters stated that the 19.9-million-lb (9,026-
mt) TAL complies with the 50-percent probability of achieving the 
target F rate (F<INF>max</INF>) in the FMP, some stated that the higher 
TAL meets the National Standards contained in the Magnuson-Stevens Act, 
continues rebuilding, and many stated that, by nature of being less 
restrictive than the 12.983-million-lb (5,889-mt) TAL implemented by 
this final rule, will have less of an impact on fishery participants 
and coastal communities than the TAL proposed by NMFS.
    Response: The Council recommended TAL of 19.9 million lb (9,206 mt) 
is an amount that was projected in the most recent stock assessment 
update in June 2006 to have a 50-percent probability of not exceeding 
F<INF>max</INF> (0.28). However, the peer-reviewed Summer Flounder 
Assessment and Biological Reference Point Update that has been used as 
the basis for the TAL NMFS is implementing through this rule indicates 
that fishing at the level proposed by the Council would not result in 
achieving the rebuilding biomass target until after 2022, 12 years 
after the end of the rebuilding period, even though the single year 
(2007) F target may not be exceeded. NMFS considers the results of the 
Reference Point update the best available scientific information (see 
responses to Comments 7,8, and 9).
    Fishing at a TAL that has only a 50-percent probability that Fmax 
will not be exceeded in 2007 will not rebuild the fishery by the end of 
the rebuilding period. NMFS has the obligation under the Magnuson-
Stevens Act to set annual quotas for summer flounder that rebuild the 
stock by January 1, 2010.
    As such, NMFS is implementing a more conservative 12.983-million-lb 
(5,889-mt) TAL based on the best science available, as specified in the 
updated assessment. This TAL has a 75-percent probability of not 
exceeding the Frebuild (F=0.15) level in 2007. This is necessary to 
ensure that rebuilding of summer flounder occurs by January 1, 2010.
    Impact on summer flounder fishery participants and coastal 
communities are addressed under Comment 10.
    Comment 2: One group of commenters requested that NMFS implement a 
14.156-million lb (6,421-mt) TAL in 2007.
    Response: Under the updated assessment for 2006, a TAL of 14.156 
million lb (6,421 mt) is associated with a 50-percent probability of 
not

[[Page 75139]]

exceeding the F target (F<INF>rebuild</INF>=0.15) for 2007. The Peer 
Review Panel convened for re-examination of the biological reference 
points recommended that fishing at a TAL that has only a 50-percent 
probability that Fmax will not be exceeded in 2007 will not rebuild the 
fishery by the end of the rebuilding period. The updated assessment 
indicated that a 14.156-million-lb (6,421-mt) TAL in 2007 would fall 
short of the rebuild goal. In addition, the Peer Review Panel 
recommended that the retrospective pattern that has resulted in 
underestimated F's in past years be taken into account when setting the 
2007 TAL. To do so, NMFS must set annual quotas for summer flounder 
that are based on much lower annual rates of removal than those of the 
past few years to rebuild the stock by January 1, 2010, as required by 
the Magnuson-Stevens Act. Therefore, NMFS is implementing a more 
conservative 12.983-million lb (5,889-mt) TAL that has a 75-percent 
probability of not exceeding the fishing mortality level 
(F<INF>rebuild</INF>= 0.15) in 2007. Achieving this fishing mortality 
level in 2007 is necessary to provide for rebuilding of the summer 
flounder stock by January 1, 2010. See response to Comment 1 for 
details.
    Comment 3: One commenter requested that NMFS implement a TAL in the 
range of 40.0 to 44.0 million lb (18,144 to 19,958 mt).
    Response: NMFS cannot implement a TAL that has less than 50-percent 
probability of achieving the Fmax in 2007 and that would not rebuild 
the stock by 2010. A TAL in the range of 40.0 to 44.0 million lb 
(18,144 to 19,958 mt) does not meet the required probability of 
attaining the F<INF>max</INF>, would not rebuild the stock by 2010, 
and, therefore, cannot be implemented by NMFS.

