Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; 2008 Summer Flounder, Scup, and Black Sea Bass Specifications; Preliminary 2008 Quota Adjustments; 2008 Summer Flounder Quota for Delaware, 74197-74207 [07-6252]
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Federal Register / Vol. 72, No. 249 / Monday, December 31, 2007 / Rules and Regulations
NMFS may determine, once 2008
estimates are complete, that the
retention limit should be adjusted in
order to meet the limit on school BFT
over the 4-year balancing period. NMFS
has the authority either to make
inseason adjustments to the Angling
category quota during the 2008 fishing
year, or, depending on the results of the
LPS data and analyses and the needs of
the fishery, may make necessary
adjustments (such as retention limits,
quotas, and subquotas) in the 2009
fishing year specifications and effort
controls.
Classification
NMFS publishes these final
specifications and effort controls under
the authority of the Magnuson-Stevens
Act and ATCA. The Assistant
Administrator for Fisheries (AA) has
determined that the regulations
contained in this final rule are necessary
to implement the recommendations of
ICCAT and to manage the domestic
Atlantic HMS fisheries, and are
consistent with the Magnuson-Stevens
Act and its National Standards.
This final rule been determined to be
not significant for purposes of Executive
Order 12866.
The Chief Counsel for Regulation of
the Department of Commerce certified
to the Chief Counsel for Advocacy of the
Small Business Administration during
the proposed rule stage that this action
would not have a significant economic
impact on a substantial number of small
entities. The factual basis for the
certification was published in the
proposed rule and is not repeated here.
No comments were received regarding
this certification. As a result, a
regulatory flexibility analysis was not
required and none was prepared.
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C.
1801 et seq.
Dated: December 20, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E7–25256 Filed 12–28–07; 8:45 am]
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BILLING CODE 3510–22–S
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 071030625–7696–02]
RIN 0648–XC84
Fisheries of the Northeastern United
States; Summer Flounder, Scup, and
Black Sea Bass Fisheries; 2008
Summer Flounder, Scup, and Black
Sea Bass Specifications; Preliminary
2008 Quota Adjustments; 2008
Summer Flounder Quota for Delaware
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS issues final
specifications for the 2008 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
landing summer flounder in Delaware
in 2008 due to continued quota
repayment from previous years’
overages.
The actions of this final rule are
necessary to comply with regulations
implementing the Summer Flounder,
Scup, and Black Sea Bass Fishery
Management Plan (FMP), as well as to
ensure compliance with the MagnusonStevens 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 these three
overfished species and ends overfishing
in the summer flounder fishery.
DATES: Effective January 1, 2008,
through December 31, 2008.
ADDRESSES: Copies of the specifications
document, including the Environmental
Assessment (EA), Regulatory Impact
Review (RIR), 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
SUMMARY:
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74197
2115, Federal Building, 300 South
Street, Dover, DE 19901–6790. The
specifications document is also
accessible via the Internet at https://
www.nero.noaa.gov. The Final
Regulatory Flexibility Analysis (FRFA)
consists of the IRFA, public comments
and responses contained in this final
rule, and the summary of impacts and
alternatives contained in this final rule.
Copies of the small entity compliance
guide are available from Patricia A.
Kurkul, Regional Administrator,
Northeast Region, National Marine
Fisheries Service, One Blackburn Drive,
Gloucester, MA 01930–2298.
FOR FURTHER INFORMATION CONTACT:
Michael Ruccio, Fishery Policy Analyst,
(978) 281–9104.
SUPPLEMENTARY INFORMATION:
Background
The summer flounder, scup, and
black sea bass fisheries are managed
cooperatively under the provisions of
the FMP developed by the Mid-Atlantic
Fishery Management Council (Council)
and the Atlantic States Marine Fisheries
Commission (Commission), in
consultation with the New England and
South Atlantic Fishery Management
Councils. The management units
specified in the FMP include summer
flounder (Paralichthys dentatus) in U.S.
waters of the Atlantic Ocean from the
southern border of North Carolina (NC)
northward to the U.S./Canada border,
and scup (Stenotomus chrysops) and
black sea bass (Centropristis striata) in
U.S. waters of the Atlantic Ocean from
35°13.3′ N. lat. (the latitude of Cape
Hatteras Lighthouse, Buxton, NC)
northward to the U.S./Canada border.
The Council prepared the FMP under
the authority of the Magnuson-Stevens
Act, 16 U.S.C. 1801 et seq. Regulations
implementing the FMP appear at 50
CFR part 648, subparts A (general
provisions), G (summer flounder), H
(scup), and I (black sea bass). General
regulations governing U.S. fisheries also
appear at 50 CFR part 600. States
manage summer flounder within 3
nautical miles of their coasts, under the
Commission’s plan for summer
flounder, scup, and black sea bass. The
Federal regulations govern vessels
fishing in the exclusive economic zone
(EEZ), as well as vessels possessing a
Federal fisheries permit, regardless of
where they fish.
The regulations 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,
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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 (i.e., 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
2008 specifications for these fisheries
was provided in the proposed
specifications (72 FR 64023; November
14, 2007). That information is not
repeated here.
NMFS will establish the 2008
recreational management measures for
summer flounder, scup, and black sea
bass by publishing proposed and final
rules in the Federal Register at a later
date, following receipt of the Council’s
recommendations as specified in the
FMP.
Summer Flounder
The FMP requires that annual fishing
levels (i.e., Total Allowable Landings or
TAL) must achieve at least a 50-percent
probability of constraining harvests to
an F rate that produces the maximum
yield per recruit, or FMAX. The best
available scientific information from the
2007 updated summer flounder
assessment conducted by the Southern
Demersal Working Group (SDWG),
using the methods and models
recommended for continued use by the
NMFS Office of Science and Technology
during its 2006 peer review, indicates
that FMAX for 2008 is 0.28. However, the
best available scientific information also
indicates that, for 2008, a TAL set lower
than the FMAX level is needed to ensure
that the rebuilding objective of 197.2
million lb (89,448 mt) spawning stock
biomass (SSB) can be attained by the
rebuilding period end date of January 1,
2013. For 2008, the FTARGET=FREBUILD at
0.199.
The TAL associated with the target F
(i.e., FREBUILD for 2008) is allocated 60
percent to the commercial sector and 40
percent to the recreational sector by the
FMP. 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
2008.
This final rule implements the
specifications contained in the
November 14, 2007, proposed rule—a
summer flounder TAL of 15.77 million
lb (7,153 mt) for 2008. This TAL has a
75-percent probability of achieving the
FREBUILD target of 0.199, and a 99percent probability that the overfishing
threshold, FMAX=0.28, will not be
exceeded in 2008.
Three research projects that would
utilize the full summer flounder
research set-aside (RSA) of 233,192 lb
(106 mt) have been conditionally
approved by NMFS and are currently
awaiting notice of award. After
deducting this RSA, the TAL is divided
into a commercial quota of 9,322,085 lb
(4,228 mt) and a recreational harvest
limit of 6,214,723 lb (2,819 mt). If a
proposed 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 (67 FR
6877, February 14, 2002), summer
flounder overages are determined based
upon landings for the period January–
October 2007, plus any previously
unaccounted for overages from January–
December 2006. Table 1 summarizes, for
each state, the commercial summer
flounder percent share, the 2008
commercial quota (both initial and less
the RSA), the quota overages as
described above, and the resulting final
adjusted 2008 commercial quota less the
RSA.
TABLE 1.—FINAL STATE-BY-STATE COMMERCIAL SUMMER FLOUNDER ALLOCATIONS FOR 2008
Initial quota
Percent
share
State
ME ..........................
NH ..........................
MA ..........................
RI ............................
CT ...........................
NY ..........................
NJ ...........................
DE ..........................
MD ..........................
VA ...........................
NC ..........................
Total 2 ..............
2007 Quota overages
(through 10/31/07) 1
lb
kg
lb
kg
4,500
44
645,352
1,483,924
213,565
723,558
1,582,519
1,683
192,940
2,016,992
2,596,925
2,041
20
292,732
673,108
96,873
328,206
717,830
764
87,517
914,907
1,177,965
4,434
43
635,809
1,461,981
210,407
712,859
1,559,118
1,658
190,087
1,987,166
2,558,524
9,462,001
0.04756
0.00046
6.82046
15.68298
2.25708
7.64699
16.72499
0.01779
2.03910
21.31676
27.44584
100.00
Initial quota
less RSA
4,291,964
9,322,086
lb
kg
2,011
19
288,403
663,154
95,441
323,353
707,216
752
86,223
901,379
1,160,547
0
0
20,591
0
0
15,375
0
55,556
0
0
0
4,228,498
91,522
Adjusted quota
less RSA
lb
kg
0
0
9,340
0
0
6,974
0
25,200
0
0
0
4,434
43
615,218
1,461,981
210,407
697,484
1,559,118
¥53,898
190,087
1,987,166
2,558,524
2,011
19
279,063
663,154
95,441
316,379
707,216
¥24,448
86,223
901,379
1,160,547
41,514
9,284,462
4,211,431
1 2007
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quota overage is determined through comparison of landings for January through October 2007, plus any landings in 2006 in excess of
the 2006 quota (that were not previously addressed in the 2007 specifications), with the 2007 emergency rule quota for each state (72 FR 2458,
January 19, 2007). For Delaware, includes continued repayment of overharvest from 2007 and previous years.
2 Total quota is the sum of all states having allocation. A state with a negative number has a 2008 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
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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
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summer flounder specifications because
NMFS does not have authority to
establish such subcategories.
Delaware Summer Flounder Closure
Table 1 indicates that, for Delaware,
the amount of the 2007 summer
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flounder quota overage (inclusive of
overharvest from previous years) is
greater than the amount of commercial
quota allocated to Delaware for 2008. As
a result, there is no quota available for
2008 in Delaware. The regulations at
§ 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 (Regional Administrator),
has determined no longer has
commercial quota available for harvest.
Therefore, effective January 1, 2008,
landings of summer flounder in
Delaware by vessels holding commercial
Federal summer flounder fisheries
permits are prohibited for the 2008
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 2008 calendar year,
unless additional quota becomes
available through a transfer, as
mentioned above.
Scup
The 2008 fishing season is year 1 of
the 7-year, constant F strategy scup
rebuilding plan implemented by
Amendment 14 to the FMP (72 FR
40077; July 23, 2007). The target
exploitation rate for scup in 2008 is 9
percent, which will result in an F=0.10,
as called for under the rebuilding plan.
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
2008.
This final rule implements the
specifications contained in the
November 14, 2007, proposed rule: A
9.9-million-lb (4,491-mt) scup TAC and
a 7.34-million-lb (3,329-mt) scup TAL.
The TAC is divided into the commercial
(78 percent) and recreational (22
percent) allocations, in accordance with
the FMP; then the respective discard
estimates are subtracted to yield the
preliminary TAL. After deducting
214,000 (97 mt) of RSA for the three
approved research projects, the initial
TAL is a commercial quota of 5,248,000
lb (2,381 mt) and a recreational harvest
limit of 1,830,920 lb (830 mt). If a
proposed 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 (67 FR 6877, February 14, 2002),
scup overages are determined based
upon landings for the Winter I and
Summer 2007 periods, plus any
previously unaccounted for landings
from January–December 2006. Table 2
presents the final 2008 commercial scup
quota for each period and the reported
2007 landings for the 2007 Winter I and
Summer periods. There was no overage
of the Winter I quota; however, an
overage of 624,876 lb (283 mt) occurred
during the Summer quota period. As a
result, the 2008 Summer period quota is
reduced by this amount.
On July 24, 2007, (72 FR 40263)
NMFS announced a transfer of
unharvested quota from the Winter I to
the Winter II 2007 quota period. Per the
quota accounting procedures, after June
30, 2008, NMFS will compile all
available landings data for the 2007
Winter II quota period and compare the
landings to the 2007 Winter II quota
period allocation, as adjusted by the
aforementioned transfer. Any overages
will be determined and deductions, if
needed, will be made to the Winter II
2008 allocation and published in the
Federal Register.
TABLE 2.—SCUP PRELIMINARY 2007 COMMERCIAL LANDINGS BY QUOTA PERIOD
2007 Quota
Reported 2007
Landings through 10/31/07
Quota period
lb
mt
lb
Preliminary Overages as
of 10/31/07
mt
lb
mt
Winter I .............................................................................
Summer ............................................................................
