Federal Register / Vol. 72, No. 249 / Monday, December 31, 2007 / Rules and Regulations 74197 

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] 

BILLING CODE 3510–22–S 

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 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 

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°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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74198 Federal Register / Vol. 72, No. 249 / Monday, December 31, 2007 / Rules and Regulations 

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 

State Percent 

share 

Initial quota Initial quota 

less RSA 

2007 Quota overages 

(through 10/31/07) 1

Adjusted quota 

less RSA 

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. 2Total 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 

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Federal Register / Vol. 72, No. 249 / Monday, December 31, 2007 / Rules and Regulations 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 

§ 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

Quota period 

2007 Quota Reported 2007 

Landings through 10/31/07 

Preliminary Overages as 

of 10/31/07 

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

Quota 

period 

Percent 

share 

Total allowable 

catch 

Discards Initial quota Initial quota 

less overages 

(through 10/31/ 

2007) 1

Adjusted quota 

less overages and 

RSA 

Possession limits 

(Per trip) 2

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 

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74200 Federal Register / Vol. 72, No. 249 / Monday, December 31, 2007 / Rules and Regulations 

1Natural Resources Defense Council v. Daley 

Civil NO. 1:99 CV00221(JLG). 

TABLE 3.—INITIAL COMMERCIAL SCUP QUOTA ALLOCATIONS FOR 2008 BY QUOTA PERIOD—Continued 

Quota 

period 

Percent 

share 

Total allowable 

catch 

Discards Initial quota Initial quota 

less overages 

(through 10/31/ 

2007) 1

Adjusted quota 

less overages and 

RSA 

Possession limits 

(Per trip) 2

lb mt lb mt lb mt 

lb mt lb mt lb kg 

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 

1An overage of 624,876 lb (283 mt) occurred during the 2007 Summer quota period 

2The 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 

Increase in 

initial Winter II 

possession limit 

Final Winter II 

possession limit 

after rollover from 

Winter I to Winter II 

lb kg lb mt lb kg lb kg 

2,000 ........................................................ 907 0–499,999 0–227 0 0 2,000 907 

2,000 ........................................................ 907 500,000–999,999 227–454 1,500 680 3,500 1,588 

2,000 ........................................................ 907 1,000,000–1,499,999 454–680 3,000 1,361 5,000 2,268 

2,000 ........................................................ 907 1,500,000–1,999,999 680–907 4,500 2,041 6,500 2,948 

2,000 ........................................................ 907 2,000,000–2,500,000 907–1,134 6,000 2,722 8,000 3,629 

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 

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Federal Register / Vol. 72, No. 249 / Monday, December 31, 2007 / Rules and Regulations 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. 

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 courtordered 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 

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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 (7,153- 

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 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 

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 

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- 

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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 15.77- 

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 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 peerreviewed 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. 

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 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. 

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 

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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 5.02- 

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 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 RSA 2007 Commercial 

quota overage 

Preliminary 

adjusted 

commercial quota 

Preliminary 

recreational 

harvest limit 

Quota Alternative 1 (Preferred): 

Summer Flounder ........................... 15.77 

(11,793) 

0.233 

(106) 

0.09 

(41) 

9.2 

(4,187) 

10.26 

(4,653) 

Scup ................................................ 7.34 

(7,380) 

0.214 

(97) 

0.62 

(283) 

4.62 

(2,095) 

1.83 

(830) 

Black Sea Bass .............................. 4.22 

(3,629) 

0.086 

(39) 

0.00 2.03 

(920) 

2.11 

(957) 

Quota Alternative 2 (Most Restrictive): 

Summer Flounder ........................... 11.64 

(10,700) 

0.233 

(106) 

0.09 

(41) 

6.75 

(3,061) 

4.56 

(2,068) 

Scup ................................................ 5.02 

(4,885) 

0.151 

(97) 

0.62 

(283) 

2.92 

(1,324) 

1.33 

(603) 

Black Sea Bass .............................. 3.75 

(3,402) 

0.086 

(39) 

0.00 1.80 

(817) 

1.87 

(848) 

Quota Alternative 3 (Status Quo-Least 

Restrictive): 

Summer Flounder ........................... 17.112 

(13,744) 

0.233 

(106) 

0.09 

(41) 

10.03 

(4,540) 

6.75 

(3,061) 

Scup ................................................ 12.00 

(7,484) 

0.214 

(97) 

0.62 

(283) 

8.32 

(3,773) 

4.2 

(1,905) 

Black Sea Bass .............................. 5.00 

(3,719) 

0.086 

(39) 

0.00 2.41 

(1,782) 

2.51 

(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. 

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Federal Register / Vol. 72, No. 249 / Monday, December 31, 2007 / Rules and Regulations 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 

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 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; emergency 

action; extension of effective period; 

request for comments. 

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 

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 http://www.nero.noaa.gov/ 

nero/hotnews/redtide/index.html. 

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 http:// 

www.regulations.gov. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

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 

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 

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