[Federal Register Volume 77, Number 250 (Monday, December 31, 2012)]
[Rules and Regulations]
[Pages 76942-76950]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31424]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 121009528-2729-02]
RIN 0648-XC287


2013-2014 Summer Flounder and Scup Specifications; 2013 Black Sea 
Bass Specifications; Preliminary 2013 Quota Adjustments; 2013 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 2013 summer flounder, 
scup, and black sea bass fisheries, as well as the 2014 summer flounder 
and scup fisheries. This final rule specifies allowed harvest limits 
for both commercial and recreational fisheries. This action prohibits 
federally permitted commercial fishing vessels from landing summer 
flounder in Delaware in 2013 due to continued quota repayment from 
previous years' overages.
    These actions are necessary to comply with regulations implementing 
the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, 
as well as to ensure compliance with the Magnuson-Stevens Fishery 
Conservation and Management 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 2013 and 2014.

DATES: Effective January 1, 2013, through December 31, 2014.

ADDRESSES: Copies of the specifications document, consisting of an 
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

[[Page 76943]]

alternatives contained in this final rule. Copies of the small entity 
compliance guide are available from John K. Bullard, Regional 
Administrator, Northeast Region, National Marine Fisheries Service, 55 
Great Republic Drive, Gloucester, MA 01930-2298.

FOR FURTHER INFORMATION CONTACT: Carly Bari, Fishery Management 
Specialist, (978) 281-9224.

SUPPLEMENTARY INFORMATION:

Background

    The Mid-Atlantic Fishery Management Council (Council) and the 
Atlantic States Marine Fisheries Commission (Commission) cooperatively 
manage the summer flounder, scup, and black sea bass fisheries under 
the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan 
(FMP). Fishery specifications in these fisheries include various catch 
and landing subdivisions, such as the commercial and recreational 
sector annual catch limits (ACLs), annual catch targets (ACTs), sector-
specific landing limits (i.e., the commercial fishery quota and 
recreational harvest limit (RHL)), and research set-aside (RSA) 
established for the upcoming fishing year. Details of each subdivision 
appear later in this rule.
    The FMP and its implementing regulations establish the Council's 
process for establishing specifications. All requirements of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), including the 10 national standards, also apply to 
specifications.
    The management units specified in the FMP include summer flounder 
(Paralichthys dentatus) in U.S. waters of the Atlantic Ocean from the 
southern border of North Carolina northward to the U.S./Canada border, 
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. Detailed background information regarding the 
status of the summer flounder, scup, and black sea bass stocks and the 
development of the 2013 and 2014 specifications for these fisheries was 
provided in the proposed specifications (77 FR 68723; November 16, 
2012). That information is not repeated here.
    NMFS will establish the 2013 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.

2013 and 2014 Specifications

    This final rule implements TAL, RSA, and RHL for each management 
unit for 2013 and 2014, consistent with the recommendations of the 
Council:
    Summer Flounder: For 2013, a TAL of 19.07 million lb (8,650 mt), 
including RSA of 589,800 lb (267 mt); a commercial quota of 11.44 
million lb (5,189 mt); and an RHL of 7.63 million lb (3,459 mt). For 
2014, a TAL of 19.98 million lb (8,609 mt), including proposed RSA of 
587,100 lb (266 mt); a commercial quota of 11.39 million lb (5,166 mt); 
and an RHL of 7.59 million lb (3,444 mt).
    Scup: For 2013, a TAL of 31.08 million lb (14,098 mt), including 
RSA of 958,950 lb (435 mt); a commercial quota of 23.53 million lb 
(10,671 mt); and an RHL of 7.55 million lb (3,425 mt). For 2014, a TAL 
of 28.98 million lb (13,145 mt), including proposed RSA of 896,100 lb 
(406 mt); a commercial quota of 21.95 million lb (9,955 mt); and an RHL 
of 7.03 million lb (3,188 mt).
    Black Sea Bass: For 2013, a TAL of 3.63 million lb (1,646 mt), 
including RSA of 111,900 lb (50.8 mt); a commercial quota of 1.78 
million lb (805 mt); and an RHL of 1.85 million lb (838 mt).