Rebuilding

    Comment 4: Many commenters questioned the need to rebuild fully the 
summer flounder stock within a 10-year period ending January 1, 2010. 
Specific commenters urged NMFS to utilize administrative discretion or 
to exercise flexibility and to extend the rebuilding period by 2 or 3 
years to avoid disproportionate economic impacts resulting from the 
reduced summer flounder TAL. Other commenters stated that the 10-year 
rebuilding period has no scientific or rational basis and should not be 
imposed on the summer flounder fishery.
    Response: The Magnuson-Stevens Act stipulates that an FMP must, for 
any fishery that is overfished, rebuild the fishery in as short a time 
as possible, not to exceed 10 years, except in three narrowly defined 
circumstances (where (1) the biology of the stock, (2) other 
environmental conditions, or (3) management measures under an 
international agreement in which the United States participates dictate 
otherwise.) Based on the results of all recent stock assessments and 
peer reviews, there is no information to suggest that either the 
biology of the stock or prevailing environmental conditions would 
prevent the summer flounder stock from rebuilding within the required 
timeframe; also, there are no international agreements to which the 
United States is a participant that are related to the management of 
summer flounder. Therefore, none of the exceptions to the 10-year 
rebuilding timeframe provided in the Magnuson-Stevens Act are 
applicable to current conditions for the summer flounder stock, and 
NMFS is not authorized to extend the rebuliding period beyond the 10-
year statutory limitation. The response to Comment 10 addresses the 
socioeconomic impacts of the summer flounder TAL implemented by this 
rule.
    Comment 5: The conservation organization representatives also 
expressed concern that rigid adherence to the 10-year rebuilding period 
mandated by the Magnuson-Stevens Act may have negative impacts on the 
reauthorization of the Magnuson-Stevens Act.
    Response: NMFS continues to support a strong Magnuson-Stevens Act 
and looks forward to working with the Congress and constituents during 
the reauthorization process. However, NMFS is bound to comply with the 
existing provisions of the Magnuson-Stevens Act.
    Comment 6: The majority of comments received on summer flounder 
stated that the stock has responded favorably to rebuilding efforts and 
that the recent plateau in stock size is a function of the stock having 
reached the maximum level attainable under current environmental and 
ecological conditions. Many of these commenters stated that they 
believe the stock to be rebuilt at its current level or that it can 
never attain the target rebuilding level, particularly within the 
required 10-year period.
    Response: Peer-reviewed information utilized for setting the 2007 
TAL indicates that the summer flounder stock is rebuilding but is not 
yet rebuilt. The current stock levels are only slightly above the 
current biomass threshold (\1/2\B<INF>msy</INF>) which is half of the 
rebuilt level. None of the peer-reviewed science indicates that the 
rebuilding target cannot be attained within the 10-year rebuilding 
period or that the biomass target is incorrect.

Use of Best Available Science

    Comment 7: Several commenters stated that NMFS is not using the 
best scientific information in setting the 2007 summer flounder TAL, 
including the modeling approach used.
    Response: The information used to set the summer flounder TAL is 
the best scientific information available, consistent with National 
Standard 2 of the Magnuson-Stevens Act. The information used in TAL 
setting, including the model and methods applied to it, have undergone 
substantial peer review in recent years. While recommendations have 
been made to develop additional modeling approaches, peer reviews have 
confirmed the current model and modeling approaches to be statistically 
valid for the annual stock assessment updates that provide the 
foundation for establishing the TAL.
    Comment 8: The conservation organization representatives requested 
that an outside, independent review of the summer flounder stock 
assessment occur before the 2008 TAL is set. They also requested that 
this review include an examination of alternative model structures, the 
management implications of retrospective patterns, and an assessment of 
ecosystem impacts that may be affecting summer flounder.
    Response: The summer flounder stock assessment has been 
independently reviewed by scientists from outside NMFS twice in the 
rebuilding period: In 2002 as part of Stock Assessment Review Committee 
(SARC) 35 and again in 2005 during SARC 41. The NMFS Office of Science 
and Technology convened an additional review of the biological 
reference points for the summer flounder stock to ensure that the 2007 
quota for the fishery is based on the best possible scientific 
information available. The review panelists selected were scientists 
with recognized stock assessment expertise who have not specifically 
been involved in past summer flounder assessments: Two from the NMFS 
Northwest Region and one from Louisiana State University. The peer 
review panel recommended several adjustments in the assessment, and 
these were incorporated into the analysis that stemmed from the peer 
review.
    NMFS is seeking to mitigate the retrospective patterns regarding 
fishing mortality by implementing a more conservative TAL for 2007, to 
ensure that the necessary F's are actually achieved.