Winter II ............................................................................
4,012,895
3,464,914
1,417,991
1,820
1,572
643
3,386,505
4,089,790
N/A
1,536
1,855
N/A
0
624,876
N/A
0
283
N/A
Total ..........................................................................
8,895,800
4,035
7,476,295
3,391
N/A
N/A
N/A = Not applicable.
per-trip possession limit will be reduced
to 1,000 lb (454 kg) when 80 percent of
the commercial quota allocated to that
period is projected to be harvested.
final rule continues the status quo
Winter I period (January–April) per-trip
possession limit of 30,000 lb (13.6 mt),
and a Winter II period (November–
December) initial per-trip possession
limit of 2,000 lb (907 kg). The Winter I
Table 3 presents the commercial scup
percent share, 2008 TAC, projected
discards, 2008 initial quota (with and
without the RSA deduction), overage
deductions (as necessary), and initial
possession limits, by quota period. This
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TABLE 3.—INITIAL COMMERCIAL SCUP QUOTA ALLOCATIONS FOR 2008 BY QUOTA PERIOD
Percent
share
Quota
period
Total allowable
catch
lb
mt
Discards
lb
Initial quota
mt
lb
mt
Initial quota
less overages
(through 10/31/
2007) 1
lb
Winter I ..........................
Summer .........................
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45.11
38.95
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3,483,394
3,007,719
1,580
1,364
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880,270
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462
399
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2,463,908
2,127,449
Sfmt 4700
1,118
965
N/A
1,502,573
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Adjusted quota
less overages and
RSA
lb
mt
lb
kg
2,367,373
1,419,220
1,074
644
30,000
N/A
13,608
N/A
mt
N/A
682
Possession limits
(Per trip) 2
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TABLE 3.—INITIAL COMMERCIAL SCUP QUOTA ALLOCATIONS FOR 2008 BY QUOTA PERIOD—Continued
Percent
share
Quota
period
Total allowable
catch
lb
Discards
lb
mt
Initial quota
mt
lb
mt
Initial quota
less overages
(through 10/31/
2007) 1
lb
Winter II .........................
Total 3 .....................
15.94
100.0
Adjusted quota
less overages and
RSA
lb
mt
Possession limits
(Per trip) 2
mt
lb
kg
1,230,887
558
360,244
163
870,643
395
N/A
N/A
836,531
379
2,000
907
7,722,000
3,503
2,260,000
1,025
5,462,000
2,478
N/A
N/A
4,623,124
2,097
N/A
N/A
1 An
overage of 624,876 lb (283 mt) occurred during the 2007 Summer quota period
2 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.
3 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 § 648.120(a)(3), this final
rule maintains the Winter II possession
limit-to-rollover amount ratios that were
in place for the 2007 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 a maximum
possession limit of 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 Winter II
lb
2,000
2,000
2,000
2,000
2,000
kg
........................................................
........................................................
........................................................
........................................................
........................................................
907
907
907
907
907
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Black Sea Bass
For 2008, the target exploitation rate
for black sea bass is 25 percent. The
FMP specifies that the TAL associated
with a given exploitation rate be
allocated 49 percent to the commercial
sector and 51 percent to the recreational
sector. The recreational harvest limit is
allocated on a coastwide basis.
Recreational measures will be the
subject of a separate rulemaking early in
2008.
This final rule implements the
specifications contained in the
November 14, 2007, proposed rule: A
4.22-million-lb (1,194-mt) black sea bass
TAL. After deducting 85,790 lb (39 mt)
of RSA for the three approved research
projects, the TAL is divided into a
commercial quota of 2,025,763 lb (919
mt) and a recreational harvest limit of
2,108,447 lb (9569 mt). If a proposed
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
period January–September 2007, plus
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lb
Increase in
initial Winter II
possession limit
mt
0–499,999
500,000–999,999
1,000,000–1,499,999
1,500,000–1,999,999
2,000,000–2,500,000
0–227
227–454
454–680
680–907
907–1,134
any previously unaccounted for
landings from January–December 2006.
There were no overages for either
period; thus, no overage deduction
adjustment to the 2008 commercial
quota is necessary.
Comments and Responses
NMFS received 25,443 comments
during the comment period for the
November 14, 2007, proposed rule. Of
these, 20,159 comments were received
through the prescribed methods
outlined in the proposed rule:
Electronic submission via the Federal
eRulemaking Portal (https://
www.regulations.gov); fax; standard
mail; and hand delivery. An additional
5,284 were sent via e-mail to the
Regional Administrator. Though these
comments were not supplied through
the prescribed methods, they were form
letters that make the same points as
other comments received through the
established public comment system and
are therefore addressed in this final
rule’s responses to comments. In
addition, one comment letter contained
over 14,000 signatories. This letter was
treated as 14,000+ comments for the
purposes of the total comments received
enumeration listed above.
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lb
kg
0
1,500
3,000
4,500
6,000
0
680
1,361
2,041
2,722
Final Winter II
possession limit
after rollover from
Winter I to Winter II
lb
2,000
3,500
5,000
6,500
8,000
kg
907
1,588
2,268
2,948
3,629
Comments were received from the
representatives of several conservation
groups, recreational and commercial
fishery associations and advocacy
groups, and private citizens. The vast
majority (99 percent) of comments
received were from individual members
of various conservation groups and from
a conservation-based recreational
fishery advocacy group who urged
NMFS to adopt a summer flounder TAL
lower than the 15.77-million-lb (7,153mt) implemented by this final rule.
Only comments that were applicable
to the proposed 2008 specifications,
including the analyses used to support
these specifications, are addressed in
this preamble. The majority of the
comments submitted contained the
same or similar language; therefore, the
significant issues and concerns have
been summarized and responded to
here.
Comment 1: Many commenters
suggested that a 15.77-million-lb (7,153mt) summer flounder TAL for 2008 has
less than the required regulatory and
2000 Federal court-ordered 1 50-percent
probability of constraining fishing
mortality below the overfishing level
1 Natural Resources Defense Council v. Daley
Civil NO. 1:99 CV00221(JLG).
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(FMAX = 0.28) in 2008. These
commenters advocated for a lower 2008
TAL and suggested that the TAL be
established anywhere from a low of 8.0
million lb (3,629 mt) to a high of 12.9
million lb (5,851 mt). The majority of
commenters advocating for a lower TAL
indicated that NMFS should implement
the 11.64-million-lb (5,280-mt) TAL, on
the low end of the Summer Flounder
Monitoring Committee’s (Monitoring
Committee) recommended TAL range.
Response: NMFS disagrees that the
proposed TAL, which is implemented
through this final rule, fails to meet the
regulatory and legal requirements to
prevent overfishing. Analysis conducted
by the Northeast Fisheries Science
Center (NEFSC) indicates that a 15.77million-lb (7,153-mt) TAL has a 99percent probability of not exceeding the
overfishing level (FMAX = 0.28) in 2008.
Responses to comments 2 through 7
contain additional justification for the
selection of the TAL implemented by
this final rule.
Comment 2: Many commenters
indicated that they believe the 15.77million-lb (7,153-mt) summer flounder
TAL has less than a 50-percent
probability of meeting the FREBUILD
target recommended by the Monitoring
Committee (FREBUILD adjusted = 0.143)
and is, therefore, in violation of the
summer flounder regulations and
Federal court order.
Response: Contrary to the
interpretation of the commenters, the
specific regulatory and Federal courtordered requirement for probabilities of
success regarding the annual TAL is
limited to providing at least a 50percent probability of not exceeding the
overfishing threshold
(FMAX=FMSY=0.28). There is no specific
regulatory or statutory requirement that
NMFS must meet regarding probabilities
for success relative to FREBUILD. The
Council and NMFS may choose from
among various alternative rebuilding
strategies. Analysis provided by the
Monitoring Committee indicates that a
15.77-million-lb (7,153-mt) TAL has a
75-percent probability of not exceeding
FREBUILD=0.199, which is lower than
FMAX=0.28.
Comment 3: Several commenters
relayed that they expected a 15.77million-lb (7,153-mt) summer flounder
TAL in 2008 to prevent sufficient
continued stock growth and will
prevent the rebuilding target of 197.2
million lb (89,448 mt) SSB from being
attained by the January 1, 2013,
rebuilding period end date, as required
by the Magnuson-Stevens Act.
Response: Stock projections using a
15.77-million-lb (7,153-mt) summer
flounder TAL, based on FREBUILD=0.199
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in 2008, indicate that the stock can
achieve the rebuilding target biomass
level by January 1, 2013. This TAL and
F in 2008 provide a 75-percent
probability that the rebuilding target
will be met within the required time
frame. The responses to comments 5
and 6 provide additional information
germane to stock growth and rebuilding.
Comment 4: Many commenters
asserted that overfishing has occurred in
the summer flounder fishery since 1982
and that a 15.77-million-lb (7,153-mt)
summer flounder TAL will not end
overfishing in 2008.
Response: NMFS reiterates that a
15.77-million-lb (7,153-mt) summer
flounder TAL is projected to have a 99percent probability of constraining
harvest below the overfishing level in
2008. In addition, the first definition of
overfishing for summer flounder was
not established until the adoption of
Amendment 2 to the FMP, which
occurred in 1991. NMFS acknowledges
that exploitation on the summer
flounder stock was high, prior to the
establishment of an overfishing
definition, but overfishing was not
assessed relative to an established
threshold. The Sustainable Fisheries Act
of 1996 established a requirement for
rebuilding periods for U.S. fisheries that
were determined to be overfished.
Overfishing has occurred in the summer
flounder fishery each year of the
rebuilding period for which complete
data are available, 2000–2006.
Evaluation of the 2007 fishery
performance will not be available until
mid-2008, after the commercial and
recreational fishery data has been
compiled and audited.
The level of overfishing has decreased
substantially over the course of the
rebuilding period, even with the
retrospective pattern that has resulted in
estimated F’s increasing for previous
years when more recent data are added
to the assessment model. Until 2006, the
TAL was set at the FMAX level with only
a 50-percent probability for success in
all but one year (i.e., the 2004 fishing
year, for which the TAL was set at the
FMAX level with a 75-percent
probability for success). For the 2007
fishery, the TAL was established to
achieve a lower FREBUILD level, with a
75-percent probability of success of
achieving that lower target. Over the
course of the rebuilding period, NMFS
and the Council have been successful at
substantially reducing fishing mortality.
NMFS expects, based on the analysis of
the 2008 TAL and the associated 99percent probability of success, that
overfishing will not occur in 2008.
NMFS is also prepared to further
constrain or close the recreational
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fishery in Federal waters of the EEZ
during or prior to the fishing season, if
needed, to further insure that 2008
mortality objectives for the summer
flounder fishery are met and to ensure
that overfishing does not occur.
Comment 5: Some commenters
expressed concern that the 15.77million-lb (7,153 mt) summer flounder
TAL fails to compensate directly for the
retrospective pattern in the stock
assessment modeling approach and does
not provide for an adequate buffer
between the maximum sustainable yield
and overfishing level in compensation
for the model uncertainty.
Response: The advice of the SDWG in
regards to the retrospective pattern for
the 2007 stock assessment update was,
‘‘Given the persistent retrospective
underestimation of fishing mortality in
the [stock] assessment, [fishery]
managers should consider adopting a
lower TAL for 2008 than indicated by
the median projection results to reduce
the risk that overfishing will occur.’’
Similarly, the advice of the 2006
biological reference point peer review
was that, ‘‘The [peer review] Panel does
not find that it is necessary to make an
explicit adjustment for the retrospective
pattern in the VPA [Virtual Population
Analysis; stock assessment model]
results. The pattern diminishes in the
last year [2005], its cause is not clear,
and past patterns in the opposite
direction have also diminished after a
few years.’’ The median projection
result for 2008 is the TAL resulting from
a 50-percent probability of achieving
FMAX=0.28 and would yield a TAL of
23.8 million lb (10,807 mt). NMFS has
followed the advice from the
independent stock assessment review
body and recent peer review and set the
TAL for 2008 at the lower
FREBUILD=0.199 level, with a further
reduction by using the 25th percentile
projection (i.e., a 75-percent probability
of achieving the FREBUILD). This is the
most risk-averse approach yet applied to
setting a summer flounder TAL since
the rebuilding period began in 2000.