                                                    Table 1--Summary of the 2013-2014 Specifications
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Summer Flounder                      Scup               Black Sea Bass
                                                                         -------------------------------------------------------------------------------
                                                                               2013            2014            2013            2014            2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
ABC......................................  million lb...................           22.34           22.24           38.71           35.99            4.50
                                           mt...........................          10,133          10,088          17,557          16,325           2,041
Commercial ACL...........................  million lb...................           12.11           12.05           30.19           28.07            2.13
                                           mt...........................           5,491           5,467          13,694           12734             966
Recreational ACL.........................  million lb...................           10.23           10.19            8.52            7.92            2.37
                                           mt...........................           4,642           4,621           3,863           3,592           1,075
Commercial ACT...........................  million lb...................           12.11           12.05           30.19           28.07            2.13
                                           mt...........................           5,491           5,467          13,694           12734             966
Recreational ACT.........................  million lb...................           10.23           10.19            8.52            7.92            2.37
                                           mt...........................           4,642           4,621           3,863           3,592           1,075
Commercial Quota.........................  million lb...................           11.44           11.39           23.53           21.95            1.78
                                           mt...........................           5,189           5,166          10,671           9,955             805
RHL......................................  million lb...................            7.63            7.59            7.55            7.03            1.85
                                           mt...........................           3,459           3,444           3,425           3,188             838
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Commercial Quotas and RHLs include the 3-percent RSA reduction.

    Additional detail for each species' specifications is provided, as 
follows.

Summer Flounder

    The summer flounder stock was declared rebuilt in 2011. The stock 
assessment update utilized to derive specification recommendations 
determined that summer flounder are not overfished and that overfishing 
did not occur in 2011, the most recent year of available data. This 
stock assessment update did, however, indicate that biomass is 
currently lower than in recent years. As a result, the catch limits for 
2013 and 2014 are slightly lower than in 2012.
    The overfishing limit (OFL) for summer flounder for 2013 was 
estimated to be 29.81 million lb (13,523 mt). Based on this 
information, the 2013 ABC for summer flounder is 22.34 million lb 
(10,133 mt), and, using a strategy of a constant fishing mortality 
rate, that the 2014 ABC for summer flounder is 22.24 million lb (10,088 
mt).

[[Page 76944]]

Consistent with the summer flounder regulations, the sum of the 
recreational and commercial sector ACLs is equal to the ABC. ACL is an 
expression of total catch (i.e., landings and dead discarded fish) in 
each sector. To derive the ACLs, the sum of the sector-specific 
estimated discards is removed from the ABC to derive the landing 
allowance. The resulting landing allowance is apportioned to the 
commercial and recreational sectors by applying the FMP allocation 
criteria: 60 percent to the commercial fishery and 40 percent to the 
recreational fishery. Although the derived ACLs are not split exactly 
at 60/40, the landing portions of the ACLs preserve the 60/40 
allocation split, consistent with the FMP. This process results in a 
commercial ACL for summer flounder of 12.11 million lb (5,491 mt) for 
2013, and 12.05 million lb (5,467 mt) for 2014. The recreational ACLs 
are 10.23 million lb (4,642 mt) for 2013 and 10.19 million lb (4,621 
mt) for 2014.
    Consistent with the quota-setting procedures for the FMP, summer 
flounder overages are determined based upon landings for the period 
January-October 2012, plus any previously unaccounted for overages. 
Table 2 summarizes, for each state, the commercial summer flounder 
percent shares as outlined in Sec.  600.100(d)(1)(I), the resultant 
2013 commercial quotas (both initial and after deducting the RSA), the 
quota overages as described above, and the final adjusted 2013 
commercial quotas, after deducting the RSA.

[[Page 76945]]

[GRAPHIC] [TIFF OMITTED] TR31DE12.001

    Table 3 presents the initial allocations of summer flounder for 
2014, by state, with and without the commercial portion of the RSA 
deduction. These state quota allocations for 2014 are preliminary and 
are subject to change if

[[Page 76946]]

there are overages of states' quotas carried over from a previous 
fishing year, as well as any adjustments needed after the 2014 RSA 
projects are awarded. The final commercial quota allocations will be 
announced in a Federal Register notice prior to the start of the 2014 
fishing year.

