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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
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 31, 2007 (Volume 72, Number 249)]
[Rules and Regulations]
[Page 74197-74207]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de07-11]
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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
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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
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\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
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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
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\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
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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
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Black Sea Bass
For 2008, the target exploitation rate for black sea bass is 25
percent. The FMP specifies that the TAL associated with a given
exploitation rate be allocated 49 percent to the commercial sector and
51 percent to the recreational sector. The recreational harvest limit
is allocated on a coastwide basis. Recreational measures will be the
subject of a separate rulemaking early in 2008.
This final rule implements the specifications contained in the
November 14, 2007, proposed rule: A 4.22-million-lb (1,194-mt) black
sea bass TAL. After deducting 85,790 lb (39 mt) of RSA for the three
approved research projects, the TAL is divided into a commercial quota
of 2,025,763 lb (919 mt) and a recreational harvest limit of 2,108,447
lb (9569 mt). If a proposed project is not approved by the NOAA Grants
Office, the research quota associated with the disapproved proposal
will be restored to the black sea bass TAL through publication in the
Federal Register. Consistent with the revised quota setting procedures
for the FMP, black sea bass overages are determined based upon landings
for the period January-September 2007, plus 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