NMFS acknowledges that the 2008
TAL does not explicitly adjust for the
retrospective pattern as was
recommended by the Monitoring
Committee. However, the TAL
implemented by this rule is consistent
with the advice of the independent
stock assessment body and the SDWG,
and reduces the TAL from the minimum
level required by the regulations to
lower the risk that overfishing will
occur in 2008.
The TAL provides for high
probabilities of success relative to both
the overfishing threshold (FMAX) and the
necessary rebuilding F (FREBUILD) to
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ensure continued stock rebuilding.
Similarly, the TAL does provide a
precautionary approach by employing
the FREBUILD rather than the FMAX
level, and by utilizing a probability
higher than the 50-percent required, at
99-percent, of not exceeding the
overfishing threshold (FMAX). This TAL
has been reduced 33.7 percent from the
median projection (i.e., 50-percent
probability of success) FMSY=FMAX level
to compensate for uncertainty.
Comment 6: The majority of the
commenters suggested that
implementing a TAL higher than the
Monitoring Committee’s recommended
TAL range is contrary to scientific
advice. These commenters asserted that
this is in violation of the reauthorized
Magnuson-Stevens Act that the Council
may not set annual catch limits higher
that the recommendations of the
Council’s Scientific and Statistical
Committee (SSC), ignores the best
available science as required by
National Standard 2 of the MagnusonStevens Act, and is inconsistent with
public hearing documents for proposed
National Standard 1 guidelines.
Response: All of the TAL options
evaluated by the Monitoring Committee,
including the 15.77-million-lb (7,153mt) TAL implemented by this final rule,
were derived using the most recent
stock assessment update provided by
the SDWG. The SDWG utilized the
modeling approaches and methods
recommended for continued use by the
NMFS Office of Science and Technology
in its 2006 peer review of the summer
flounder biological reference points.
The data utilized in the 2007 SDWG
update are the most recent, best
available, fishery-independent,
recreational, and commercial fisherydependent information and, as such, are
consistent with National Standard 2 and
constitute the best available scientific
information. The selection of a TAL
from among those options developed by
the Monitoring Committee represents a
policy choice for the Council and
NMFS. NMFS and the Council
recognize that TALs within the
Monitoring Committee’s recommended
range would be more risk averse than
the TAL implemented by this rule;
however, NMFS is confident that the
15.77-million-lb (7,513-mt) TAL is
sufficiently risk averse to ensure that all
the regulatory and statutory
requirements pertaining to annual TALs
and rebuilding are met while somewhat
mitigating the economic impacts
associated with a reduction in harvest
level (see responses to comments 1
through 7 for additional information).
The FMP’s implementing regulations
specify that the Monitoring Committee
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shall recommend fishing levels that
produce the maximum yield per recruit
(FMAX) with at least a 50-percent
probability of success. There is no
regulatory requirement that the Council
adopt the recommendations of the
Monitoring Committee, nor is the
Monitoring Committee explicitly
required to forward recommendations to
achieve rebuilding or attain alternate F
targets, other than those that would
yield at least a 50-percent probability of
constraining F at or below the
overfishing level.
The reauthorized Magnuson-Stevens
Act specifies that the Council’s SSC
shall provide ongoing scientific advice
to the Council for, among other things,
annual catch levels, ending overfishing,
and achieving rebuilding targets. The
Council’s SSC did not review the
updated 2007 assessment, nor did it
make recommendations to the Council
regarding the 2008 summer flounder
TAL. NMFS has encouraged the Council
to modify its operating procedures so
that SSC review is incorporated into the
annual specification setting process;
however, to date this has not been done.
There is no statutory requirement that
NMFS only implement
recommendations that have been vetted
through the Council’s SSC.
The Magnuson-Stevens
Reauthorization Act was signed into law
in January 2007. Development and
implementation of guidance for several
changes in the Act are in various stages
of development. Guidance from the
Secretary of Commerce, via NMFS, to
Councils on SSC use is expected in the
near-term. In the interim, the Council
has developed internal guidance that
relies on Monitoring Committee
recommendations for specification
setting, such that overfishing does not
occur. The Annual Catch Limit (ACL)
provisions of the Magnuson-Stevens
Reauthorization Act are not required to
be in place until 2010 or 2011,
dependent on the status of the stock in
question. The Monitoring Committee,
while composed of scientists and
individuals with stock assessment
expertise, is not the same as the
Council’s SSC and, therefore, neither
the Council nor NMFS is under any
statutory requirement to accept its
recommendations when other
alternatives are available that also
satisfy the regulatory and statutory
requirements for annual summer
flounder TALs.
NMFS has not yet published a
proposed rule containing guidance for
the application of National Standard 1
under the reauthorized MagnusonStevens Act. While the public hearing
document supplied in advance of the
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proposed rule was provided to form the
basis of discussions with the public,
final guidance has yet to be developed
and may differ from the hearing
document and/or proposed rule, when
published in the Federal Register. The
public will have opportunity to provide
comment during the proposed rule
comment period, once a proposed rule
is published. The response to comment
5 contains information on the level of
precaution associated with the 15.77million-lb (7,153-mt) TAL implemented
by this final rule.
As previously outlined, NMFS has a
regulatory obligation to satisfy when
implementing an annual summer
flounder TAL (i.e., by implementing a
TAL with at least a 50-percent
probability that overfishing will not
occur). For 2008, both the Monitoring
Committee and Council’s
recommendations satisfy this
requirement. NMFS must use the best
available scientific information,
consistent with National Standard 2.
The TAL implemented by this final rule
does so, as outlined previously in this
response and in the response to
comment 5. NMFS must also ensure that
the TAL provides a reasonable
probability for continued stock
rebuilding so that the stock is rebuilt no
later than January 1, 2013; but is under
no legal or regulatory requirement to
adopt any particular rebuilding strategy
as long as it complies with the
requirements of section 304(e) of the
Magnuson-Stevens Act. As long as the
TAL satisfies these requirements, the
selection of one TAL over another is a
policy choice for the Council and the
agency. For 2008, NMFS agrees with the
Council that a TAL of 15.77-million-lb
(7,153-mt) satisfies all of these
performance metrics while mitigating
some of the economic impacts
associated with the lower TAL options
and finds no legal or regulatory
impediment to prevent implementation
of the Council’s recommendation.
The process for setting TALs is
performed annually. Each year, the
performance of the previous year’s TAL
and F target are evaluated along with
updates to the stock status and the
projected TALs and F targets needed in
the remaining rebuilding years (e.g.,
2009–2012) to ensure the rebuilding
target is met. In any given year,
adjustments may be needed to the
projections utilized in the previous
year’s assessments to ensure that the
regulatory and statutory rebuilding
requirements continue to be met. This
was the case for 2008, in which a TAL
lower than what was projected in 2007
is needed to ensure continued
rebuilding. Implementation of the 15.77-
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million-lb (7,153-mt) TAL for 2008 does
not lock the rebuilding trajectory into an
unadjustable course of action for the
remainder of the rebuilding period.
While NMFS is not implementing the
specific recommendations of the
Monitoring Committee, the 15.77million-lb (7,153-mt) TAL is consistent
with the recommendations of the SDWG
recommendation to use a TAL lower
than the median projection (i.e., 50percent probability) to minimize the
possibility that overfishing will occur.
Comment 7: Some commenters
advocating for a lower 2008 TAL
expressed concern that the approach
taken by NMFS for 2008 is for a shortterm gain with long-term negative stock
implications for the remainder of the
rebuilding period.
Response: NMFS disagrees that the
TAL implemented by this final rule
would have negative stock implications
for the remainder of the rebuilding
period. There is no evidence that the
15.77-million-lb (7,153-mt) TAL would
adversely affect the summer flounder
stock. Under all the scenarios presented
by the Monitoring Committee and
evaluated by the Council, the stock is
expected to continue to increase toward,
and attain, the rebuilding target within
the rebuilding period. The distinction
among the alternative TALs considered
has nothing to do with the potential
adverse impacts to the stock, but rather
on the probability of achieving a
specific rebuilding trajectory. NMFS is
confident that the TAL implemented by
this rule will prevent overfishing and
enable the stock to continue rebuilding.
Comment 8: Some commenters
advocating for a higher 2008 TAL stated
that the summer flounder stock is at a
historic high, healthy, and does not
need further quota reductions in 2008.
In addition, they stated that summer
flounder biomass as high as the biomass
target has never been seen before, and
current stock conditions are the highest
in 25 years.
Response: NMFS acknowledges that
the summer flounder biomass has been
at high levels in recent years, peaking in
2005 at the highest level in the 40-year
NEFSC trawl survey time series;
however, stock size decreased from the
2005 to 2006 stock assessment and the
biomass target has not yet been
achieved. Additional harvest reductions
are necessary in 2008 to continue stock
growth toward the rebuilding target
biomass level. Projections indicate that
the TAL implemented by this final rule
will provide for sufficient stock growth
in 2008 to maintain a trajectory
sufficient to attain the rebuilding target
no later than January 1, 2013. Based on
the accepted and frequently peer-
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reviewed stock assessment model, the
full potential growth of the stock has yet
to be realized. None of the peerreviewed science indicates that the
rebuilding target cannot be attained
within the rebuilding period or that the
biomass target is incorrect.
Comment 9: Some commenters who
felt the 2008 TAL was too low stated
that they believe the summer flounder
assessment is flawed and has not been
critically peer reviewed by individuals
outside of NMFS. The commenters
suggested that the SSC and National
Academies of Science should review the
modeling methods and rebuilding
target.
Response: NMFS disagrees. The
statement that the summer flounder
assessment has not been critically peer
reviewed by persons from outside the
agency is not true. The summer flounder
stock assessment has been
independently reviewed by scientists
from outside NMFS twice in the
rebuilding period: In 2002 as part of the
NEFSC’s Stock Assessment Review
Committee (SARC) 35, and again in
2005 during SARC 41. In these reviews,
a panel of independent stock assessment
experts, provided by the Center for
Independent Experts, critically
reviewed the assessment methodology
and data. While recommendations have
been made to develop additional
modeling approaches, these 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.
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 was
based on the best possible scientific
information available and used the best
possible methodology. The review
panelists were scientists with
recognized stock assessment expertise
who have not 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 and have been utilized by the
SDWG in updating the assessment used
to set the 2008 TAL.
NMFS agrees that the SSC should be
involved in the Council’s annual TAL
recommendation process as a means to
provide independent scientific advice
on annual catch limits, consistent with
the reauthorized Magnuson-Stevens Act.
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74203
A benchmark assessment, including
peer review by independent stock
assessment experts from the Center for
Independent Experts, is scheduled to
occur in 2008. The results of the
benchmark assessment are expected to
be made available for the 2009
specification setting process that will
begin with the Council’s August 2008,
meeting. NMFS does not find an
additional peer review by the National
Academies of Science to be necessary in
view of the multiple reviews conducted
on the summer flounder assessment
during the rebuilding period.
Comment 10: Most of the commenters
favoring a higher 2008 summer flounder
TAL expressed concerns about social
and economic impacts, stating that
continued reductions to the TAL in
2008 will have severe economic impacts
to both commercial and recreational
fishery participants, as well as support
businesses (e.g., bait and tackle shops,
waterfront hotels, and marinas), many of
whom the commenters believe are likely
to go out of business within the next
year.
Response: NMFS acknowledges that
there are economic impacts associated
with reductions in the TAL from one
year to the next and that continual
decreases have a cumulative effect on
fishery participants and associated
businesses. A full discussion of the
economic impacts expected to result
from the 2008 TAL are contained in the
EA/RIR/IRFA/specifications document
prepared by the Council (see
ADDRESSES) and summarized in the
IRFA contained in the proposed rule (72
FR 64023; November 14, 2007), and is
not repeated here. NMFS has a
regulatory obligation to ensure that the
TAL implemented has at least a 50percent probability of not exceeding the
overfishing threshold (FMAX), and a
statutory obligation to ensure that the
summer flounder stock is rebuilt to 197
million lb (89,411 mt) no later than
January 1, 2013. The 15.77-million-lb
(7,153-mt) TAL implemented by this
rule satisfies these requirements. The
TAL implemented is less restrictive
than the Monitoring Committee’s
recommended range for 2008, which
would have had higher economic
impacts. Additional discussion of the
steps taken to minimize, to the extent
practicable, the economic impacts on
small entities (i.e., Federal permit
holders) is outlined in the FRFA,
contained in the Classification section
of this final rule.