[[Page 75140]]

    The next full summer flounder stock assessment is scheduled for 
June 2008. The subcommittee meeting in which the assessment is 
conducted is an open meeting, and NMFS encourages the commenters to 
participate and present relevant data and analyses at the meeting.
    Comment 9: Several commenters stated that the TALs authorized by 
NMFS for the first 7 years of the rebuilding period were set at 
incorrect levels. These commenters stated that TALs had been set too 
high, were overly optimistic, were routinely exceeded (i.e., as 
indicated by the retrospective analysis of F) and did not adequately 
compensate year to year to ensure timely rebuilding of the summer 
flounder stock.
    Response: For each year during the rebuilding period, NMFS set the 
summer flounder TAL based on the best scientific information available, 
consistent with National Standard 2 of the Magnuson-Stevens Act. The 
information for setting the annual TAL is provided through the stock 
assessment update. In some years, additional levels of review are 
conducted. In 2002 and 2005, this included an external peer review of 
the stock assessment vetted through independent stock assessment 
scientists provided by the Center for Independent Experts (CIE) and 
reported on through the Center's Stock Assessment Workshop (SAW) and 
SARC process (35th and 41st, SARCs, respectively). For 2007, the annual 
stock assessment is accompanied by a peer reviewed Summer Flounder 
Assessment and Biological Reference Point Update.
    The regulations state that the Council shall recommend, and NMFS 
shall implement, measures (including the TAL) necessary to ensure, with 
at least a 50-percent probability of success, that the applicable 
specified F will not be exceeded. This requirement is also consistent 
with a 2000 Federal Court Order (Natural Resources Defense Council v. 
Daley, Civil No. 1:99 CV 00221 (JLG)) regarding the setting of the 
summer flounder TAL. Through the course of the rebuilding period, NMFS 
has set TALs estimated to have at least a 50-percent probability of not 
exceeding F<INF>max</INF>. NMFS is also required to ensure, under the 
Magnuson-Stevens Act, that the summer flounder stock is rebuilt within 
10 years.
    In the first 4 years of the rebuilding period, 2000-2004, the 
summer flounder stock was rebuilding at a rate that appeared likely to 
achieve the rebuilding target by 2009. During 2004, the Council 
provided, at NMFS's request, a rebuilding trajectory so that TALs could 
be recommended that would ensure that rebuilding continued, as needed, 
to the eventual target by 2009. These projections indicated that 
setting TALs with an F<INF>max</INF> at the 75-percent probability 
level, rather than the 50-percent probability level, would rebuild the 
stock within the 10-year time frame. Based on this information, the 
Council recommended, and NMFS implemented, TALs of 30.3 million lb 
(13,744 mt) for 2005 and 33.0 million lb (14,969 mt) for 2006, 
consistent with the precautionary 75-percent probability of achieving 
the F target (F<INF>max</INF>).
    In 2005, new information on the retrospective pattern that 
underestimated previous years' F and revised reference points 
associated with a new stock assessment indicated that the 33.0-million-
lb (13,744-mt) TAL set for 2006 during 2004 would need to be lowered to 
23.59 million lb (10,700 mt) to achieve even a 50-percent probability 
of achieving the F target. The Council recommended a constant harvest 
TAL of 26.0 million lb (11,794 mt) for 2006-2008 that would average a 
50-percent probability of achieving the target F for the 3-year period 
but that would not achieve the necessary target in 2006. NMFS 
implemented the 23.59-million-lb (10,700-mt) TAL to ensure that the 
mortality objective met the regulatory requirement of at least a 50-
percent probability of attaining the F target in 2006. Doing so was 
controversial and many of the above listed commenters also responded to 
the 2006 specification proposed rule, asking NMFS not to implement the 
more conservative TAL of 23.59 million lb (10,700 mt).
    Annual stock assessment updates to information used in previous 
year's TAL setting continue to illustrate that fishing mortality has 
been underestimated in previous years, while stock size and recruitment 
has been overestimated. Now, in light of the best science available and 
considering the retrospective patterns of F, stock size, and 
recruitment, it is clear that fishing at a TAL that has only a 50-
percent probability that F<INF>max</INF> will not be exceeded in 2007 
will not rebuild the fishery by the end of the rebuilding period. 
Therefore, NMFS is implementing a more conservative 12.983-million lb 
(5,889-mt) TAL that has a 75-percent probability of not exceeding the 
fishing mortality level (F<INF>rebuild</INF>= 0.15) in 2007. Achieving 
this fishing mortality level in 2007 is necessary to provide for 
rebuilding of the summer flounder stock by January 1, 2010.