                        Table 3--2014 Preliminary Summer Flounder State Commercial Quotas
----------------------------------------------------------------------------------------------------------------
                                                     Initial Commercial Quota      Commercial Quota less RSA \1\
              State                Percent Share ---------------------------------------------------------------
                                                        lb            kg \2\            lb            kg \2\
----------------------------------------------------------------------------------------------------------------
ME..............................         0.04756           5,579           2,533           5,417           2,457
NH..............................         0.00046              54              24              52              24
MA..............................         6.82046         800,091         363,242         776,788         352,345
RI..............................        15.68298       1,839,732         835,240       1,786,147         810,183
CT..............................         2.25708         264,772         120,207         257,061         116,601
NY..............................         7.64699         897,050         407,261         870,922         395,044
NJ..............................        16.72499       1,961,967         890,735       1,904,823         864,013
DE..............................         0.01779           2,087             947           2,026             919
MD..............................         2.03910         239,202         108,598         232,235         105,340
VA..............................        21.31676       2,500,616       1,135,282       2,427,783       1,101,224
NC..............................        27.44584       3,219,604       1,461,703       3,125,829       1,417,852
                                 -------------------------------------------------------------------------------
    Total \3\...................       100.00001      11,730,754       5,326,000      11,389,082       5,166,000
----------------------------------------------------------------------------------------------------------------
\1\ Preliminary Research Set-Aside amount is 587,100 lb (266 mt).
\2\ Kilograms are as converted from pounds and do not sum to the converted total due to rounding.
\3\ Rounding of quotas results in totals exceeding 100 percent.

Delaware Summer Flounder Closure

    Table 2 shows that, for Delaware, the amount of overharvest from 
previous years is greater than the amount of commercial quota allocated 
to Delaware for 2013. As a result, there is no quota available for 2013 
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, 2013, landings of summer flounder in 
Delaware by vessels holding commercial Federal summer flounder permits 
are prohibited for the 2013 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 2013 calendar year, unless additional quota becomes 
available through a transfer, as mentioned above.
Scup
    The OFL for scup is 47.80 million lb (21,680 mt). Using the 
appropriate control rule and applying the Council's risk policy, the 
ABC for scup is 38.71 million lb (17,557 mt) for 2013, and, using a 
constant fishing mortality rate of 0.142, the 2014 ABC is 35.99 million 
lb (16,325 mt). Similar to summer flounder, the stock assessment update 
upon which the specifications are based indicates that scup biomass is 
currently lower than in recent years. Therefore, the 2013 and 2014 
catch limits are slightly lower than in 2012, but are still relatively 
high compared to recent landings.
    The scup management measures specify that the ABC is equal to the 
sum of the commercial and recreational sector ACLs. The ACTs (both 
commercial and recreational) are equal to the respective ACL for 2013-
2014. Therefore, commercial sector ACLs/ACTs are 30.19 million lb 
(13,694 mt) for 2013, and 28.07 million lb (12,734 mt) for 2014. The 
recreational sector ACLs/ACTs are 8.52 million lb (3,863 mt) and 7.92 
million lb (3,592 mt) for 2013 and 2014, respectively.
    After deducting 958,950 lb (435 mt) from the ACL for 2013 RSA, the 
scup commercial quota is reduced to 23.53 million lb (10,671 mt), with 
an RHL of 7.55 million lb (3,425 mt). Using the preliminary 2014 RSA 
amount of 3 percent, the scup commercial for 2014 is 21.95 million lb 
(9,955 mt), and the RHLs is 7.03 million lb (3,188 mt). The quota 
allocations for 2014 are preliminary and are subject to reductions if 
there are overages that occur in the 2013 fishing year, as well as any 
adjustments needed after the 2014 RSA projects are awarded. Any 
necessary quota adjustments will be included in a Federal Register 
notice prior to the start of the 2014 fishing year.

                                                              Table 4--Scup Specifications
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Commercial  Recreational
                Year                                              ABC          ACL           ACL       Comm. ACT     Rec. ACT   Comm. Quota      RHL
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012...............................  million lb.............        40.88        31.89          8.99        31.89         8.99        27.91         8.45
                                     mt.....................       18,543       14,464         4,079       14,464        4,079       12,659        3,831
2013...............................  million lb.............        38.71        30.19          8.52        30.19         8.52        23.53         7.55
                                     mt.....................       16,325       13,694         3,863       13,694        3,863       10,671        3,425
2014...............................  million lb.............        35.99        28.07          7.92        28.07         7.92        21.95         7.03
                                     mt.....................       16,325       12,734         3,592       12,734        3,592        9,955        3,188
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Commercial Quotas and RHLs include the 3-percent RSA reduction

    The scup commercial quota is divided into three commercial fishery 
quota periods. Consistent with the quota setting procedures established 
for the FMP, scup overages are determined based upon landings for the 
Winter I