Although this final rule does not
directly regulate fishing support
industries, NMFS acknowledges that
potential reductions in fishing effort and
associated expenditures may have
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indirect impacts on hotels, restaurants,
fishing gear and bait shops, and other
associated businesses. Sufficient data
are not available to enumerate or
characterize the impacts of the 2008
TAL on these businesses.
Comment 11: One commenter
believed commercial fisheries that
degrade habitat and discard summer
flounder are the cause of the stalled
stock rebuilding.
Response: NMFS and the Council
acknowledged in Amendment 13 to the
FMP that mobile bottom-tending and
stationary fishing gear have the
potential to impact adversely essential
fish habitat (EFH). Amendment 13
included alternatives that minimize, to
the extent practicable, adverse impacts
on EFH. Given that the scope of the
specifications, which include the
summer flounder TAL, is narrow by
operation of the regulations and the
TAL is consistent with the regulations
implementing the FMP, the effects of
commercial fishing on EFH are not
required to be re-evaluated by the
Council, and no new alternatives to
minimize impacts were presented in its
analysis of the 2008 specifications.
Discard estimates from both
commercial and recreational fisheries
are included in the annual stock
assessment update that was utilized to
derive the 2008 TAL; therefore, discard
effects on stock growth are incorporated
into the annual projections of mortality
incurred by the summer flounder stock.
Comment 12: Many of those favoring
a higher 2008 summer flounder TAL
made statements to the effect that the
rigid rebuilding timeline imposed by the
Magnuson-Stevens Act is not based on
science and the rebuilding target is
unrealistic. One commenter also stated
that the status of the summer flounder
stock is not adequately reflected by the
TAL options considered for 2008.
Response: NMFS is obligated to meet
its statutory mandate to rebuild the
summer flounder stock no later than the
extended rebuilding deadline of January
1, 2013. While the summer flounder
stock has increased in size since the
rebuilding period began in 2000, it is
not yet rebuilt. Multiple peer reviews of
the summer flounder stock assessment
and biological reference points have
upheld that the rebuilding target is
realistic and that it can be attained
within the rebuilding period (see
responses to comments 6, 8, and 9 for
more information). The 2008 TAL
implemented by this final rule was
derived utilizing the same methods and
data which have been previously peer
reviewed and recommended for
continued use. The 15.77-million-lb
(5,153 mt) TAL is a reduction from the
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maximum amount permissible under
the regulations to ensure continued
stock rebuilding and to end overfishing.
NMFS acknowledges that the summer
flounder stock has been at high levels in
recent years (see response to comment
8) and has improved since the beginning
of the rebuilding period. However,
overfishing in the summer flounder
fishery continued through 2006, the
stock is overfished, and it has yet to
reach its maximum potential.
Comment 13: One commenter
commented that the proposed rule has
no discussion on the existing summer
flounder allocation between commercial
and recreational fisheries.
Response: The annual specification
process in the regulations does not
permit the Council to evaluate or change
the allocation between the commercial
and recreational summer flounder
fisheries. The Council has identified the
commercial/recreational allocation as a
topic for further development as part of
Amendment 15 to the FMP.
Development of Amendment 15 is
expected to continue during 2008, with
tentative completion scheduled for late
2010/early 2011.
Comment 14: One commenter stated
that the Secretary of Commerce has an
obligation to ensure that regulations
implementing the rebuilding plan for
summer flounder allocate the
restrictions equitably and fairly and that
there is no reference to this in the
proposed rule for the public to evaluate
if such issues are being addressed by the
rulemaking.
Response: The Magnuson-Stevens Act
section 303(a)(14) criteria referenced by
the commenter are not required to be
addressed in the annual specification
setting. The section in question is in
reference to FMP requirements and, as
such, the criteria therein were addressed
in Amendment 12 to the FMP, which
established the summer flounder
rebuilding program.
Comment 15: One commenter
opposed the scup TAL, indicating that
scup values from the spring survey
index are not compelling for
recommending a reduced quota and that
the discard estimates were
overestimated.
Response: The spring SSB 3-year
average index value remains the best
available information for assessing the
status of the scup stock. The reduction
in quota is not only the result of a
reduced 2007 spring survey value,
which reduced the 3-year average value,
but is the result of implementing the
scup stock rebuilding program
contained in Amendment 14 to the
FMP. The rebuilding plan requires a
constant F of 0.10 for the years 2008–
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2012. The discard estimates were
generated using the NEFSC observer
program and dealer data and the
geometirc mean discards-to-landings
ratio. Recreational discards were
estimated using the Marine Recreational
Fisheries Statistical Survey (MRFSS).
While both are produced annually and
have not for this year been externally
peer reviewed, the estimates were
reviewed by the Scup Monitoring
Committee and constitute the best
scientific information available.
Comment 16: One commenter
opposed the black sea bass TAL for
2008, stating that the 3-year average
survey index is not appropriate for
determining exploitable biomass.
Response: The most recent full stock
assessment for black sea bass was
completed in 2006 as part of the NEFSC
SARC 43. The SARC rejected the results
of this assessment for management use.
Therefore, the previous assessment
remains the best available scientific
information and utilizes the 3-year
moving average of the NEFSC spring
survey catch-per-tow as a means to
define exploitable biomass. NMFS
continues to support the development of
additional assessment methods for black
sea bass; however, until such time that
new methods are developed and
accepted through peer review, the 3year average NEFSC spring survey
catch-per-tow remains the best available
scientific information.
Comment 17: One comment was
received in support of the 2008
conditionally approved RSA amounts.
Response: NMFS implements the
proposed RSA amounts through this
final 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 MagnusonStevens Act and other applicable laws.
The Assistant Administrator for
Fisheries, NOAA, finds good cause
under 5 U.S.C. 553(d)(3) to waive the
30-day delayed effectiveness period for
this rule. This action establishes
specifications (i.e., annual quotas) for
the summer flounder, scup, and black
sea bass fisheries and possession limits
for the commercial scup fishery.
Preparation of the proposed rule was
dependent on the submission of the EA/
RIR/IRFA in support of the
specifications, which was developed by
the Council. This document was
received by NMFS late in September
2007. This documentation in support of
the Council’s recommended
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specifications is required for NMFS to
provide the public with information
from the environmental and economic
analyses as required in rulemaking.
NMFS published the proposed rule as
expeditiously as possible following a
review of the Council’s proposed
specifications for compliance with the
Magnuson-Stevens Act, the FMP and its
implementing regulations, and other
applicable law. The proposed rule was
published on November 14, 2007, with
a 21-day comment period ending
December 3, 2007. Publication of the
adjusted summer flounder quota by the
start of the fishing year that begins
January 1, 2008, 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, 2008, NMFS will be
prevented from carrying out its legal
obligation to prevent overfishing of
these three species and will be in
violation of a Federal court order. If a
30-day delay in effectiveness were to be
required, the lack of effective quota
specifications would prevent NMFS
from closing the 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 2008.
In addition, the Delaware summer
flounder fishery would be open for
fishing, but in a negative quota
situation. All of these factors could
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 because this
action contains no implementing
regulations.
This final rule does not duplicate,
conflict, or overlap with any existing
Federal rules.
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.
VerDate Aug<31>2005
17:23 Dec 28, 2007
Jkt 214001
Final Regulatory Flexibility Analysis
Statement of Objective and Need
A description of the reasons why this
action is being taken, and the objectives
of and legal basis for this final rule are
contained 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 rule
specifically addressed the potential
economic impact of reduction of the
summer flounder TAL on the
recreational fishing industry,
particularly in NJ. No changes to the
proposed rule were required to be made
as a result of public 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
commercial or charter/party permit for
summer flounder, scup, or black sea
bass, as well as owners of vessels that
fish for any of these species in state
waters. The Council estimates that the
2008 quotas could affect 2,253 vessels
that held a Federal summer flounder,
scup, and/or black sea bass permit in
2006, the most recent year for which
complete permit data exists. The
specific breakdown of permits, by
species and type, are as follows:
Commercial—summer flounder, 1,021
permits; scup, 884 permits; black sea
bass, 928 permits and recreational
charter/party—summer flounder 872;
scup, 759; black sea bass, 832. Some
individuals hold combinations of
commercial and charter/party permits
for one or more of the three species. The
more immediate impact of this final rule
will likely be felt by the 903 vessels that
actively participated (i.e., landed these
species) in these fisheries in 2006.
Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
No additional reporting,
recordkeeping, or other compliance
requirements are included in this final
rule.
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74205
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
measures as commercial fish sizes,
changes to mesh sizes, gear restrictions,
or possession and trap limits that may
increase efficiency or value of the
fishery. For 2008, 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.
The economic analysis for the 2008
specification assessed the impacts for
three alternatives. The no action
alternative wherein no quotas are
established for 2008, 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 in 2008 would substantially
complicate the approved management
programs for these three species. NMFS
is required under the FMP’s
implementing regulations to specify and
implement a TAL (and TAC for scup)
for these fisheries on an annual basis.
The no action alternative would result
in no TAL (and no scup TAC) for 2008
and would likely result in overfishing of
the resources.
Alternative 3 (status quo) would
maintain the specifications in place for
these fisheries in 2007. As such, this is
the least restrictive alternative and
would produce the smallest impact on
small entities. Because of the difference
in RSA between 2007 and 2008,
implementation of this alternative
would result in minor increases in the
quotas for all three species. However,
implementation of Alternative 3 would
likely result in the biological targets
(i.e., fishing mortality and exploitation
rates) specified in the FMP being
E:\FR\FM\31DER1.SGM
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74206
Federal Register / Vol. 72, No. 249 / Monday, December 31, 2007 / Rules and Regulations
exceeded and would jeopardize the
rebuilding plans for these overfished
species. Alternative 3 is, therefore,
inconsistent with the goals and
objectives of the FMP, its implementing
regulations, and the Magnuson-Stevens
Act.
Alternative 2 is the most restrictive
set of specifications for 2008. It includes
the Monitoring Committee’s
recommended summer flounder TAL of
11.64 million lb (5,280 mt), a 5.02million-lb TAL (2,277-mt) for scup, and
a 3.75-million-lb (1,710-mt) TAL for
black sea bass. The measures contained
in Alternative 2 would meet all the
objectives of the FMP and satisfy the
requirements of the Magnuson-Stevens
Act. Alternative 2 would also have the
highest economic impact on small
entities. This alternative was not
selected for implementation as the
measures contained therein were overly
restrictive relative to the FMP and
Magnuson-Stevens Act requirements for
the three species.
This final rule implements
Alternative 1, the Council’s preferred
alternative, which consists of the quota
alternatives with an intermediate level
economic impacts to small entities
when compared to Alternatives 2 and 3.
Relative to 2007, the 2008 commercial
quotas and recreational harvest
measures in this action would result in
the following TAL decreases for the
commercial and recreational sectors:
• 7.8 percent for summer flounder
• 38.8 percent for scup
• 15.6 percent for black sea bass
Alternative 1 was selected because it
satisfies NMFS’s obligation to
implement specifications that are
consistent with the goals, objectives,
and requirements of the FMP, its
implementing regulations, and the
Magnuson-Stevens Act. The Alternative
1 TAL for summer flounder is
sufficiently risk-averse, providing a high
probability that the rebuilding F rate
and an even higher probability that the
overfishing threshold (FMAX) will not
be exceeded in 2008. The rebuilding F,
TAL, and the associated probabilities for
success were all derived using the best
available, peer-reviewed scientific
methods and modeling approaches.
Alternative 1 provides for a higher
summer flounder TAL than the most
restrictive TAL and has the highest
economic impact contained in
Alternative 2. As such, Alternative 1
minimizes to the extent practicable,
given the regulatory and statutory
requirements, the economic impacts on
small entities that participate in the
summer flounder fishery. Similarly, the
Alternative 1 measures for scup satisfy
the requirements of the recently
implemented rebuilding plan for that
stock. The black sea bass quota in
Alternative 1 was selected as a riskaverse measure that will adequately
constrain harvest in 2008 and provide
continued rebuilding of the overfished
stock. Table 5 presents the 2008 initial
TALs, RSA, commercial quotas adjusted
for RSA, and preliminary recreational
harvests for the fisheries under these
three quota alternatives.
TABLE 5.—COMPARISON OF THE ALTERNATIVES OF QUOTA COMBINATIONS REVIEWED IN MILLION LB AND METRIC TONS.
Initial TAL
Quota Alternative 1 (Preferred):
Summer Flounder ...........................