Negative Socio-economic Impacts of a Reduced TAL

    Comment 10: The majority of those commenting on summer flounder 
spoke about negative impacts associated with the reduction in TAL for 
2007. Comments suggested that the 45-percent reduction in TAL from 2006 
to 2007 would have severe economic impacts to charter, for hire, head 
boat, and commercial fishing vessels, and would have substantial 
impacts to fishing-related support industries ranging from bait shops 
to ocean-front hotels. Some commenters stated that the magnitude of the 
negative impacts would be higher than outlined in the EA/RIR/IRFA.
    Response: Impacts of the 12.983-million lb (5,889-mt) TAL have been 
fully analyzed in the EA/RIR/IRFA published in the proposed rule (71 FR 
62972, October 27, 2006). These analyses are based on the best 
information available and the details of the EA/RIR/IRFA are not 
repeated here in their entirety.
    NMFS recognizes that substantial socioeconomic impacts are 
associated with the implementation of the 2007 TAL. NMFS has statutory 
and regulatory obligations to set annual harvest levels that, based on 
the best information available, will have at least a 50-percent 
probability of not exceed the annual fishing mortality level target and 
that will ensure that the summer flounder stock will be rebuilt within 
the specified time frame. As previously stated in the response to 
Comment 1, NMFS has selected a conservative TAL that has a 75-percent 
probability of attaining the level needed (F<INF>rebuild</INF>) in 2007 
to ensure rebuilding by January 1, 2010, in order to comply with the 
mandates of the Magnuson-Stevens Act. Although this final rule will not 
directly affect support industries as these entities do not hold 
Federal permits and are, therefore, not directly regulated, potential 
reductions in fishing effort and associated expenditures may have 
indirect impacts on hotels, restaurants, gear and bait shops, and other 
associated businesses. Sufficient data are not available to enumerate 
or characterize the impacts on these businesses.

Scup Comments

    Comment 11: Two commenters wrote in support of the Council and 
Board recommended TAL of 16.0 million lb (7,257 mt) for 2007. One of 
these commenters stated that the 16.0-million lb (7,257-mt) TAL is 
sufficiently risk-averse and a substantial reduction from the 31.12-
million lb (14,116-mt) TAL that was calculated to achieve the

[[Page 75141]]