[[Page 76947]]

and Summer 2012 periods, plus any previously unaccounted for overages. 
There are no previous commercial overages applicable to the 2013 scup 
commercial quota; therefore, no adjustment to the 2013 scup 
specifications is required in this final rule. Any overage of the 2012 
Winter II period will be addressed in July 2013, prior to the start of 
the 2013 Winter II fishery. The period quotas, after deducting for RSA, 
are detailed in Tables 5 and 6. Unused Winter I quota may be carried 
over for use in the Winter II period.
    Per the quota accounting procedures in the FMP, after June 30, 
2013, NMFS will compile all available landings data for the 2012 Winter 
II quota period and compare the landings to the 2012 Winter II quota 
period allocation, inclusive of any transfer from the 2012 Winter I 
quota period. Any overages will be determined, and deductions, if 
needed, will be made to the Winter II 2013 allocation and published in 
the Federal Register. Table 5 contains the quota period allocations for 
the 2013 commercial scup fishery.

                                           Table 5--Commercial scup quota allocations for 2013 by quota period
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Initial Quota          Initial Quota less        Adjusted Quota less       Federal Possession
                                                 -------------------------- Overages (through 10/31/      Overages and RSA          Limits (Per Trip)
            Quota Period               Percent                                        2012)          ---------------------------------------------------
                                        Share          lb           mt     --------------------------
                                                                                 lb           mt           lb           mt           lb           mt
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter I...........................        45.11   10,940,583        4,963          N/A          N/A   10,613,157        4,814       50,000       22,680
Summer.............................        38.95    9,446,591        4,285          N/A          N/A    9,163,877        4,156          N/A          N/A
Winter II..........................        15.94    3,865,948        1,754          N/A          N/A    3,750,249        1,701        2,000          907
                                    --------------------------------------------------------------------------------------------------------------------
    Total..........................        100.0   24,253,122       11,001          N/A          N/A   23,527,283       10,671          N/A          N/A
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 total due to rounding.
N/A=Not applicable.

    Table 6 presents the allocations for 2014, by period, with and 
without the commercial portion of the RSA deduction. These period 
allocations for 2014 are preliminary and are subject to change if there 
are overages in the 2013 fishing year, as well as any adjustments 
needed after the 2013 RSA projects are awarded. Any commercial quota 
adjustments from 2013 will be announced in a Federal Register notice 
prior to the start of the 2014 fishing year.

                                     Table 6--Preliminary commercial scup quota allocations for 2014 by quota period
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Initial Quota          Initial Quota less        Adjusted Quota less       Federal Possession
                                                 -------------------------- Overages (through 10/31/      Overages and RSA          Limits (Per Trip)
            Quota Period               Percent                                        2012)          ---------------------------------------------------
                                        Share          lb           mt     --------------------------
                                                                                 lb           mt           lb           mt           lb           mt
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter I...........................        45.11   10,206,495        4,630          N/A          N/A    9,900,300        4,491       50,000       22,680
Summer.............................        38.95    8,812,746        3,997          N/A          N/A    8,548,364        3,877          N/A          N/A
Winter II..........................        15.94    3,606,551        1,636          N/A          N/A    3,498,355        1,587        2,000          907
                                    --------------------------------------------------------------------------------------------------------------------
    Total..........................        100.0   22,625,792       10,263          N/A          N/A   21,947,018        9,955          N/A          N/A
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.

    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 7. 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 7--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 winter II          Increase in initial winter II    Final winter II possession limit
-----------------------------------------------------------------------------------          possession limit            after rollover from winter I to
                                                                                   ------------------------------------             winter II
       lb                kg                      lb                      mt                                            ---------------------------------
                                                                                           lb                kg                lb               kg
--------------------------------------------------------------------------------------------------------------------------------------------------------
         2,000               907                     0-499,999             0-227                 0                 0            2,000              907
         2,000               907               500,000-999,999           227-454             1,500               680            3,500            1,588
         2,000               907           1,000,000-1,499,999           454-680             3,000             1,361            5,000            2,268
         2,000               907           1,500,000-1,999,999           680-907             4,500             2,041            6,500            2,948
         2,000               907           2,000,000-2,500,000         907-1,134             6,000             2,722            8,000            3,629
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 76948]]