Scup ................................................
Black Sea Bass ..............................
Quota Alternative 3 (Status Quo-Least
Restrictive):
Summer Flounder ...........................
Scup ................................................
mstockstill on PROD1PC66 with RULES
Black Sea Bass ..............................
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 program would be sold, and the
profits would be used to offset the costs
of research. As such, total gross
revenues to the industry will not
decrease substantially, if at all, as a
result of this final rule authorizing RSA
for 2008.
0.233
(106)
0.214
(97)
0.086
(39)
0.09
(41)
0.62
(283)
0.00
9.2
(4,187)
4.62
(2,095)
2.03
(920)
10.26
(4,653)
1.83
(830)
2.11
(957)
0.233
(106)
0.151
(97)
0.086
(39)
0.09
(41)
0.62
(283)
0.00
6.75
(3,061)
2.92
(1,324)
1.80
(817)
4.56
(2,068)
1.33
(603)
1.87
(848)
17.112
(13,744)
12.00
(7,484)
5.00
(3,719)
Quota Alternative 2 (Most Restrictive):
Summer Flounder ...........................
Jkt 214001
Preliminary
recreational
harvest limit
11.64
(10,700)
5.02
(4,885)
3.75
(3,402)
Black Sea Bass ..............................
17:23 Dec 28, 2007
Preliminary
adjusted
commercial quota
15.77
(11,793)
7.34
(7,380)
4.22
(3,629)
Scup ................................................
VerDate Aug<31>2005
2007 Commercial
quota overage
RSA
0.233
(106)
0.214
(97)
0.086
(39)
0.09
(41)
0.62
(283)
0.00
10.03
(4,540)
8.32
(3,773)
2.41
(1,782)
6.75
(3,061)
4.2
(1,905)
2.51
(1,856)
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
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Fmt 4700
Sfmt 4700
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: https://www.nero.noaa.gov.
E:\FR\FM\31DER1.SGM
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Federal Register / Vol. 72, No. 249 / Monday, December 31, 2007 / Rules and Regulations
Dated: December 21, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 07–6252 Filed 12–26–07; 1:10 pm]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No.050613158–5262–03]
RIN 0648–AT48
Magnuson-Stevens Fishery
Conservation and Management Act
Provisions; Fisheries of the
Northeastern United States; Extension
of Emergency Fishery Closure Due to
the Presence of the Toxin that Causes
Paralytic Shellfish Poisoning
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; emergency
action; extension of effective period;
request for comments.
mstockstill on PROD1PC66 with RULES
AGENCY:
SUMMARY: This action extends a
temporary final rule initially published
on October 18, 2005. The regulations
contained in the temporary rule,
emergency action, published on October
18, 2005, and subsequently extended
several times at the request of the U.S.
Food and Drug Administration (FDA),
will expire on January 1, 2008. This
temporary rule extends a closure of
Federal waters through December 31,
2008. The FDA has determined that
current oceanographic conditions and
alga sampling data suggest that the
northern section of the Temporary
Paralytic Shellfish Poison (PSP) Closure
Area remain closed to the harvest of
bivalve molluscan shellfish and that the
southern area remain closed to the
harvest of whole or roe-on scallops.
NMFS is publishing the regulatory text
associated with this closure in this
temporary emergency rule in order to
ensure that current regulations
accurately reflect the codified text that
has been modified and extended
numerous times, so that the public is
aware of the regulations being extended
through December 31, 2008.
DATES: The amendments to § 648.14 are
effective from January 1, 2008, through
December 31, 2008. The expiration date
of the temporary emergency action
published on July 27, 2007 (72 FR
VerDate Aug<31>2005
17:23 Dec 28, 2007
Jkt 214001
35200), is extended through December
31, 2008. Comments must be received
by January 30, 2008.
ADDRESSES: Copies of the Small Entity
Compliance Guide, the emergency rule,
the Environmental Assessment, and the
Regulatory Impact Review prepared for
the October 18, 2005, reinstatement of
the September 9, 2005, emergency
action and subsequent extensions of the
emergency action, are available from
Patricia A. Kurkul, Regional
Administrator, National Marine
Fisheries Service, One Blackburn Drive,
Gloucester, MA 01930. These
documents are also available via the
internet at https://www.nero.noaa.gov/
nero/hotnews/redtide/.
You may submit comments, identified
by RIN 0648–AT48, by any one of the
following methods:
• Mail: Patricia A. Kurkul, Regional
Administrator, Northeast Region,
NMFS, One Blackburn Drive,
Gloucester, MA 01930–2298. Mark on
the outside of the envelope, ‘‘Comments
on PSP Closure.’’
• Fax: (978) 281–9135.
• Electronic Submissions: Submit all
electronic public comments via the
Federal Rulemaking Portal https://
www.regulations.gov.
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit Confidential Business
Information or otherwise sensitive or
protected information.
NMFS will accept anonymous
comments. Attachments to electronic
comments will be accepted in Microsoft
Word, Excel, WordPerfect, or Adobe
PDF file formats only.
FOR FURTHER INFORMATION CONTACT:
Brian Hooker, Fishery Policy Analyst,
phone: (978) 281–9220, fax: (978) 281–
9135.
SUPPLEMENTARY INFORMATION:
Background
This emergency closure is being
implemented at the request of the FDA
after samples of shellfish from the
inshore and offshore waters off of the
coasts of New Hampshire and
Massachusetts tested positive for the
toxins (saxotoxins) that cause PSP.
These toxins are produced by the alga
Alexandrium fundyense, which can
form blooms commonly referred to as
red tides. Current oceanographic
conditions and alga sampling data
suggest that the northern section of the
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Fmt 4700
Sfmt 4700
74207
Temporary PSP Closure Area remain
closed to the harvest of bivalve
molluscan shellfish and that the
southern area remain closed to the
harvest of whole or roe-on scallops. Red
tide blooms, also known as harmful
algal blooms (HABs), can produce
toxins that accumulate in filter-feeding
shellfish. Shellfish contaminated with
the toxin, if eaten in large enough
quantity, can cause illness or death from
PSP.
On June 10, 2005, the FDA requested
that NMFS close an area of Federal
waters off the coasts of New Hampshire
and Massachusetts to fishing for bivalve
shellfish intended for human
consumption. On June 16, 2005, NMFS
published an emergency rule (70 FR
35047) closing the area recommended
by the FDA, i.e., the Temporary PSP
Closure Area, through September 30,
2005. On July 7, 2005 (70 FR 39192), the
emergency rule was modified to
facilitate the testing of shellfish for the
toxin that causes PSP by the FDA and/
or FDA-approved laboratories through
the issuance of a Letter of Authorization
(LOA) from the NMFS Regional
Administrator. On September 9, 2005
(70 FR 53580), the emergency regulation
was once again modified by the division
of the Temporary PSP Closure Area into
northern and southern components. The
northern area remained closed to the
harvest of all bivalve molluscan
shellfish, while the southern component
was reopened to the harvest of Atlantic
surfclams and ocean quahogs, but
remained closed to the harvest of whole
or roe-on scallops. The rule was
extended as published on September 9,
2005, on October 3, 2005 (70 FR 57517);
reinstated on October 18, 2005, (70 FR
60450) to correct a technical error;
extended on December 28, 2005 (70 FR
76713); and subsequently on June 30,
2006 (71 FR 37505); January 4, 2007 (72
FR 291); and again on June 27, 2007 (72
FR 35200), through December 31, 2007.
On May 18, 2007, the FDA indicated
that it could not support the re-opening
of the Temporary PSP Closure Area due
to insufficient analytical data from the
area, and recommended the area remain
closed indefinitely. The boundaries of
the northern component of the
Temporary PSP Closure Area comprise
Federal waters bound by the following
coordinates in the order stated: (1)
43°00′ N. lat., 71°00′ W. long.; (2) 43° 00′
N. lat., 69° 00′ W. long.; (3) 41°39′ N.
lat., 69° 00′ W. long.; (4) 41° 39′ N. lat.,
71° 00′ W. long., and then ending at the
first point. Under this emergency rule,
this area remains closed to the harvest
of Atlantic surfclams, ocean quahogs,
and whole or roe-on scallops. The
E:\FR\FM\31DER1.SGM
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]]>Agencies
[Federal Register Volume 72, Number 249 (Monday, December 31, 2007)]
[Rules and Regulations]
[Pages 74197-74207]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-6252]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 071030625-7696-02]
RIN 0648-XC84
Fisheries of the Northeastern United States; Summer Flounder,
Scup, and Black Sea Bass Fisheries; 2008 Summer Flounder, Scup, and
Black Sea Bass Specifications; Preliminary 2008 Quota Adjustments; 2008
Summer Flounder Quota for Delaware
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues final specifications for the 2008 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 landing summer flounder in
Delaware in 2008 due to continued quota repayment from previous years'
overages.
The actions of this final rule are necessary to comply with
regulations implementing the Summer Flounder, Scup, and Black Sea Bass
Fishery Management Plan (FMP), as well as to ensure compliance with the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).
The intent of this action is to establish harvest levels and other
management measures to ensure that 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 these three overfished species and ends
overfishing in the summer flounder fishery.
DATES: Effective January 1, 2008, through December 31, 2008.
ADDRESSES: Copies of the specifications document, including the
Environmental Assessment (EA), Regulatory Impact Review (RIR), 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 https://www.nero.noaa.gov. The Final
Regulatory Flexibility Analysis (FRFA) consists of the IRFA, public
comments and responses contained in this final rule, and the summary of
impacts and alternatives contained in this final rule. Copies of the
small entity compliance guide are available from Patricia A. Kurkul,
Regional Administrator, Northeast Region, National Marine Fisheries
Service, One Blackburn Drive, Gloucester, MA 01930-2298.
FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy
Analyst, (978) 281-9104.
SUPPLEMENTARY INFORMATION:
Background
The summer flounder, scup, and black sea bass fisheries are managed
cooperatively under the provisions of the FMP developed by the Mid-
Atlantic Fishery Management Council (Council) and the Atlantic States
Marine Fisheries Commission (Commission), in consultation with the New
England and South Atlantic Fishery Management Councils. The management
units specified in the FMP include summer flounder (Paralichthys
dentatus) in U.S. waters of the Atlantic Ocean from the southern border
of North Carolina (NC) northward to the U.S./Canada border, and scup
(Stenotomus chrysops) and black sea bass (Centropristis striata) in
U.S. waters of the Atlantic Ocean from 35[deg]13.3' N. lat. (the
latitude of Cape Hatteras Lighthouse, Buxton, NC) northward to the
U.S./Canada border. The Council prepared the FMP under the authority of
the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Regulations
implementing the FMP appear at 50 CFR part 648, subparts A (general
provisions), G (summer flounder), H (scup), and I (black sea bass).
General regulations governing U.S. fisheries also appear at 50 CFR part
600. States manage summer flounder within 3 nautical miles of their
coasts, under the Commission's plan for summer flounder, scup, and
black sea bass. The Federal regulations govern vessels fishing in the
exclusive economic zone (EEZ), as well as vessels possessing a Federal
fisheries permit, regardless of where they fish.
The regulations 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,
[[Page 74198]]
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 (i.e., 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 2008 specifications for these fisheries was provided
in the proposed specifications (72 FR 64023; November 14, 2007). That
information is not repeated here.
NMFS will establish the 2008 recreational management measures for
summer flounder, scup, and black sea bass by publishing proposed and
final rules in the Federal Register at a later date, following receipt
of the Council's recommendations as specified in the FMP.
Summer Flounder
The FMP requires that annual fishing levels (i.e., Total Allowable
Landings or TAL) must achieve at least a 50-percent probability of
constraining harvests to an F rate that produces the maximum yield per
recruit, or FMAX. The best available scientific information
from the 2007 updated summer flounder assessment conducted by the
Southern Demersal Working Group (SDWG), using the methods and models
recommended for continued use by the NMFS Office of Science and
Technology during its 2006 peer review, indicates that FMAX
for 2008 is 0.28. However, the best available scientific information
also indicates that, for 2008, a TAL set lower than the FMAX
level is needed to ensure that the rebuilding objective of 197.2
million lb (89,448 mt) spawning stock biomass (SSB) can be attained by
the rebuilding period end date of January 1, 2013. For 2008, the
FTARGET=FREBUILD at 0.199.
The TAL associated with the target F (i.e., FREBUILD for
2008) is allocated 60 percent to the commercial sector and 40 percent
to the recreational sector by the FMP. 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 2008.