targeted exploitation rate of 21 percent in 2007.
    Response: Scup is considered overfished and the Council is 
currently developing Amendment 14 to the FMP to implement a scup 
rebuilding plan. Spring survey indices values have fallen below the 
biomass threshold, which is utilized for long-term potential catch 
projections. NMFS is implementing a risk-averse 12.0-million lb (5,443-
mt) TAL for 2007, given the current overfished status for scup, poor 
2004 and 2005 year classes, and continued uncertainty associated with 
the survey indices. The NMFS implemented TAL value falls within the 
range of yields expected at about \1/2\ B<INF>msy</INF> (11-16.5 
million lb (4,990-7,484 mt)) based on the long-term potential catch, 
and would constrain harvest to the level of actual landings in 2005. 
The Scup Monitoring Committee and Council staff agreed with this 
approach.
    Comment 12: One commenter stated that reduced values from the 
spring survey were not a compelling reason to implement a decreased TAL 
for 2007.
    Response: NMFS utilized several factors in the decision to 
implement a more risk-averse TAL for 2007, including, but not limited 
to, the reduced spring survey indices values. Scup is currently 
overfished and the Council is developing a formal rebuilding plan to be 
implemented through Amendment 14 to the FMP. The response to Comment 11 
outlines the information used as NMFS's justification for implementing 
a more risk-averse TAL for 2007.
    Comment 13: One commenter stated that a more precautionary approach 
should be utilized in setting the 2007 scup TAL. This commenter also 
stated that scup management requires a significant overhaul and a 
rebuilding plan is long overdue.
    Response: NMFS is implementing a TAL that is at the lower end of 
the range of yields expected at about \1/2\B<INF>msy</INF> (11-16.5 
million lb (4,990-7,484 mt)). A further reduction does not appear to be 
warranted at this time. The Council is currently developing Amendment 
14 to the FMP to address scup rebuilding.
    Comment 14: One commenter stated that the reduced quota will result 
in the loss of recently re-established markets for scup, particularly 
the fresh fish market.
    Response: NMFS is required to implement a TAL for 2007 that will 
contribute to the rebuilding of the scup stock. NMFS has selected a 
12.0-million lb (5,443-mt) TAL for the reasons outlined in the response 
to Comment 11 (above) to meet that end. The 2007 TAL is consistent with 
the level of landings that occurred in 2005 and NMFS considers it 
unlikely to result in a loss of established markets for scup.

Black Sea Bass Comments

    Comment 15: Three commenters relayed general opposition to the 2007 
black sea bass TAL being implemented by NMFS, stating that disruption 
of black sea bass supply will result in market niches being filled by 
other fish and/or imports and ultimately lost.
    Response: NMFS is implementing a 2007 black sea bass TAL that is a 
37.5-percent decrease from 2006. NMFS is implementing a more risk-
averse TAL for 2007 in light of the most recent biomass indices, the 
uncertainty in the stock status determination criteria, and to ensure 
continued rebuilding to the end of the rebuilding period that ends in 
2009. The 2007 TAL is consistent with the level of landings that 
occurred in 2005 and NMFS considers it unlikely to result in a loss of 
established markets for black sea bass.
    NMFS recognizes that socio-economic impacts may be associated with 
the implementation of the 2007 black sea bass TAL. These impacts may 
include industries that are involved with with the supply, purchase, 
distribution, and sale of black sea bass for consumption. NMFS has 
regulatory and statutory obligations to set annual harvest levels that, 
based on the best scientific information available, will not exceed 
recommended fishing mortality levels and that will ensure that the 
black sea bass stock will be rebuilt within the specified time frame, 
thus providing for long-term sustainable yields. The 2007 TAL meets the 
fishing mortality objectives and has a high probability of ensuring 
continued rebuilding.
    Comment 16: One commenter stated that trawl surveys are an 
unreliable method for surveying black sea bass.
    Response: The 43rd SAW, held in July 2006, included black sea bass. 
The Southern Demersal Working Group concluded that the data available, 
including trawl survey information, were adequate to perform a stock 
assessment for black sea bass. The SARC-43 panel utilized length data 
incorporating growth information, landings estimates, fishery length 
frequencies, and survey length frequencies to get preliminary estimates 
of biomass and fishing mortality rates. The SARC-43 panel did not 
endorse using the existing biomass reference point (the 3-year average 
weight per tow of black sea bass (>22 cm) in the Center spring trawl) 
as a basis for management. NMFS has encouraged the Council to develop 
replacement stock status determination criteria that are scientifically 
supportable and that can be relied on to measure stock rebuilding. The 
Council may consider additional data sources beyond trawl data when 
developing the criteria.
    Comment 17: One commenter stated that the black sea bass rebuilding 
period should be liberalized to a 20-year time frame.
    Response: The required time frame for stock rebuilding under the 
Magnuson-Stevens Act is outlined in response to Comment 4, and is not 
repeated here.