Black Sea Bass

    The SSC rejected the OFL estimate provided from the most recent 
black sea bass stock assessment, stating that it was highly uncertain 
and not sufficiently reliable to use as the basis for management 
advice. Therefore, the 2013 ABC for black sea bass is the status quo 
ABC of 4.50 million lb (2,041 mt), and the 2013 ACTs (both commercial 
and recreational) are equal to the respective ACLs.
    The 2013 black sea bass commercial ACL and ACT is 2.13 million lb 
(966 mt), and the recreational ACL and ACT is 2.37 million lb (1,075 
mt). After removing discards and RSA of 111,900 lb (50.8 mt), the 
commercial quota is 1.78 million lb (805 mt) and the RHL is 1.85 
million lb (838 mt). While the ABC is the same as 2012, the ACLs/ACTs 
and quotas are different from 2012 because the updated discard estimate 
is higher than the previous year. Recent data indicate that the 2012 
recreational black sea bass ACL has been exceeded by a significant 
amount. The regulations require that we deduct the amount of landings 
that exceeded the RHL from a single subsequent year's ACT as soon as 
possible. However, NMFS has determined that because the data are 
preliminary and will not be finalized until April 2013, any deduction 
necessary to account for the overage will be applied to the fishing 
year 2014 RHL.
    Consistent with the quota-setting procedures for the FMP, 
commercial black sea bass overages are determined based upon landings 
for the period January-October 2012, plus any previously unaccounted 
for landings. Table 8 details the specifications for the black sea bass 
fishery.

                                                       Table 8--Black Sea Bass 2013 Specifications
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Commercial  Recreational
                Year                                              ABC          ACL           ACL       Comm. ACT     Rec. ACT   Comm. Quota      RHL
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012...............................  million lb.............         4.50         1.98          2.52         1.98         1.86         1.71         1.32
                                     mt.....................        2,041          898         1,143          898          844          774          598
2013...............................  million lb.............         4.50         2.13          2.37         2.13         2.37         1.78         1.85
                                     mt.....................        2,041          966         1,075          966         1075          805          838
--------------------------------------------------------------------------------------------------------------------------------------------------------

Comments and Responses

    NMFS received three comments during the 15-day comment period for 
the November 16, 2012, proposed rule (77 FR 68723).
    Comment 1: One commenter suggested that the quotas should be 
reduced by 50 percent, that RSA was unnecessary, and that the summer 
flounder stock is not actually rebuilt.
    Response: NMFS disagrees. In accordance with the Magnuson-Stevens 
Act, the quotas established through this final rule and the 2011 
determination that summer flounder has been rebuilt are based on the 
best available science. The quotas were recommended by the Council's 
SSC, and the summer flounder stock assessment underwent a rigorous peer 
review through the Northeast Fisheries Science Center's Stock 
Assessment Workshop review process. The RSA program continues to 
provide a mechanism to fund research and compensate vessel owners 
through the sale of fish harvested under the research quota. This 
program provides valuable scientific information and fosters 
cooperative research throughout the Northeast Region.
    Comment 2: One comment addressed the 2012 in-season ``emergency'' 
closure of the recreational black sea bass fishery. The commenter was 
concerned that the recreational industry would not be able to 
economically ``wait a few years'' to access more of the black sea bass 
stock.
    Response: The 2012 in-season closure of the recreational black sea 
bass fishery was a non-discretionary requirement of the black sea bass 
regulations, and was not an emergency rule. The recreational measures 
for 2013 will be published in a subsequent rule in late spring 2013. 
The RHL established through this rule is based on the best available 
science, consistent with the recommendation of the Council's SSC.
    Comment 3: Another commenter expressed concern about the number of 
people affected by the 2012 in-season closure of the recreational black 
sea bass fishery.
    Response: The 2012 in-season closure of the recreational black sea 
bass fishery was a non-discretionary requirement of the black sea bass 
regulations, and the closure at issue in the comment will expire before 
this final rule is effective. The recreational measures for 2013 will 
be published in a subsequent rule in late spring 2013. The RHL 
established through this rule is based on the best available science, 
consistent with the recommendation of the Council's SSC. NMFS 
understands that the 2012 in-season closure may have impacted the 
recreational fishery, but, as noted, NMFS had no discretion but to 
close the fishery in order to protect both the black sea bass species 
as well as preserve the fishery for future harvests.

Changes from the Proposed to Final Specifications Rule

    Other than to specify the final summer flounder state allocations 
after accounting for prior overages and the RSA allocation, no other 
changes were made from the proposed rule.