This final rule implements the specifications contained in the
November 14, 2007, proposed rule--a summer flounder TAL of 15.77
million lb (7,153 mt) for 2008. This TAL has a 75-percent probability
of achieving the FREBUILD target of 0.199, and a 99-percent
probability that the overfishing threshold, FMAX=0.28, will
not be exceeded in 2008.
Three research projects that would utilize the full summer flounder
research set-aside (RSA) of 233,192 lb (106 mt) have been conditionally
approved by NMFS and are currently awaiting notice of award. After
deducting this RSA, the TAL is divided into a commercial quota of
9,322,085 lb (4,228 mt) and a recreational harvest limit of 6,214,723
lb (2,819 mt). If a proposed 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
(67 FR 6877, February 14, 2002), summer flounder overages are
determined based upon landings for the period January-October 2007,
plus any previously unaccounted for overages from January-December
2006. Table 1 summarizes, for each state, the commercial summer
flounder percent share, the 2008 commercial quota (both initial and
less the RSA), the quota overages as described above, and the resulting
final adjusted 2008 commercial quota less the RSA.
Table 1.--Final State-by-State Commercial Summer Flounder Allocations for 2008
--------------------------------------------------------------------------------------------------------------------------------------------------------
Initial quota Initial quota less 2007 Quota overages Adjusted quota less
Percent ------------------------ RSA (through 10/31/07) \1\ RSA
State share -----------------------------------------------------------------------
lb kg lb kg lb kg lb kg
--------------------------------------------------------------------------------------------------------------------------------------------------------
ME........................................ 0.04756 4,500 2,041 4,434 2,011 0 0 4,434 2,011
NH........................................ 0.00046 44 20 43 19 0 0 43 19
MA........................................ 6.82046 645,352 292,732 635,809 288,403 20,591 9,340 615,218 279,063
RI........................................ 15.68298 1,483,924 673,108 1,461,981 663,154 0 0 1,461,981 663,154
CT........................................ 2.25708 213,565 96,873 210,407 95,441 0 0 210,407 95,441
NY........................................ 7.64699 723,558 328,206 712,859 323,353 15,375 6,974 697,484 316,379
NJ........................................ 16.72499 1,582,519 717,830 1,559,118 707,216 0 0 1,559,118 707,216
DE........................................ 0.01779 1,683 764 1,658 752 55,556 25,200 -53,898 -24,448
MD........................................ 2.03910 192,940 87,517 190,087 86,223 0 0 190,087 86,223
VA........................................ 21.31676 2,016,992 914,907 1,987,166 901,379 0 0 1,987,166 901,379
NC........................................ 27.44584 2,596,925 1,177,965 2,558,524 1,160,547 0 0 2,558,524 1,160,547
-------------------------------------------------------------------------------------------------------------
Total \2\............................. 100.00 9,462,001 4,291,964 9,322,086 4,228,498 91,522 41,514 9,284,462 4,211,431
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 2007 quota overage is determined through comparison of landings for January through October 2007, plus any landings in 2006 in excess of the 2006
quota (that were not previously addressed in the 2007 specifications), with the 2007 emergency rule quota for each state (72 FR 2458, January 19,
2007). For Delaware, includes continued repayment of overharvest from 2007 and previous years.
\2\ Total quota is the sum of all states having allocation. A state with a negative number has a 2008 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.
Delaware Summer Flounder Closure
Table 1 indicates that, for Delaware, the amount of the 2007 summer
[[Page 74199]]
flounder quota overage (inclusive of overharvest from previous years)
is greater than the amount of commercial quota allocated to Delaware
for 2008. As a result, there is no quota available for 2008 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 (Regional
Administrator), has determined no longer has commercial quota available
for harvest. Therefore, effective January 1, 2008, landings of summer
flounder in Delaware by vessels holding commercial Federal summer
flounder fisheries permits are prohibited for the 2008 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 2008 calendar year,
unless additional quota becomes available through a transfer, as
mentioned above.
Scup
The 2008 fishing season is year 1 of the 7-year, constant F
strategy scup rebuilding plan implemented by Amendment 14 to the FMP
(72 FR 40077; July 23, 2007). The target exploitation rate for scup in
2008 is 9 percent, which will result in an F=0.10, as called for under
the rebuilding plan. 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 2008.
This final rule implements the specifications contained in the
November 14, 2007, proposed rule: A 9.9-million-lb (4,491-mt) scup TAC
and a 7.34-million-lb (3,329-mt) scup TAL. The TAC is divided into the
commercial (78 percent) and recreational (22 percent) allocations, in
accordance with the FMP; then the respective discard estimates are
subtracted to yield the preliminary TAL. After deducting 214,000 (97
mt) of RSA for the three approved research projects, the initial TAL is
a commercial quota of 5,248,000 lb (2,381 mt) and a recreational
harvest limit of 1,830,920 lb (830 mt). If a proposed 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 (67 FR 6877, February 14, 2002), scup overages are
determined based upon landings for the Winter I and Summer 2007
periods, plus any previously unaccounted for landings from January-
December 2006. Table 2 presents the final 2008 commercial scup quota
for each period and the reported 2007 landings for the 2007 Winter I
and Summer periods. There was no overage of the Winter I quota;
however, an overage of 624,876 lb (283 mt) occurred during the Summer
quota period. As a result, the 2008 Summer period quota is reduced by
this amount.
On July 24, 2007, (72 FR 40263) NMFS announced a transfer of
unharvested quota from the Winter I to the Winter II 2007 quota period.
Per the quota accounting procedures, after June 30, 2008, NMFS will
compile all available landings data for the 2007 Winter II quota period
and compare the landings to the 2007 Winter II quota period allocation,
as adjusted by the aforementioned transfer. Any overages will be
determined and deductions, if needed, will be made to the Winter II
2008 allocation and published in the Federal Register.
Table 2.--Scup Preliminary 2007 Commercial Landings By Quota Period
----------------------------------------------------------------------------------------------------------------
2007 Quota Reported 2007 Landings Preliminary Overages as
-------------------------- through 10/31/07 of 10/31/07
Quota period ---------------------------------------------------
lb mt lb mt lb mt
----------------------------------------------------------------------------------------------------------------
Winter I.......................... 4,012,895 1,820 3,386,505 1,536 0 0
Summer............................ 3,464,914 1,572 4,089,790 1,855 624,876 283
Winter II......................... 1,417,991 643 N/A N/A N/A N/A
-----------------------------------------------------------------------------
Total......................... 8,895,800 4,035 7,476,295 3,391 N/A N/A
----------------------------------------------------------------------------------------------------------------
N/A = Not applicable.
Table 3 presents the commercial scup percent share, 2008 TAC,
projected discards, 2008 initial quota (with and without the RSA
deduction), overage deductions (as necessary), and initial possession
limits, by quota period. This final rule continues the status quo
Winter I period (January-April) per-trip possession limit of 30,000 lb
(13.6 mt), and a Winter II period (November-December) initial per-trip
possession limit of 2,000 lb (907 kg). The Winter I per-trip possession
limit will be reduced to 1,000 lb (454 kg) when 80 percent of the
commercial quota allocated to that period is projected to be harvested.
Table 3.--Initial Commercial Scup Quota Allocations for 2008 by Quota Period
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total allowable Discards Initial quota Initial quota Adjusted quota Possession
catch ---------------------------------------- less overages less overages and limits (Per
Percent -------------------- (through 10/31/ RSA trip) \2\
Quota period share 2007) \1\ -------------------------------------
lb mt lb mt lb mt --------------------
lb mt lb mt lb kg
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Winter I......................................................... 45.11 3,483,394 1,580 1,019,486 462 2,463,908 1,118 N/A N/A 2,367,373 1,074 30,000 13,608
Summer........................................................... 38.95 3,007,719 1,364 880,270 399 2,127,449 965 1,502,573 682 1,419,220 644 N/A N/A
[[Page 74200]]
Winter II........................................................ 15.94 1,230,887 558 360,244 163 870,643 395 N/A N/A 836,531 379 2,000 907
------------------------------------------------------------------------------------------------------------------------------
Total \3\.................................................... 100.0 7,722,000 3,503 2,260,000 1,025 5,462,000 2,478 N/A N/A 4,623,124 2,097 N/A N/A
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ An overage of 624,876 lb (283 mt) occurred during the 2007 Summer quota period
\2\ 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.
\3\ 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 were in place for
the 2007 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 a maximum possession
limit of 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 Winter II Increase in initial Final Winter II
--------------------------------------------------------------------------------------------------------- Winter II possession limit after
possession limit 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
Black Sea Bass
For 2008, the target exploitation rate for black sea bass is 25
percent. The FMP specifies that the TAL associated with a given
exploitation rate be allocated 49 percent to the commercial sector and
51 percent to the recreational sector. The recreational harvest limit
is allocated on a coastwide basis. Recreational measures will be the
subject of a separate rulemaking early in 2008.
This final rule implements the specifications contained in the
November 14, 2007, proposed rule: A 4.22-million-lb (1,194-mt) black
sea bass TAL. After deducting 85,790 lb (39 mt) of RSA for the three
approved research projects, the TAL is divided into a commercial quota
of 2,025,763 lb (919 mt) and a recreational harvest limit of 2,108,447
lb (9569 mt). If a proposed 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 period January-September 2007, plus any previously unaccounted
for landings from January-December 2006. There were no overages for
either period; thus, no overage deduction adjustment to the 2008
commercial quota is necessary.
Comments and Responses
NMFS received 25,443 comments during the comment period for the
November 14, 2007, proposed rule. Of these, 20,159 comments were
received through the prescribed methods outlined in the proposed rule:
Electronic submission via the Federal eRulemaking Portal (https://
www.regulations.gov); fax; standard mail; and hand delivery. An
additional 5,284 were sent via e-mail to the Regional Administrator.
Though these comments were not supplied through the prescribed methods,
they were form letters that make the same points as other comments
received through the established public comment system and are
therefore addressed in this final rule's responses to comments. In
addition, one comment letter contained over 14,000 signatories. This
letter was treated as 14,000+ comments for the purposes of the total
comments received enumeration listed above.
Comments were received from the representatives of several
conservation groups, recreational and commercial fishery associations
and advocacy groups, and private citizens. The vast majority (99
percent) of comments received were from individual members of various
conservation groups and from a conservation-based recreational fishery
advocacy group who urged NMFS to adopt a summer flounder TAL lower than
the 15.77-million-lb (7,153-mt) implemented by this final rule.
Only comments that were applicable to the proposed 2008
specifications, including the analyses used to support these
specifications, are addressed in this preamble. The majority of the
comments submitted contained the same or similar language; therefore,
the significant issues and concerns have been summarized and responded
to here.
Comment 1: Many commenters suggested that a 15.77-million-lb
(7,153-mt) summer flounder TAL for 2008 has less than the required
regulatory and 2000 Federal court-ordered \1\ 50-percent probability of
constraining fishing mortality below the overfishing level
[[Page 74201]]
(FMAX = 0.28) in 2008. These commenters advocated for a
lower 2008 TAL and suggested that the TAL be established anywhere from
a low of 8.0 million lb (3,629 mt) to a high of 12.9 million lb (5,851
mt). The majority of commenters advocating for a lower TAL indicated
that NMFS should implement the 11.64-million-lb (5,280-mt) TAL, on the
low end of the Summer Flounder Monitoring Committee's (Monitoring
Committee) recommended TAL range.
---------------------------------------------------------------------------
\1\ Natural Resources Defense Council v. Daley Civil NO. 1:99
CV00221(JLG).
---------------------------------------------------------------------------
Response: NMFS disagrees that the proposed TAL, which is
implemented through this final rule, fails to meet the regulatory and
legal requirements to prevent overfishing. Analysis conducted by the
Northeast Fisheries Science Center (NEFSC) indicates that a 15.77-
million-lb (7,153-mt) TAL has a 99-percent probability of not exceeding
the overfishing level (FMAX = 0.28) in 2008. Responses to
comments 2 through 7 contain additional justification for the selection
of the TAL implemented by this final rule.
Comment 2: Many commenters indicated that they believe the 15.77-
million-lb (7,153-mt) summer flounder TAL has less than a 50-percent
probability of meeting the FREBUILD target recommended by
the Monitoring Committee (FREBUILD adjusted = 0.143) and is,
therefore, in violation of the summer flounder regulations and Federal
court order.