Research Set-Aside Comments

    Comment 18: Two comments were received regarding the 2007 RSA 
program. One supported up to 3 percent for the 2007 TALs being set 
aside for research; one opposed the RSA program in its entirety.
    Response: NMFS continues to support the RSA program as a useful 
means of acquiring information necessary to assess and manage the 
fisheries.

Classification

    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under 5 U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness 
period for this rule. This action establishes annual quotas for the 
summer flounder, scup, and black sea bass fisheries and possession 
limits for the commercial scup fishery. Preparation of the proposed 
rule was dependent on the submission of the final EA/RIR/IRFA by the 
Council and on the submission of a supplemental economic analysis by 
the Northeast Fisheries Science Center (Center), both of which occurred 
in October 2006, in order for the agency to provide the public with 
information from the environmental and economic analyses as required in 
rulemaking. NMFS published the proposed rule on October 27, 2006, with 
a 21-day comment period, in order to allow for finalization of the 
proposed specifications by January 1, 2007. NMFS was unable to obtain 
the necessary data from the Council and Center before October 2006, to 
finalize the specifications. Publication of the adjusted summer 
flounder quota at the start of the fishing year is required by the 
order of Judge Robert Doumar in North Carolina Fisheries Association v. 
Daley.
    If implementation of the specifications is delayed until beyond 
January 1, 2007, NMFS will be prevented from carrying out its legal 
obligation to prevent overfishing of these three species. If a 30-day 
delay in effectiveness were to be required, the lack of effective quota 
specifications would prevent NMFS from closing the

[[Page 75142]]

fishery should landings exceed the quotas. The summer flounder, scup, 
and black sea bass fisheries are all expected to be active at the start 
of the fishing season in 2007. 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 large overages that 
would have distributional effects on other quota periods and could 
disadvantage some gear sectors.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Included in this final rule is the FRFA prepared pursuant to 5 
U.S.C. 604(a). The FRFA incorporates the IRFA, a summary of the 
significant issues raised by the public comments in response to the 
IRFA, 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 these specifications are 
explained in the preambles to the proposed rule and this final rule and 
are not repeated here.

Summary of Significant Issues Raised in Public Comments

    Several of the comment letters received on the proposed 
specifications specifically opposed the reductions to the TALs for 
summer flounder, scup, and black sea bass. Many of the comments 
addressed the potential economic impact of reduction of the summer 
flounder TAL on the recreational fishing industry, particularly in New 
York and New Jersey. Although consideration of the reduced TALs was 
given, no changes were made in the final rule as a result of these 
comments. For a summary of the comments received, and the responses 
thereto, refer to the ``Comments and Responses'' section of this 
preamble.

Description and Estimate of Number of Small Entities to Which the Rule 
will Apply

    The categories of small entities likely to be affected by this 
action include commercial and charter/party vessel owners holding an 
active Federal permit for summer flounder, scup, or black sea bass, as 
well as owners of vessels that fish for any of these species in state 
waters. The Council estimates that the 2007 quotas could affect 2,242 
vessels that held a Federal summer flounder, scup, and/or black sea 
bass permit in 2005. However, the more immediate impact of this final 
rule will likely be felt by the 906 vessels that actively participated 
(i.e., landed these species) in these fisheries in 2005.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