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 delay of effectiveness 
period for this rule, to ensure that the final specifications are in 
place on January 1, 2013. This action establishes specifications (i.e., 
annual quotas) for the summer flounder, scup, and black sea bass 
fisheries.
    This rule is being issued at the earliest possible date. 
Preparation of the proposed rule was dependent on the submission of the 
EA/IRFA in support of the specifications that is developed by the 
Council. This document was received by NMFS in early October 2012. 
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 16, 2012, with a comment period 
ending December 3, 2012. Publication of the adjusted summer flounder 
quota at the start of the fishing year that begins January 1, 2013, is 
required by the order of Judge Robert Doumar in North Carolina 
Fisheries Association v. Daley.
    However, if the 30-day delay in effectiveness is not waived, there 
will be no quota specifications for the affected

[[Page 76949]]

fisheries on January 1, 2013, which would significantly confuse the 
public and 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 2013. Without 
these specifications in place on January 1, 2013, individual states 
will be unable to set commercial possession and/or trip limits, which 
apportion the catch over the entirety of the calendar year. NMFS will 
be unable to control harvest in any way, as there will be no quotas in 
place for any of the three species until the regulations are effective. 
NMFS will be unable to control harvest or close the fishery, should 
landings exceed the quotas. Moreover, 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 
uncontrolled landings could occur. Disproportionately large harvest 
occurring within the first weeks of 2013 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 2013. 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, 2013. Should this occur, the fishing 
mortality objectives for all three species could be compromised.
    For these reasons, the 30-day delay in effectiveness is contrary to 
the public interest, and NMFS is waiving the requirement.
    These specifications are exempt from the procedures of E.O. 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//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. Under the Small Business 
Administration's regulations implementing the Regulatory Flexibility 
Act, these vessels are considered ``small entities'' if their revenues 
are less than $4 million per year. The Council estimates that the 
proposed 2013-2014 specifications could affect 2,039 vessels that held 
a Federal summer flounder, scup, and/or black sea bass permit in 2011 
(the most recent year of complete permit data). However, the more 
immediate impact of this rule will likely be realized by the 870 
vessels that actively participated in these fisheries (i.e., landed 
these species) in 2011.

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 2013 and 2014, 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 2013-2014 ABC level for all three stocks. NMFS 
considers these recommendations to be consistent with National Standard 
2. Establishing catch levels higher than the SSC ABC recommendations is 
not permitted under the Magnuson-Stevens Act.
    The economic analysis for the 2013-2014 specification assessed the 
impacts for quota alternatives that achieve the aforementioned 
objectives. The no action alternative, wherein no quotas are 
established for 2013 or 2014, 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 
2013 or 2014 would substantially complicate the approved management 
programs for these three species. NMFS is required under the FMP's 
implementing regulations to implement specifications for these 
fisheries on an annual basis, and for up to 3 years. The no action 
alternative would result in no fishing limits for 2013 or 2014, and 
could result in overfishing of the resources and substantially 
compromise the mortality and/or stock rebuilding objectives for each 
species, contrary to laws and regulations.
    The Council analyzed three sets of combined catch limit 
alternatives for the 2013-2014 summer flounder, scup, and

[[Page 76950]]

black sea bass fisheries. Of these, one alternative, labeled 
Alternative 3 for each species, contained the most restrictive options 
(i.e., lowest total landing levels). While the Alternative 3 measures 
would achieve the objectives of the proposed action for each of three 
species, they have the highest potential adverse economic impacts on 
small entities in the form of potential foregone fishing opportunities. 
Alternative 3 was not preferred by the Council because the other 
alternatives considered are expected have lower adverse impacts on 
small entities while achieving the stated objectives of sustaining the 
summer flounder, scup, and black sea bass stocks, consistent with the 
FMP and Magnuson-Stevens Act.
    Through this final rule, NMFS implements the Council's preferred 
ABCs in 2013 for summer flounder (22.34 million lb (10,133 mt)), scup 
(38.71 million lb (17,577 mt)), and black sea bass (4.5 million lb 
(2,041 mt)). This final rule also implements the following ABCs for 
2014: Summer flounder, 22.24 million lb (10,088 mt); and scup, 35.99 
million lb (16,325 mt). This alternative consists of the quota levels 
that pair the lowest economic impacts to small entities and meet the 
required objectives of the FMP and the Magnuson-Stevens Act. The 
respective specifications contained in this final rule for all three 
species were selected because they satisfy NMFS' 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 catch 
limits for all three species all have very low likelihoods of causing 
overfishing to occur in 2013.
    The revenue decreases associated with allocating a portion of 
available catch to the RSA program are expected to be minimal 
(approximately between $300 and $1,000 per vessel), 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 2013 and 2014.

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 26, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2012-31424 Filed 12-28-12; 8:45 am]
BILLING CODE 3510-22-P