Response: Contrary to the interpretation of the commenters, the
specific regulatory and Federal court-ordered requirement for
probabilities of success regarding the annual TAL is limited to
providing at least a 50-percent probability of not exceeding the
overfishing threshold (FMAX=FMSY=0.28). There is
no specific regulatory or statutory requirement that NMFS must meet
regarding probabilities for success relative to FREBUILD.
The Council and NMFS may choose from among various alternative
rebuilding strategies. Analysis provided by the Monitoring Committee
indicates that a 15.77-million-lb (7,153-mt) TAL has a 75-percent
probability of not exceeding FREBUILD=0.199, which is lower
than FMAX=0.28.
Comment 3: Several commenters relayed that they expected a 15.77-
million-lb (7,153-mt) summer flounder TAL in 2008 to prevent sufficient
continued stock growth and will prevent the rebuilding target of 197.2
million lb (89,448 mt) SSB from being attained by the January 1, 2013,
rebuilding period end date, as required by the Magnuson-Stevens Act.
Response: Stock projections using a 15.77-million-lb (7,153-mt)
summer flounder TAL, based on FREBUILD=0.199 in 2008,
indicate that the stock can achieve the rebuilding target biomass level
by January 1, 2013. This TAL and F in 2008 provide a 75-percent
probability that the rebuilding target will be met within the required
time frame. The responses to comments 5 and 6 provide additional
information germane to stock growth and rebuilding.
Comment 4: Many commenters asserted that overfishing has occurred
in the summer flounder fishery since 1982 and that a 15.77-million-lb
(7,153-mt) summer flounder TAL will not end overfishing in 2008.
Response: NMFS reiterates that a 15.77-million-lb (7,153-mt) summer
flounder TAL is projected to have a 99-percent probability of
constraining harvest below the overfishing level in 2008. In addition,
the first definition of overfishing for summer flounder was not
established until the adoption of Amendment 2 to the FMP, which
occurred in 1991. NMFS acknowledges that exploitation on the summer
flounder stock was high, prior to the establishment of an overfishing
definition, but overfishing was not assessed relative to an established
threshold. The Sustainable Fisheries Act of 1996 established a
requirement for rebuilding periods for U.S. fisheries that were
determined to be overfished. Overfishing has occurred in the summer
flounder fishery each year of the rebuilding period for which complete
data are available, 2000-2006. Evaluation of the 2007 fishery
performance will not be available until mid-2008, after the commercial
and recreational fishery data has been compiled and audited.
The level of overfishing has decreased substantially over the
course of the rebuilding period, even with the retrospective pattern
that has resulted in estimated F's increasing for previous years when
more recent data are added to the assessment model. Until 2006, the TAL
was set at the FMAX level with only a 50-percent probability
for success in all but one year (i.e., the 2004 fishing year, for which
the TAL was set at the FMAX level with a 75-percent probability for
success). For the 2007 fishery, the TAL was established to achieve a
lower FREBUILD level, with a 75-percent probability of
success of achieving that lower target. Over the course of the
rebuilding period, NMFS and the Council have been successful at
substantially reducing fishing mortality. NMFS expects, based on the
analysis of the 2008 TAL and the associated 99-percent probability of
success, that overfishing will not occur in 2008. NMFS is also prepared
to further constrain or close the recreational fishery in Federal
waters of the EEZ during or prior to the fishing season, if needed, to
further insure that 2008 mortality objectives for the summer flounder
fishery are met and to ensure that overfishing does not occur.
Comment 5: Some commenters expressed concern that the 15.77-
million-lb (7,153 mt) summer flounder TAL fails to compensate directly
for the retrospective pattern in the stock assessment modeling approach
and does not provide for an adequate buffer between the maximum
sustainable yield and overfishing level in compensation for the model
uncertainty.
Response: The advice of the SDWG in regards to the retrospective
pattern for the 2007 stock assessment update was, ``Given the
persistent retrospective underestimation of fishing mortality in the
[stock] assessment, [fishery] managers should consider adopting a lower
TAL for 2008 than indicated by the median projection results to reduce
the risk that overfishing will occur.'' Similarly, the advice of the
2006 biological reference point peer review was that, ``The [peer
review] Panel does not find that it is necessary to make an explicit
adjustment for the retrospective pattern in the VPA [Virtual Population
Analysis; stock assessment model] results. The pattern diminishes in
the last year [2005], its cause is not clear, and past patterns in the
opposite direction have also diminished after a few years.'' The median
projection result for 2008 is the TAL resulting from a 50-percent
probability of achieving FMAX=0.28 and would yield a TAL of
23.8 million lb (10,807 mt). NMFS has followed the advice from the
independent stock assessment review body and recent peer review and set
the TAL for 2008 at the lower FREBUILD=0.199 level, with a
further reduction by using the 25th percentile projection (i.e., a 75-
percent probability of achieving the FREBUILD). This is the
most risk-averse approach yet applied to setting a summer flounder TAL
since the rebuilding period began in 2000.
NMFS acknowledges that the 2008 TAL does not explicitly adjust for
the retrospective pattern as was recommended by the Monitoring
Committee. However, the TAL implemented by this rule is consistent with
the advice of the independent stock assessment body and the SDWG, and
reduces the TAL from the minimum level required by the regulations to
lower the risk that overfishing will occur in 2008.
The TAL provides for high probabilities of success relative to both
the overfishing threshold (FMAX) and the necessary
rebuilding F (FREBUILD) to
[[Page 74202]]
ensure continued stock rebuilding. Similarly, the TAL does provide a
precautionary approach by employing the FREBUILD rather than
the FMAX level, and by utilizing a probability higher than the 50-
percent required, at 99-percent, of not exceeding the overfishing
threshold (FMAX). This TAL has been reduced 33.7 percent
from the median projection (i.e., 50-percent probability of success)
FMSY=FMAX level to compensate for uncertainty.
Comment 6: The majority of the commenters suggested that
implementing a TAL higher than the Monitoring Committee's recommended
TAL range is contrary to scientific advice. These commenters asserted
that this is in violation of the reauthorized Magnuson-Stevens Act that
the Council may not set annual catch limits higher that the
recommendations of the Council's Scientific and Statistical Committee
(SSC), ignores the best available science as required by National
Standard 2 of the Magnuson-Stevens Act, and is inconsistent with public
hearing documents for proposed National Standard 1 guidelines.
Response: All of the TAL options evaluated by the Monitoring
Committee, including the 15.77-million-lb (7,153-mt) TAL implemented by
this final rule, were derived using the most recent stock assessment
update provided by the SDWG. The SDWG utilized the modeling approaches
and methods recommended for continued use by the NMFS Office of Science
and Technology in its 2006 peer review of the summer flounder
biological reference points. The data utilized in the 2007 SDWG update
are the most recent, best available, fishery-independent, recreational,
and commercial fishery-dependent information and, as such, are
consistent with National Standard 2 and constitute the best available
scientific information. The selection of a TAL from among those options
developed by the Monitoring Committee represents a policy choice for
the Council and NMFS. NMFS and the Council recognize that TALs within
the Monitoring Committee's recommended range would be more risk averse
than the TAL implemented by this rule; however, NMFS is confident that
the 15.77-million-lb (7,513-mt) TAL is sufficiently risk averse to
ensure that all the regulatory and statutory requirements pertaining to
annual TALs and rebuilding are met while somewhat mitigating the
economic impacts associated with a reduction in harvest level (see
responses to comments 1 through 7 for additional information).
The FMP's implementing regulations specify that the Monitoring
Committee shall recommend fishing levels that produce the maximum yield
per recruit (FMAX) with at least a 50-percent probability of
success. There is no regulatory requirement that the Council adopt the
recommendations of the Monitoring Committee, nor is the Monitoring
Committee explicitly required to forward recommendations to achieve
rebuilding or attain alternate F targets, other than those that would
yield at least a 50-percent probability of constraining F at or below
the overfishing level.
The reauthorized Magnuson-Stevens Act specifies that the Council's
SSC shall provide ongoing scientific advice to the Council for, among
other things, annual catch levels, ending overfishing, and achieving
rebuilding targets. The Council's SSC did not review the updated 2007
assessment, nor did it make recommendations to the Council regarding
the 2008 summer flounder TAL. NMFS has encouraged the Council to modify
its operating procedures so that SSC review is incorporated into the
annual specification setting process; however, to date this has not
been done. There is no statutory requirement that NMFS only implement
recommendations that have been vetted through the Council's SSC.
The Magnuson-Stevens Reauthorization Act was signed into law in
January 2007. Development and implementation of guidance for several
changes in the Act are in various stages of development. Guidance from
the Secretary of Commerce, via NMFS, to Councils on SSC use is expected
in the near-term. In the interim, the Council has developed internal
guidance that relies on Monitoring Committee recommendations for
specification setting, such that overfishing does not occur. The Annual
Catch Limit (ACL) provisions of the Magnuson-Stevens Reauthorization
Act are not required to be in place until 2010 or 2011, dependent on
the status of the stock in question. The Monitoring Committee, while
composed of scientists and individuals with stock assessment expertise,
is not the same as the Council's SSC and, therefore, neither the
Council nor NMFS is under any statutory requirement to accept its
recommendations when other alternatives are available that also satisfy
the regulatory and statutory requirements for annual summer flounder
TALs.
NMFS has not yet published a proposed rule containing guidance for
the application of National Standard 1 under the reauthorized Magnuson-
Stevens Act. While the public hearing document supplied in advance of
the proposed rule was provided to form the basis of discussions with
the public, final guidance has yet to be developed and may differ from
the hearing document and/or proposed rule, when published in the
Federal Register. The public will have opportunity to provide comment
during the proposed rule comment period, once a proposed rule is
published. The response to comment 5 contains information on the level
of precaution associated with the 15.77-million-lb (7,153-mt) TAL
implemented by this final rule.
As previously outlined, NMFS has a regulatory obligation to satisfy
when implementing an annual summer flounder TAL (i.e., by implementing
a TAL with at least a 50-percent probability that overfishing will not
occur). For 2008, both the Monitoring Committee and Council's
recommendations satisfy this requirement. NMFS must use the best
available scientific information, consistent with National Standard 2.
The TAL implemented by this final rule does so, as outlined previously
in this response and in the response to comment 5. NMFS must also
ensure that the TAL provides a reasonable probability for continued
stock rebuilding so that the stock is rebuilt no later than January 1,
2013; but is under no legal or regulatory requirement to adopt any
particular rebuilding strategy as long as it complies with the
requirements of section 304(e) of the Magnuson-Stevens Act. As long as
the TAL satisfies these requirements, the selection of one TAL over
another is a policy choice for the Council and the agency. For 2008,
NMFS agrees with the Council that a TAL of 15.77-million-lb (7,153-mt)
satisfies all of these performance metrics while mitigating some of the
economic impacts associated with the lower TAL options and finds no
legal or regulatory impediment to prevent implementation of the
Council's recommendation.
The process for setting TALs is performed annually. Each year, the
performance of the previous year's TAL and F target are evaluated along
with updates to the stock status and the projected TALs and F targets
needed in the remaining rebuilding years (e.g., 2009-2012) to ensure
the rebuilding target is met. In any given year, adjustments may be
needed to the projections utilized in the previous year's assessments
to ensure that the regulatory and statutory rebuilding requirements
continue to be met. This was the case for 2008, in which a TAL lower
than what was projected in 2007 is needed to ensure continued
rebuilding. Implementation of the 15.77-
[[Page 74203]]
million-lb (7,153-mt) TAL for 2008 does not lock the rebuilding
trajectory into an unadjustable course of action for the remainder of
the rebuilding period.
While NMFS is not implementing the specific recommendations of the
Monitoring Committee, the 15.77-million-lb (7,153-mt) TAL is consistent
with the recommendations of the SDWG recommendation to use a TAL lower
than the median projection (i.e., 50-percent probability) to minimize
the possibility that overfishing will occur.
Comment 7: Some commenters advocating for a lower 2008 TAL
expressed concern that the approach taken by NMFS for 2008 is for a
short-term gain with long-term negative stock implications for the
remainder of the rebuilding period.
