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[Federal Register Volume 72, Number 249 (Monday, December 31, 2007)]
[Rules and Regulations]
[Pages 74197-74207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-6252]

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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

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

ACTION: Final rule.

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SUMMARY: NMFS issues final specifications for the 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 http://www.nero.noaa.gov. The Final 
Regulatory Flexibility Analysis (FRFA) consists of the IRFA, public 
comments and responses contained in this final rule, and the summary of 
impacts and alternatives contained in this final rule. Copies of the 
small entity compliance guide are available from Patricia A. Kurkul, 
Regional Administrator, Northeast Region, National Marine Fisheries 
Service, 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 (http://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

[[Page 74204]]

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

[[Page 74205]]

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 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

[[Page 74206]]

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 5.02-million-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 risk-averse 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.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                       Preliminary        Preliminary
                                                              Initial TAL            RSA          2007 Commercial        adjusted         recreational
                                                                                                   quota overage     commercial quota    harvest limit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Quota Alternative 1 (Preferred):
    Summer Flounder......................................              15.77              0.233               0.09                9.2              10.26
                                                                    (11,793)              (106)               (41)            (4,187)            (4,653)
    Scup.................................................               7.34              0.214               0.62               4.62               1.83
                                                                     (7,380)               (97)              (283)            (2,095)              (830)
    Black Sea Bass.......................................               4.22              0.086               0.00               2.03               2.11
                                                                     (3,629)               (39)                                 (920)              (957)
Quota Alternative 2 (Most Restrictive):
    Summer Flounder......................................              11.64              0.233               0.09               6.75               4.56
                                                                    (10,700)              (106)               (41)            (3,061)            (2,068)
    Scup.................................................               5.02              0.151               0.62               2.92               1.33
                                                                     (4,885)               (97)              (283)            (1,324)              (603)
    Black Sea Bass.......................................               3.75              0.086               0.00               1.80               1.87
                                                                     (3,402)               (39)                                 (817)              (848)
Quota Alternative 3 (Status Quo-Least Restrictive):
    Summer Flounder......................................             17.112              0.233               0.09              10.03               6.75
                                                                    (13,744)              (106)               (41)            (4,540)            (3,061)
    Scup.................................................              12.00              0.214               0.62               8.32                4.2
                                                                     (7,484)               (97)              (283)            (3,773)            (1,905)
    Black Sea Bass.......................................               5.00              0.086               0.00               2.41               2.51
                                                                     (3,719)               (39)                               (1,782)            (1,856)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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.

Small Entity Compliance Guide

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

[[Page 74207]]

    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
```