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

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

    Specification of commercial quotas and possession limits is 
constrained by the conservation objectives set forth in the FMP and 
implemented at 50 CFR part 648 under the authority of the Magnuson-
Stevens Act. Economic impacts of reduced quota specifications, that 
reduce the number of fish that may be taken by participants of both 
commercial and recreational fisheries, may be offset by adjustments to 
such things as commercial fish sizes, changes to mesh size, gear 
restrictions, or possession and trip limits that may increase 
efficiency or value of the fishery. This action contains no adjustments 
to 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 for the 
maximum availability of fish while still meeting the required 
objectives of the FMP, its implementing regulations, and the Magnuson-
Stevens Act.
    The economic analysis for the 2007 specifications assessed the 
impacts of five of the six management alternatives. Council staff 
provided analysis for Alternatives 1, 2, and 3, while the Center 
provided analysis for Alternatives 5 and 6. The no action alternative, 
designated as Alternative 4, 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 would 
substantially complicate the approved management program for these 
fisheries, and would very likely result in overfishing of the 
resources.
    Alternatives 1 (Council preferred), 3 (status quo), and 5 (NMFS 
analyzed) all have an economic impact that is less than or equal to the 
alternative implemented by this rule, depending on the specific species 
examined. These three alternatives were evaluated by NMFS as outlined 
below:
    Alternative 3 (status quo) would provide for the maximum amount of 
landings within the range of alternatives and would produce the 
smallest impact on small entities. However, Alternative 3 would likely 
result in the biological targets (i.e., fishing mortality and 
exploitation rates) specified in the FMP being exceeded. Alternative 3 
is inconsistent with the goals and objectives of the FMP and the 
Magnuson-Stevens Act.
    Alternative 1 (Council preferred), the second least restrictive 
alternative with the second smallest impact to small entities, would 
also provide for landing levels that could not be implemented. 
Alternative 1 is not sufficiently risk-averse for summer flounder, and 
fishing mortality would likely exceed the biological targets specified 
in the FMP, resulting in continued overfishing. In addition, 
Alternative 1 did not adequately address concerns raised by Council 
staff and the Monitoring Committee regarding the scup and black sea 
bass biological targets and status of these stocks.
    Alternative 5 (NMFS analyzed) is more restrictive for summer 
flounder than Alternatives 1 or 3, but is equal to the most restrictive 
alternatives for scup and black sea bass. The measures contained in 
Alternative 5 were not selected because they were not sufficiently 
risk-averse for the required rebuilding of the summer flounder stock.
    Alternative 2 is the most restrictive alternative for summer 
flounder and equal to the most restrictive alternatives for scup and 
black sea bass. Accordingly, Alternative 2 is associated with the 
highest economic impact to small entities, particularly for summer 
flounder. This alternative would meet all the objectives of the FMP and 
satisfy the requirements of the Magnuson-Stevens Act for all three 
species. This alternative was not selected because the measures 
contained therein were overly restrictive for summer flounder in light 
of the best scientific information available. Three alternatives, 
including the alternative implemented by this action, provide the same 
quota level for scup and black sea bass as Alternative 2.
    This final rule implements Alternative 6, which consists of the 
second most restrictive quota of those

[[Page 75143]]

considered for summer flounder and is equal to the most restrictive 
quota alternatives considered for scup and black sea bass. As such, the 
economic impacts of the alternative are the second highest for summer 
flounder and equal to the highest impacts for scup and black sea bass. 
Relative to 2006, the 2007 commercial quotas and recreational harvest 
limits contained in this action would result in the following TAL 
decreases for the commercial and recreational sectors:
    <bullet> 45 percent for summer flounder
    <bullet> 26 percent for scup
    <bullet> 38 percent for black sea bass
    This alternative was selected because it is based on the best 
science available and is consistent with the goals, objectives, and 
requirements of the FMP, its implementing regulations, and the 
Magnuson-Stevens Act. It contains the highest landing limits that 
achieve the highest probability of attaining the fishing mortality and 
exploitation targets for the summer flounder fishery for 2007 among the 
alternatives considered. Alternative 6 follows the recommendation of 
the Monitoring Committee and Council staff for a risk-averse quota in 
the scup fishery and was selected because of the current overfished 
status of the fishery, uncertainty associated with the current survey 
indices, and poor 2004 and 2005 year classes. The black sea bass quota 
in Alternative 6 was also recommended by the Monitoring Committee and 
Council staff. The black sea bass quota in Alternative 6 was selected 
as a risk-averse measure that will constrain harvest within the 2005 
and 2006 levels until such time that stock determination criteria that 
are scientifically supportable can be developed.
    Table 5 presents the 2007 initial TALs, RSA, commercial quotas 
adjusted for RSA, and preliminary recreational harvests for the 
fisheries under the five analyzed quota alternatives.