Response: NMFS disagrees that the TAL implemented by this final
rule would have negative stock implications for the remainder of the
rebuilding period. There is no evidence that the 15.77-million-lb
(7,153-mt) TAL would adversely affect the summer flounder stock. Under
all the scenarios presented by the Monitoring Committee and evaluated
by the Council, the stock is expected to continue to increase toward,
and attain, the rebuilding target within the rebuilding period. The
distinction among the alternative TALs considered has nothing to do
with the potential adverse impacts to the stock, but rather on the
probability of achieving a specific rebuilding trajectory. NMFS is
confident that the TAL implemented by this rule will prevent
overfishing and enable the stock to continue rebuilding.
Comment 8: Some commenters advocating for a higher 2008 TAL stated
that the summer flounder stock is at a historic high, healthy, and does
not need further quota reductions in 2008. In addition, they stated
that summer flounder biomass as high as the biomass target has never
been seen before, and current stock conditions are the highest in 25
years.
Response: NMFS acknowledges that the summer flounder biomass has
been at high levels in recent years, peaking in 2005 at the highest
level in the 40-year NEFSC trawl survey time series; however, stock
size decreased from the 2005 to 2006 stock assessment and the biomass
target has not yet been achieved. Additional harvest reductions are
necessary in 2008 to continue stock growth toward the rebuilding target
biomass level. Projections indicate that the TAL implemented by this
final rule will provide for sufficient stock growth in 2008 to maintain
a trajectory sufficient to attain the rebuilding target no later than
January 1, 2013. Based on the accepted and frequently peer-reviewed
stock assessment model, the full potential growth of the stock has yet
to be realized. None of the peer-reviewed science indicates that the
rebuilding target cannot be attained within the rebuilding period or
that the biomass target is incorrect.
Comment 9: Some commenters who felt the 2008 TAL was too low stated
that they believe the summer flounder assessment is flawed and has not
been critically peer reviewed by individuals outside of NMFS. The
commenters suggested that the SSC and National Academies of Science
should review the modeling methods and rebuilding target.
Response: NMFS disagrees. The statement that the summer flounder
assessment has not been critically peer reviewed by persons from
outside the agency is not true. The summer flounder stock assessment
has been independently reviewed by scientists from outside NMFS twice
in the rebuilding period: In 2002 as part of the NEFSC's Stock
Assessment Review Committee (SARC) 35, and again in 2005 during SARC
41. In these reviews, a panel of independent stock assessment experts,
provided by the Center for Independent Experts, critically reviewed the
assessment methodology and data. While recommendations have been made
to develop additional modeling approaches, these 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.
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 was based on the best
possible scientific information available and used the best possible
methodology. The review panelists were scientists with recognized stock
assessment expertise who have not 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 and have been utilized by the SDWG in
updating the assessment used to set the 2008 TAL.
NMFS agrees that the SSC should be involved in the Council's annual
TAL recommendation process as a means to provide independent scientific
advice on annual catch limits, consistent with the reauthorized
Magnuson-Stevens Act.
A benchmark assessment, including peer review by independent stock
assessment experts from the Center for Independent Experts, is
scheduled to occur in 2008. The results of the benchmark assessment are
expected to be made available for the 2009 specification setting
process that will begin with the Council's August 2008, meeting. NMFS
does not find an additional peer review by the National Academies of
Science to be necessary in view of the multiple reviews conducted on
the summer flounder assessment during the rebuilding period.
Comment 10: Most of the commenters favoring a higher 2008 summer
flounder TAL expressed concerns about social and economic impacts,
stating that continued reductions to the TAL in 2008 will have severe
economic impacts to both commercial and recreational fishery
participants, as well as support businesses (e.g., bait and tackle
shops, waterfront hotels, and marinas), many of whom the commenters
believe are likely to go out of business within the next year.
Response: NMFS acknowledges that there are economic impacts
associated with reductions in the TAL from one year to the next and
that continual decreases have a cumulative effect on fishery
participants and associated businesses. A full discussion of the
economic impacts expected to result from the 2008 TAL are contained in
the EA/RIR/IRFA/specifications document prepared by the Council (see
ADDRESSES) and summarized in the IRFA contained in the proposed rule
(72 FR 64023; November 14, 2007), and is not repeated here. NMFS has a
regulatory obligation to ensure that the TAL implemented has at least a
50-percent probability of not exceeding the overfishing threshold
(FMAX), and a statutory obligation to ensure that the summer
flounder stock is rebuilt to 197 million lb (89,411 mt) no later than
January 1, 2013. The 15.77-million-lb (7,153-mt) TAL implemented by
this rule satisfies these requirements. The TAL implemented is less
restrictive than the Monitoring Committee's recommended range for 2008,
which would have had higher economic impacts. Additional discussion of
the steps taken to minimize, to the extent practicable, the economic
impacts on small entities (i.e., Federal permit holders) is outlined in
the FRFA, contained in the Classification section of this final rule.
Although this final rule does not directly regulate fishing support
industries, NMFS acknowledges that potential reductions in fishing
effort and associated expenditures may have
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indirect impacts on hotels, restaurants, fishing gear and bait shops,
and other associated businesses. Sufficient data are not available to
enumerate or characterize the impacts of the 2008 TAL on these
businesses.
Comment 11: One commenter believed commercial fisheries that
degrade habitat and discard summer flounder are the cause of the
stalled stock rebuilding.
Response: NMFS and the Council acknowledged in Amendment 13 to the
FMP that mobile bottom-tending and stationary fishing gear have the
potential to impact adversely essential fish habitat (EFH). Amendment
13 included alternatives that minimize, to the extent practicable,
adverse impacts on EFH. Given that the scope of the specifications,
which include the summer flounder TAL, is narrow by operation of the
regulations and the TAL is consistent with the regulations implementing
the FMP, the effects of commercial fishing on EFH are not required to
be re-evaluated by the Council, and no new alternatives to minimize
impacts were presented in its analysis of the 2008 specifications.
Discard estimates from both commercial and recreational fisheries
are included in the annual stock assessment update that was utilized to
derive the 2008 TAL; therefore, discard effects on stock growth are
incorporated into the annual projections of mortality incurred by the
summer flounder stock.
Comment 12: Many of those favoring a higher 2008 summer flounder
TAL made statements to the effect that the rigid rebuilding timeline
imposed by the Magnuson-Stevens Act is not based on science and the
rebuilding target is unrealistic. One commenter also stated that the
status of the summer flounder stock is not adequately reflected by the
TAL options considered for 2008.
Response: NMFS is obligated to meet its statutory mandate to
rebuild the summer flounder stock no later than the extended rebuilding
deadline of January 1, 2013. While the summer flounder stock has
increased in size since the rebuilding period began in 2000, it is not
yet rebuilt. Multiple peer reviews of the summer flounder stock
assessment and biological reference points have upheld that the
rebuilding target is realistic and that it can be attained within the
rebuilding period (see responses to comments 6, 8, and 9 for more
information). The 2008 TAL implemented by this final rule was derived
utilizing the same methods and data which have been previously peer
reviewed and recommended for continued use. The 15.77-million-lb (5,153
mt) TAL is a reduction from the maximum amount permissible under the
regulations to ensure continued stock rebuilding and to end
overfishing. NMFS acknowledges that the summer flounder stock has been
at high levels in recent years (see response to comment 8) and has
improved since the beginning of the rebuilding period. However,
overfishing in the summer flounder fishery continued through 2006, the
stock is overfished, and it has yet to reach its maximum potential.
Comment 13: One commenter commented that the proposed rule has no
discussion on the existing summer flounder allocation between
commercial and recreational fisheries.
Response: The annual specification process in the regulations does
not permit the Council to evaluate or change the allocation between the
commercial and recreational summer flounder fisheries. The Council has
identified the commercial/recreational allocation as a topic for
further development as part of Amendment 15 to the FMP. Development of
Amendment 15 is expected to continue during 2008, with tentative
completion scheduled for late 2010/early 2011.
Comment 14: One commenter stated that the Secretary of Commerce has
an obligation to ensure that regulations implementing the rebuilding
plan for summer flounder allocate the restrictions equitably and fairly
and that there is no reference to this in the proposed rule for the
public to evaluate if such issues are being addressed by the
rulemaking.
Response: The Magnuson-Stevens Act section 303(a)(14) criteria
referenced by the commenter are not required to be addressed in the
annual specification setting. The section in question is in reference
to FMP requirements and, as such, the criteria therein were addressed
in Amendment 12 to the FMP, which established the summer flounder
rebuilding program.
Comment 15: One commenter opposed the scup TAL, indicating that
scup values from the spring survey index are not compelling for
recommending a reduced quota and that the discard estimates were
overestimated.
Response: The spring SSB 3-year average index value remains the
best available information for assessing the status of the scup stock.
The reduction in quota is not only the result of a reduced 2007 spring
survey value, which reduced the 3-year average value, but is the result
of implementing the scup stock rebuilding program contained in
Amendment 14 to the FMP. The rebuilding plan requires a constant F of
0.10 for the years 2008-2012. The discard estimates were generated
using the NEFSC observer program and dealer data and the geometirc mean
discards-to-landings ratio. Recreational discards were estimated using
the Marine Recreational Fisheries Statistical Survey (MRFSS). While
both are produced annually and have not for this year been externally
peer reviewed, the estimates were reviewed by the Scup Monitoring
Committee and constitute the best scientific information available.
Comment 16: One commenter opposed the black sea bass TAL for 2008,
stating that the 3-year average survey index is not appropriate for
determining exploitable biomass.
Response: The most recent full stock assessment for black sea bass
was completed in 2006 as part of the NEFSC SARC 43. The SARC rejected
the results of this assessment for management use. Therefore, the
previous assessment remains the best available scientific information
and utilizes the 3-year moving average of the NEFSC spring survey
catch-per-tow as a means to define exploitable biomass. NMFS continues
to support the development of additional assessment methods for black
sea bass; however, until such time that new methods are developed and
accepted through peer review, the 3-year average NEFSC spring survey
catch-per-tow remains the best available scientific information.
Comment 17: One comment was received in support of the 2008
conditionally approved RSA amounts.
Response: NMFS implements the proposed RSA amounts through this
final 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 delayed effectiveness
period for this rule. This action establishes specifications (i.e.,
annual quotas) for the summer flounder, scup, and black sea bass
fisheries and possession limits for the commercial scup fishery.
Preparation of the proposed rule was dependent on the submission of
the EA/RIR/IRFA in support of the specifications, which was developed
by the Council. This document was received by NMFS late in September
2007. This documentation in support of the Council's recommended
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specifications is required for NMFS to provide the public with
information from the environmental and economic analyses as required in
rulemaking. NMFS published the proposed rule as expeditiously as
possible following a review of the Council's proposed specifications
for compliance with the Magnuson-Stevens Act, the FMP and its
implementing regulations, and other applicable law. The proposed rule
was published on November 14, 2007, with a 21-day comment period ending
December 3, 2007. Publication of the adjusted summer flounder quota by
the start of the fishing year that begins January 1, 2008, 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, 2008, NMFS will be prevented from carrying out its legal
obligation to prevent overfishing of these three species and will be in
violation of a Federal court order. If a 30-day delay in effectiveness
were to be required, the lack of effective quota specifications would
prevent NMFS from closing the 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 2008. In
addition, the Delaware summer flounder fishery would be open for
fishing, but in a negative quota situation. All of these factors could
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 because this action contains no
implementing regulations.
This final rule does not duplicate, conflict, or overlap with any
existing Federal rules.
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 this final rule are contained 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 rule
specifically addressed the potential economic impact of reduction of
the summer flounder TAL on the recreational fishing industry,
particularly in NJ. No changes to the proposed rule were required to be
made as a result of public 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 commercial or charter/party permit for summer flounder,
scup, or black sea bass, as well as owners of vessels that fish for any
of these species in state waters. The Council estimates that the 2008
quotas could affect 2,253 vessels that held a Federal summer flounder,
scup, and/or black sea bass permit in 2006, the most recent year for
which complete permit data exists. The specific breakdown of permits,
by species and type, are as follows: Commercial--summer flounder, 1,021
permits; scup, 884 permits; black sea bass, 928 permits and
recreational charter/party--summer flounder 872; scup, 759; black sea
bass, 832. Some individuals hold combinations of commercial and
charter/party permits for one or more of the three species. The more
immediate impact of this final rule will likely be felt by the 903
vessels that actively participated (i.e., landed these species) in
these fisheries in 2006.
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 measures as commercial fish sizes, changes to mesh sizes, gear
restrictions, or possession and trap limits that may increase
efficiency or value of the fishery. For 2008, 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 reg