                                         TABLE 5. COMPARISON OF THE ALTERNATIVES OF QUOTA COMBINATIONS REVIEWED
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Initial TAL                  RSA            2006 Commercial Quota   Preliminary Adjusted         Preliminary
---------------------------------------------------------------------------------         Overage            Commercial Quota      Recreational Harvest
                                                                                 ------------------------------------------------          Limit
                                  million lb      mt          lb          mt                                                     -----------------------
                                                                                      lb          mt      million lb      mt      million lb      mt
--------------------------------------------------------------------------------------------------------------------------------------------------------
Quota Alternative 1 (Council's Preferred)
--------------------------------
Summer Flounder                  19.9         9,026       567,092     257         253,082     115         11.45       5,193       7.63        3,462
----------------------------------------------------------------------------------------------------------------------
Scup                             16           7,257       480         218         0           0           11.93       5,411       3.59        1,628
--------------------------------------------------------------------------------------------------------------------------------------------------------
Black Sea Bass                   6.5          2,948       132,000     60          0           0           3.12        1,415       3.25        1,474
--------------------------------------------------------------------------------------------------------------------------------------------------------
Quota Alternative 2 (Most Restrictive)
--------------------------------
Summer Flounder                  5.22         2,368       156,600     71          253,082     115         2.89        1,309       19.24       873
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scup                             12           5,442       360,000     163         0           0           8.90        4,037       2.74        1,243
--------------------------------------------------------------------------------------------------------------------------------------------------------
Black Sea Bass                   5            2,268       132,000     60          0           0           2.39        1,084       2.48        1,125
--------------------------------------------------------------------------------------------------------------------------------------------------------
Quota Alternative 3 (Status-Quo-Least Restrictive)
--------------------------------
Summer Flounder                  23.59        10,700      567,062     257         253,082     115         13.66       6,197       9.11        4,131
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scup                             16.27        7,380       488,100     221         0           0           12.13       5,502       3.65        1,656
--------------------------------------------------------------------------------------------------------------------------------------------------------
Black Sea Bass                   8            3.629       132,000     60          0           0           3.86        1,751       4.01        1,819
--------------------------------------------------------------------------------------------------------------------------------------------------------
Quota Alternative 4 (No Action- described but not analyzed)
--------------------------------
Quota Alternative 5 (NMFS Analysis)
--------------------------------
Summer Flounder                  14.156       6,421       424,680     193         253,082     115         8.09        3,668       5.39        2,445
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scup                             12           5,443       360,000     163         0           0           8.90        4,037       2.74        1,243
--------------------------------------------------------------------------------------------------------------------------------------------------------
Black Sea Bass                   5            2,268       150,000     68          0           0           2.38        1,078       2.47        1,122
--------------------------------------------------------------------------------------------------------------------------------------------------------
Quota Alternative 6 (NMFS Analysis-Implemented by this Final Rule)
--------------------------------
Summer Flounder                  12.983       5,889       389,490     177         253,082     115         7.40        3,359       4.94        2,239
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scup                             12           5,443       360,000     163         0           0           8.90        4,037       2.74        1,243
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 75144]]

 
Black Sea Bass                   5            2,268       150,000     68          0           0           2.38        1,084       2.47        1,122
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The revenue decreases associated with the RSA program are expected 
to be minimal, and are expected to yield important benefits associated 
with improved fisheries data. It should also be noted that fish 
harvested under the RSA would be sold, and the profits would be used to 
offset the costs of research. As such, total gross revenue to the 
industry will not decrease substantially if the RSAs are utilized.

Small Entity Compliance Guide

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

    Dated: December 8, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 06-9677 Filed 12-8-06; 4:13 pm]
BILLING CODE 3510-22-S